*2 BROWN, Before JOHN R. Chief Wood’s claim as the oil un- Judge, *, (.27 and RIVES and McENTEE der acre) his small lot was Judges. part Circuit opera- 40-acre in a unit tract tions and Wood is entitled to his PER CURIAM: pro proceeds rata share the net from *3 pool, the rather than to the oil itself. course, is, Jurisdiction of our Gathering Wood v. Citronelle-Mobile Appellate jurisdic consideration. first System 1966, Co., 662, 279 Ala. 189 So. appeal tion exists since the is from is, 2d 346.1 That determination of judgment final of the district court. 28 course, binding by in this case collateral the U.S.C. Jurisdiction of dis § 1291. estoppel. Ballard First National v. ground court trict was asserted on the of Birmingham, 1958, Bank of 5 Cir. 259 diversity citizenship, requires of which 681, F.2d 684. Thus is no conversion controversy that the in exceed matter possible. $10,000.00 the sum or value exclusive of of interest 28 U.S.C. 1332. costs. § theory The second based on complaint sought The the recov pay refusal a debt in con sounds ery ($1,000.00) of one thousand dollars tract, and under the law of Alabama the damages in actual and one hundred motive or intent of the ma debtor is not ($100,000.00) puni dollars in thousand Telegraph terial. Western Union Com damages tive two and al different pany Rowell, 1907, 295, v. 153 45 Ala. (1) by ternative theories: conversion 73, generally Alabama, In So. 78. as the defendants to their own of use crude elsewhere,2 damages punitive are not $1,000.00, prop oil of the value the of recoverable for breach of contract. erty plaintiff; (2) “willful, of the Telegraph Company Union Western v. wrongful intentional, re and malicious” Rowell, supra; Tele Western Union pay fusal of the defendants Benson, graph Company 1909, v. 159 $1,000.00 money in which defendants 712, 719; 254, Ala. 48 So. Treadwell damages plaintiff. owed The actual Ford, 544, Leek, 1961, Inc. Ala. v. 272 ju confer claimed are sufficient 24, 133 So.2d 25. punitive dam risdiction. The claim of appears un therefore that ages sufficient, apparent is it is unless plaintiff’s der is neither of the theories legal certainty punitive dam to a that recovery damages punitive pos the of ages in an sufficient to confer amount sible, actually amount in that the jurisdiction Bell recovered. could be controversy jurisdiction less than the is 1943, Society, Preferred Assur. Life v. al amount. The defendants’ motion 5, 238, 15. 88 L.Ed. 320 U.S. 64 S.Ct. jurisdiction dismiss lack should theory Under the first sound allegation sustained. The pun ing conversion, in tort for trover or jurisdictional having amount been trav damages legally permissible if itive by motion, ersed that the burden of es Roan can established. the conversion be tablishing up requisite the amount was McCaleb, 1955, 31, 84 So.2d 264 Ala. v. plaintiff. on the Mo McNutt v. General 358, 359; Wood v. Citronelle-Mobile Acceptance Corp., 1936, tors 298 U.S. Co., Gathering System Cir., 362 5 1135; 56 S.Ct. 80 L.Ed. difficulty this under F.2d 354. Holtzoff, Barron & & Federal Practice theory interpleader suit be- is in an (Wright ed.) Supreme p. Procedure n. parties the § the same tween the held that Alabama has Court 50.2.
* by designa- Circuit, sitting preparing opinion the First this Of Court its tion. decision. day See, rendered one be 2. That decision was A.L.I. Restatement of Contracts ; Damages 120; fore decision Wood Court’s § 25 C.J.S. § Co., Gathering System Corbin Citronelle-Mobile on Contracts § by supra, but late considered too to be that, matter either
It does not before FOR REHEARING ON PETITION reported in this decisions the two P. motion to substitute James judg- case, plaintiff had recovered a the Wood, Wood as Administrator A. E. against ment the defendants trover granted. Appellant, deceased $446.49, which the de- conversion for is no There substance the contention appealing. paid had fendants without that this Court has reversed or overruled judg- answer to the. contention that reported F.2d its earlier decision in 362 interplead- judicata res ment was pendency 354. There it was held that the suit, Supreme er Alabama Court interpleader in a court action state said: require permit did not dismissal “The answer to this contention diversity in federal action court. interpleader action involves present holding dis- is that federal *4 money, parties, different different jurisdiction the trict court lacked because and The different oil different issues. controversy in exceed matter did not previous action at law was trover. $10,000.00. support the To the action trover of damages sought re- actual to be The have, of the must at the time peti- only $1,000.00. covered were The conversion, right gen property, the of holding not our that tioner does contest special, possession eral or the or and punitive damages not recoverable are right possession. These immediate of may for of be breach contract whatever rights plaintiff at must concur in the His the or of debtor. motive intent the conversion, the or the ac the of time argument possible the for is that it is tion son, not lie. v. Hender will Jordan claim to be that the defend- established and So.2d 258 Ala. crude their own ants converted to use in cited. In this action of cases there prop- $1,000.00, oil the of the value of ownership terpleader, of the oil was erty plaintiff, punitive of and that the vital issue.” may damages of recovered because be Gathering Wood v. Citronelle-Mobile that conversion. System Co., supra, at 348-349. 189 So.2d interpleader Supreme action In the the authoritatively held, there was right held Court of Alabama had that the pro effect, to his claim was Wood’s special, ownership oil, general of of the money he rata the and share of right possession and or the immediate pos- unqualifiedly neither owned plain- possession of “must concur in the any part pool nor of the of oil sessed conversion, the tiff time of at the the right posses- its had immediate to the action will lie.” Wood v. Citronelle- holding the earlier sion. The trover Gathering System Co., Mobile previous lot oil drawn action as to a of The Ala. So.2d 348-349. (unless pool from that was erroneous that, had under same case further held facts), and the er- there were different operation, the oil “the owner of unit repeated. ror to be does pro share shall his rata interest receive directing a Instead of verdict proceeds pool his of the from the and bear expenses pro produc- defendants, court rata share of of for district the the the under at oil tion.” 189 So.2d 347. The should the action have dismissed oil with .27 acre had been mixed Wood's judgment jurisdiction. want remaining and unit the 40 acre under re cause therefore reversed and the only pro rata to his Wood was entitled the to dismiss manded with directions pool. proceeds of the net from share the jurisdiction. action for want of Costs change occurs No material because against appel appeal the taxed storage right provide facilities Wood’s lant. oil in kind at elect receive ever made head. No has well claim with direc- Reversed remanded unlikely event occurred. that such tions. did, had until it and Wood Unless right posses- possession or actual fungible part specific of a sion oil,
pool of trover or eon- the action short, Wood not lie. would
version of establish- his burden failed sustain controversy
ing ex- matter in $10,000.00. the sum or value ceeds rehearing petition therefore
denied. REHEARING PETITION FOR
ON REHEAR-
AND PETITION FOR EN BANC
ING Supplemental Rehear- Petition for panel
ing no member of is denied and Judge regular active service
nor having requested that
the Court rehearing banc, polled on en Court be (Rule Appellate Pro- 35 Federal Rules of
cedure; 12) Local Fifth Circuit Rule Rehearing
the Petition for En Banc is
denied. America,
UNITED STATES of Plaintiff-Appellee, POPE,
Thomas Defendant-Appellant. L.
No. 16893. Appeals
United States Court of
Seventh Circuit.
March
Rehearing En Banc Denied
13,May