maximum of three days from his employment. At his monthly salary rate this could not exceed $ 82.50. His mileage to and from Jamestown, New York, would not exceed $ 12. Thus his total special damages could not exceed an aggregate sum of $ 1,294.50. These are the items recoverable under the Restatement, Section 671(b).
As to any other specific pecuniary loss, none can be supported by the evidence. Under Section 671(a) of the Restatement plaintiff would have been permitted to offer evidence and to recover for any actual physical harm as a result of his arrest but none was claimed by plaintiff, nor was there any testimony concerning such a claim. Plaintiff did attempt to establish that he was prevented from selling the piece of property involved and thus was damaged to the extent of a loss of profits. However nothing indicated that the inability to sell this property was a direct result of the criminal prosecution. In the same tone he attempted to establish his inability to increase a mortgage already on the property. He was unable to produce any testimony by third persons to establish that a criminal prosecution, as opposed to the admitted title dispute in existence for several years prior to 1956, was the sole reason for the inability to raise money on this property. The only claim for damages for loss of profits relating to the sale of the real property was the sum of $ 1,900.
Turning then to general damages which might have been permitted plaintiff under Section 670 of the Restatement the proof is simply inadequate to support an award anywhere near the amount necessary in this case to aggregate a total claim of $ 10,000. The proof shows that plaintiff was insisting upon a settlement of the controversy. He committed a pure act of aggression in order to bring the case to a head. He expected the result. He stated that he was not under any distress of mind by reason of fear of conviction. He had perfect confidence in his case at all times. No medical witnesses were called by plaintiff. By his own admission the proceedings did not cause him any embarrassment in his social life. The only fact he testified to regarding a harm to his reputation was the posting of articles of local newspapers on the bulletin board at plaintiff's place of employment. The newspapers followed the course of the proceedings. The postings on the bulletin board however could not have occurred over eight times as there were two newspapers and each carried articles not over four times. The plaintiff specifically ruled out any embarrassment because of the proceedings by his statement that his friends stuck by him. His words were, 'I think I had a chance to explain myself and I think they stayed with me'. Plaintiff did say however that he was embarrassed at work because he was criticized, 'by saying I was trying to throw off a war memorial, which I wasn't.' The dispute as to the title to the War Memorial ground was a matter of public interest and it was a factor leading up to the arrest, but the prosecution of itself did not cause the dispute in the first instance. The major controversy was the property dispute. Under all of the plaintiff's testimony, the arrest caused him the loss of a few days wages, some expenses, but the evidence in its best light and viewing it most favorably to plaintiff does not warrant a finding for plaintiff in damages beyond a negligible amount as general damages for any harm to his reputation or distress resulting from the initiation of the prosecution. Plaintiff's very appearance and manner indicated that he was an aggressive and strong minded individual. Until the bench was placed on the lot plaintiff had no easy method of bringing the dispute to a climax. He had been unable to get any action from the supervisors. It is apparent however that the bench gave plaintiff the opportunity which he had sought, that is to bring the dispute to a head. He seized upon it and was not surprised by his arrest. The point is that under this factual situation plaintiff cannot be heard to claim punitive damages.
This court is satisfied to a certainty that from the proofs offered by plaintiff at the trial of his case he was never entitled to recover the jurisdictional amount. From the start his claim was therefore colorable for the sole purpose of conferring diversity jurisdiction. See the recent decision Matthiesen v. Northwestern Mutual Ins. Co., 5 Cir., 1961, 286 F.2d 775; see also a decision handed down by John W. McIlvaine, a judge of this court, on May 4, 1960, Diana v. Canada Dry Corp., 189 F.Supp. 280. To permit this plaintiff and his counsel to enlarge a neighborhood Justice of the Peace dispute over a boundary line into a federal case is simply to emasculate the diversity statute. Plaintiff never did have a $ 10,000 lawsuit. The diversity jurisdiction of the Federal court cannot be invoked simply by a demand made by a plaintiff in the addendum clause that the amount in controversy exceeds $ 10,000, when the proofs at the trial show to a legal certainty that an award of even one-half of the necessary jurisdictional amount would have been excessive. Such is this case. The evidence in this case requires a dismissal of this civil action even after the case has been tried. It will be so ordered.
Plaintiff's Objections To Defendants' Bill Of Costs
Plaintiff's counsel has filed objections to certain of the items in defendants' bill of costs. Plaintiff's objection No. 1, as filed December 5, 1960, is sustained. Plaintiff's objection to items, Nos. 2 & 3, that is the reporter's charge for a copy of the pre-trial conferences, is overruled as it is believed that it is covered under 28 U.S.C.A. § 1920(2) as being a part of the stenographic transcript necessarily obtained for use in the case. Plaintiff's objection to item No. 4 is sustained and in any event that item has been withdrawn from defendants' bill by their counsel. Plaintiff's objections to items, Nos. 5, 6, & 7, are overruled and these bills are considered proper as they cover attendance of witnesses and sums reasonable and permitted under the statute.
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