which are generally classified as 'whip-lash' injuries. The defendant produced medical testimony to show that the plaintiff shows no present symptoms which are clearly related to the injury but which are more likely related to the pre-existing physical condition of the plaintiff, primarily her extreme obesity and consequent disturbance of her posture and spinal column. Plaintiff's evidence as to loss of future earning power was slight but she testified that she had in years past taken in some ironing work for pay and that she intended in the future when their adopted daughter would be old enough to require less care to do some further domestic work for wages. We think that the jury might have properly considered this evidence and that they were properly instructed as to this fact.
The plaintiff's testimony covered the range of activities which she engaged in prior to the accident which included all her domestic work and the maintenance of a vegetable garden for the family where she did the heavy work of spading, digging and using a pick-axe. She testified that since the accident she has been unable to maintain a garden and has been unable to do all her own housework and requires the help of other women to do this work. Monetary damages for this expenditure was disallowed as being part of the husband's claim.
We feel that all of the allegations of the complaint as to the wife's pain, suffering, discomfort and disability are supported by some evidence and that these were properly for the consideration and evaluation by the jury. The fact that the jury's verdict is in an amount of less than $ 10,000 does not establish to any degree that the claim was made in bad faith nor does it oust the court of jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab. Company, 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845 (1938).
For a determination of the issue here we must assess the amount in controversy as measured at the time of commencement of the action. As was stated in Conley v. Gibson, 355 U.S. 41, at p. 45, 78 S. Ct. 99, at p. 102, 2 L. Ed. 2d 80:
'In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'
There is no allegation here that the plaintiff's claim was made in bad faith. Therefore, under the doctrine re-affirmed in a large body of cases we are limited to the determination of whether or not, to a legal certainty, there are no set of facts which the plaintiff could produce in support of her allegations to substantiate a demand in excess of $ 10,000. While the jury awarded the plaintiff $ 2,000 after evaluating her testimony and the testimony of the defendant opposing her claim, there is nothing in the record of the case to show that to a legal certainty it would be impossible for her to produce evidence in support of her allegations in the complaint of damages in excess of $ 10,000. The jury's verdict is in the evaluation of her damages in the light of her evidence to support, and the defendant's attack on this evidence by cross-examination, and by evidence in chief on its own case.
Under all the evidence in this case and on an examination of the pleadings we are unable to say that it appears to be legal certainty that the plaintiff could not have recovered in excess of $ 10,000 under the allegations made in this complaint.
The motion will, therefore, be denied.
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