General Acc. Fire & Life Assur. Corp. v. Mostert

Fifth Circuit

General Acc. Fire & Life Assur. Corp. v. Mostert

131 F.2d 596, 1942 U.S. App. LEXIS 2890

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 30, 1942

DocketNo. 10251

StatusPublished

Cited by4 cases

This text of 131 F.2d 596 (General Acc. Fire & Life Assur. Corp. v. Mostert) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

General Acc. Fire & Life Assur. Corp. v. Mostert, 131 F.2d 596, 1942 U.S. App. LEXIS 2890 (5th Cir. 1942).

Pincite

Opinion

SIBLEY, Circuit Judge.

N. J. Mostert made a claim for compensation before the Texas Industrial Accident Board for an industrial injury. He was awarded payments aggregating $1,-350.00. The insurer, appellant here, brought suit in the district court to set the award aside, alleging as the basis of federal jurisdiction diverse citizenship and an amount involved in excess of $3,000. Mostert moved to dismiss because the amount in controversy is less than $3,000. No evidence was taken, but a certified copy of the papers before the Board appears in the record and was considered in rendering judgment. The suit was ’ dismissed for want of jurisdiction and this appeal questions that judgment.

It is conceded that under the Texas Compensation Law, Vernon’s Annotated Civil Statutes of Texas Art. 8306, a suit to set aside an award opens up for trial de novo the claim filed with the Board; and we assume, as the parties do, that the amount here in controversy is the largest amount that could be recovered under the claim. The claim names no sum, but states the nature and extent of the injury thus: “Hot metal stuck to edge of left ear drum causing terrible pain and deafness; ear has been ringing, since, frequent earache with pain running down along jaw bone, incised ear drum did not heal. So I cannot bear [597]*597either wind or water in it.” His supporting affidavit states, “Molten metal fell into left ear causing loss of hearing, constant ringing in ear, frequent severe pains, cannot allow either wind or water in ear because of unhealed drum.” Claimant’s weekly wages are stated, on which compensation is based, and the maximum allowable can be figured. Counsel agree that if injury to the ear is alone claimed, the maximum cannot exceed $3,000. If a general bodily injury is claimed also, the maximum will exceed $3,000. We think an injury to the left ear alone is claimed. The pain mentioned as running down along the jaw bone evidently originates from the ear. It is not claimed the jaw bone is injured, or any other portion of the body. The burden of establishing federal jurisdiction is on him who alleges it. Buck v. Gallagher, 307 U.S. 95, 59 S.Ct. 740, 83 L.Ed. 1128; Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135. That burden is not well carried.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

SIBLEY, Circuit Judge.

N. J. Mostert made a claim for compensation before the Texas Industrial Accident Board for an industrial injury. He was awarded payments aggregating $1,-350.00. The insurer, appellant here, brought suit in the district court to set the award aside, alleging as the basis of federal jurisdiction diverse citizenship and an amount involved in excess of $3,000. Mostert moved to dismiss because the amount in controversy is less than $3,000. No evidence was taken, but a certified copy of the papers before the Board appears in the record and was considered in rendering judgment. The suit was ’ dismissed for want of jurisdiction and this appeal questions that judgment.

It is conceded that under the Texas Compensation Law, Vernon’s Annotated Civil Statutes of Texas Art. 8306, a suit to set aside an award opens up for trial de novo the claim filed with the Board; and we assume, as the parties do, that the amount here in controversy is the largest amount that could be recovered under the claim. The claim names no sum, but states the nature and extent of the injury thus: “Hot metal stuck to edge of left ear drum causing terrible pain and deafness; ear has been ringing, since, frequent earache with pain running down along jaw bone, incised ear drum did not heal. So I cannot bear [597]*597either wind or water in it.” His supporting affidavit states, “Molten metal fell into left ear causing loss of hearing, constant ringing in ear, frequent severe pains, cannot allow either wind or water in ear because of unhealed drum.” Claimant’s weekly wages are stated, on which compensation is based, and the maximum allowable can be figured. Counsel agree that if injury to the ear is alone claimed, the maximum cannot exceed $3,000. If a general bodily injury is claimed also, the maximum will exceed $3,000. We think an injury to the left ear alone is claimed. The pain mentioned as running down along the jaw bone evidently originates from the ear. It is not claimed the jaw bone is injured, or any other portion of the body. The burden of establishing federal jurisdiction is on him who alleges it. Buck v. Gallagher, 307 U.S. 95, 59 S.Ct. 740, 83 L.Ed. 1128; Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135. That burden is not well carried.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

131 F.2d 596, 1942 U.S. App. LEXIS 2890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-acc-fire-life-assur-corp-v-mostert-ca5-1942.

Opinion

Related

Cite This Page — Counsel Stack