William P. Gray v. Occidental Life Insurance Company of California, 387 F.2d 935, 3rd Cir. (1968)
Uploaded by
Scribd Government DocsWilliam P. Gray v. Occidental Life Insurance Company of California, 387 F.2d 935, 3rd Cir. (1968)
Uploaded by
Scribd Government Docs387 F.
2d 935
William P. GRAY, Appellant,
v.
OCCIDENTAL LIFE INSURANCE COMPANY OF
CALIFORNIA.
No. 16581.
United States Court of Appeals Third Circuit.
Argued Nov. 20, 1967.
Decided Jan. 8, 1968.
William P. Gray, pro se.
Joseph E. Irenas, McCarter & English, Newark, N.J. (Eugene M. Haring,
Newark, N.J., on the brief), for appellee.
Before HASTIE, FREEDMAN and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
The district court granted defendant's motion to dismiss the complaint for lack
of jurisdiction and ordered dismissal without prejudice on the merits.
The cause of action, set out by a pro se pleader, is founded on a claim for
payments under what appears to be a disability policy by defendant to plaintiff.
The complaint alleges that plaintiff suffered an infection of one of his toes
while he was in Paris, France, and when he returned to the United States
attempted to obtain from defendant his 'insurance compensation' but was told
that no more than $67.85 would be paid to him unless he produced an affidavit
signed by a French physician attesting to the fact that he had fully recovered.
After he obtained such an affidavit defendant again 'refused to honor' its
'obligation'. Plaintiff returned to the United States and sought to obtain payment
from defendant or to effect a settlement, all without avail. The complaint then
goes on to say that since returning to the United States plaintiff has had a
recurrence of 'foot involvement' of the other foot.
Damages are sought in the amount of $25 weekly from March 7, 1965, 'until
settlement', with interest, and in addition $25,000 as punitive damages 'for the
aggravated inconveniences and harassments created by the wilful breach of
contract' by the defendant. The complaint also demands the price of one first
class roundtrip fare from Chicago to Paris.
Jurisdiction is dependent upon diversity of citizenship of the parties and an
amount in controversy exceeding $10,000, exclusive of interest and costs.
Defendant contended that neither of these conditions was met, but the district
court's order does not indicate which ground it accepted, or whether it held both
of them well-founded.
As to the amount in controversy, the complaint was filed on November 29,
1966, and the accumulated payments of $25 weekly from March 7, 1965 until
that date, if they were due, would amount to approximately $2,242. It is
impossible to be certain how long the $25 weekly payments could continue
under plaintiff's version of his claim. He alleges that he demands such
payments 'until settlement', but what that means does not appear. Even if there
were no time limit on the extent of the weekly payments, they would not reach
a total in excess of $10,000, exclusive of interest, until October, 1972.
Since this is a pro se complaint we resolve all doubtful questions in favor of the
pleader. But there is nothing to indicate that plaintiff could possibly obtain a
judgment beyond the approximate amount of $2,242 which had already accrued
when the complaint was filed. There is no basis for acceleration of any
payments falling due after the filing of the complaint so as to render them
payable when the action was instituted. In such a situation the jurisdictional
requirement in diversity is not met. See New York Life Insurance Co. v. Viglas,
297 U.S. 672, 56 S.Ct. 615, 80 L.Ed. 971 (1936).
Nor can the claim of $25,000 for punitive damages be added in measuring the
amount in controversy. Such a claim, 'for the aggravated inconveniences and
harassments created by the wilful breach of contract' by the defendant, rests on
a contract action and is patently frivolous and without foundation.1 While the
plaintiff's right ultimately to prevail is not the test of jurisdiction, there must be
a substantial question raised,2 and where it is clear to a legal certainty that the
relief sought is unavailable the amount attributed to it may not be considered in
computing the jurisdictional amount.3
Plaintiff's remaining claim for the price of transportation between Chicago and
Paris is insufficient to fill the gap in the jurisdictional amount.
When we consider that the illness from which plaintiff suffered in March, 1965,
was an infection of a toe, it is impossible in the light of these facts, making
every intendment in favor of the pleader, to arrive at any conclusion except that
the amount in controversy does not exceed $10,000, exclusive of interest and
costs.
10
The complaint is lacking in clarity on the jurisdictional requirement of diversity
of citizenship. Nowhere does the plaintiff allege the state in which he was
domiciled or of which he was a citizen at the time of the filing of the complaint.
Instead he alleges that he is an American citizen as a result of having been born
in Chicago, Illinois, and then goes on to aver: 'He uses as a legal address, to
receive mail, the home of a cousin at (a specified address in) * * * Illinois; he
also receives mail in New York at: Gen. Post Office, Gen. Delivery, c/o
Seaman's Unit, N.Y. 1, N.Y.' He alleges that defendant's home office is
advertised to be in Los Angeles, California, and that it also maintains offices in
Chicago and New Jersey.
11
There is thus nothing to show precisely the state of incorporation of the
defendant, although its principal place of business is stated to be in California.
Since it is possible that plaintiff may be a citizen of Illinois or even of New
York, and there is nothing in his complaint which would tie him to California,
it may well be that he is a citizen and domiciliary of a state other than that in
which defendant was incorporated and in which it has its principal place of
business. It is for this reason that we do not rest our affirmance of the district
court's order on this second ground.
12
What is before us is an essentially minor claim which taken at its best does not
reveal that the amount in controversy exceeds $10,000, exclusive of interest
and costs. This jurisdictional requirement is one which must be made to appear
affirmatively on the face of the complaint. The district court therefore rightly
dismissed the action without prejudice as to the merits.
13
The order of the district court will be affirmed.
Restatement of the Law, contracts (1932) 342; see cases collected in Annot. 84
A.L.R. 1345 (1933) and its supplements
Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)
First National Bank of Columbus, Ohio v. Louisiana Highway Commission,
264 U.S. 308, 44 S.Ct. 340, 68 L.Ed. 701 (1924); Young v. Main, 72 F.2d 640
(8 Cir. 1934). See also Wilson v. American Chain & Cable Co., Inc., 364 F.2d
558, 563 (3 Cir. 1966); Jaconski v. Avisun Corp., 359 F.2d 931, 934 (3 Cir.
1966)
