Horace Hart v. United States Fidelity and Guaranty Company

304 F.2d 572, 1962 U.S. App. LEXIS 4748

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 20, 1962
• Docket: 19184_1
• Status: Published

Opinions

CAMERON, Circuit Judge.

The facts of this case bring it within the ambit of the decision of this Court in Hardware Mutual Casualty Co. v. McIntyre, May 1962, 304 F.2d 566. The facts in this case are these:

The appellee United States Fidelity and Guaranty Company, a compensation carrier of the employer of the appellant Horace Hart, instituted this diversity action to set aside a $910.00 award to appellant by the Texas Industrial Accident Board covering personal injuries growing out of appellant’s employment. The complaint alleged that the amount in controversy exceeded $10,000.00. The appellant-employee moved to dismiss for want of jurisdictional amount, specifically denying in his answer that the amount in controversy exceeded $10,000.00, and filing a counterclaim for damages in the sum of $6,310.00. The appellant-employee, pro se, had filed a general claim for compensation with the Board for an injured back, but he did not claim more than $10,000.00 or any specific amount.

On the day of trial, June 12, 1961, the appellant consented to the exercise of jurisdiction by the court below,¹ and the trial proceeded, resulting in a judgment in favor of the appellant for $1,224.00 and costs, plus $385.00 previously paid under the maximum compensation rates. The appellant Hart had also filed suit in a state court of Texas to set aside the Board’s award in which he demanded damages in the sum of $6,310.00 compensation, which suit is still pending. The appellee-insurer filed a plea in abatement in the state suit on the ground that this action was already pending in the court below.

The appellant-employee duly perfected his appeal to this Court. Prior to the judgment of this Court the appellant-employee filed a petition for writ of cer-tiorari to the Supreme Court of the United States. The Supreme Court denied certiorari on November 16, 1961, Hart v. United States Fidelity and Guaranty Co., 368 U.S. 899, 82 S.Ct. 178, 7 L.Ed.2d 95.

Based upon the decision of this Court in the case of Hardware Mutual Casualty Co. v. McIntyre, supra, the judgment here before us is reversed and the case is remanded to the district court for the entry of judgment dismissing this action on the ground that the statutory amount is not in controversy.

Reversed and remanded.

1 . The waiver of jurisdictional amount by the appellant has no validity, it being settled that jurisdiction may not be conferred by consent, Kelly v. Hartford Accident & Indemnity Co., 5 Cir., 1961, 294 F.2d 400, 409; People’s Bank v. Calhoun, 102 U.S. 256, 26 L.Ed. 101; American Fire and Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702.

1a. See Judge Hutcheson’s dissent in Hardware Mutual Casualty Company v. McIntyre. 5 Cir., No. 18557, also decided today, 304 F.2d 566.