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Nelson v. Keefer

decided as amended december 17 1971.: November 15, 1971.

ERNEST NELSON, 3RD, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, ET AL., APPELLANT IN NO. 19416.
v.
ERNEST KEEFER AND FRANK KEEFER V. HOWARD BRINKLEY AND WALTER G. LOCKE, THIRD PARTY DEFENDANTS. APPEAL OF ERNEST J. NELSON, JR., IN NO. 19417. APPEAL OF PATSY NELSON, IN NO. 19418



Van Dusen, Aldisert and Gibbons, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

These appeals question the propriety of dismissing a personal injury diversity action at pre-trial because the district court concluded that it appeared "to a legal certainty" that the claims were "really for less than the jurisdictional amount"*fn1 of $10,000.*fn2

Appellants concede that the court had the power to determine the facts requisite to jurisdiction, Wetmore v. Rymer, 169 U.S. 115, 18 S. Ct. 293, 42 L. Ed. 682 (1898), but contend that the cause should not have been terminated at pre-trial because of the possibility of adducing proof later as to the extent of the injuries.

Thus posited, the issue is whether the facts alleged at pre-trial supporting the complaint were legally insufficient to give rise to a $10,000 claim. St. Paul Mercury Indemnity Co. v. Red Cab Co., supra ; Gray v. Occidental Life Insurance Co. of California, 387 F.2d 935 (3rd Cir. 1968); Jaconski v. Avisun Corp., 359 F.2d 931 (3rd Cir. 1966); Wade v. Rogala, 270 F.2d 280 (3rd Cir. 1959). It is appropriate to emphasize that "this court has taken the lead in recognizing diversity jurisdiction over an entire lawsuit in tort cases presenting closely related claims based, in principal part at least, on the same operative facts and normally litigated together, even though one of the claims, if litigated alone, would not satisfy a requirement of diversity jurisdiction."*fn3 Thus, if any of the three plaintiffs meets the jurisdictional amount, we will extend hospitality to the other claims.*fn4

In their combined pre-trial statement, appellants allege that, as a result of an automobile accident caused by defendant's negligence, the minor son sustained a thoracic lumbar sprain, and, as of August 20, 1968 -- three years after the August 21, 1965 injury -- he had incurred a physician's bill of $95.50, hospital expenses of $15.00, and a $25.78 bill for a back brace. Reports of physicians indicate that he was seen by them on four occasions: August 21, 1965, September 1, 1965, November 29, 1965, and February 6, 1968. X-rays taken on August 24, 1965, and November 26, 1965, were negative.

The wife-plaintiff was diagnosed as having sustained a hematoma of the skull, neck lash, and contusions of the right shoulder and right ribs. She was seen by her physician on August 23, 1965, and had an x-ray taken on August 25, 1965, which proved negative. The physician issued a report on October 31, 1966, revealing treatment on August 23, 1965, for which he submitted a bill for $163.00. The bill for the x-rays at St. Luke's Hospital amounted to $65.00, and there was an additional Mercer College Hospital bill for $30.00.

The husband-father supported his claim with the following:

Dr. Brown $322.75

St. Luke's Hospital 262.75

Drugs 18.00

Property Damage 727.69

Dr. Brown's report of October 31, 1966, indicated that Nelson's first treatment was on August 24, 1965, that the diagnosis was "neck lash, bruise left shoulder, pain over lumbar region with tenderness over spleen" and that Nelson "still has pain in neck and shoulder." It is significant that in the 1966 report, Dr. Brown made no attempt to relate the accident to Nelson's hospitalization from August 25 to 28, 1965, which apparently was treatment for "diarrhea, undetermined etiology," including x-rays showing duodenal ulcer symptomotalogy. In analyzing Nelson's medical expenses, the trial court characterized the bills of the physician and hospital as "of doubtful relation of entire bill to the accident because the hospital treatment and Dr. Brown's records deal mostly with his treatment for diarrhea and pre-existing hemorrhoids." Indeed, in answers to interrogatories, Nelson stated ...


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