*2 GARDNER, Bеfore VOGEL and VAN Judges. OOSTERHOUT, Circuit Judge. GARDNER, Circuit brought Appellant plaintiff as below this action for al- leged fraud and for and deceit appellee on sale behalf of a so-called horse. The transac- show pleaded tion was counts. Herein- after, pаrties we shall refer plaintiff defendant, respectively. complaint plaintiff In count one her substance, pertinent, so far as here al- leged purchased from de- fendant a mare or about Decem- show 5, 1957, represented ber to be sound and by plaintiff mare, fit be used a show paid $3,750.00; for which said mare fit was never mare; use as a show that the mare suf- neurectomy (severed nerves) fered from legs, in both front defendant knew the time sale and which plaintiff; never disclosed to that said foundering mare money lаrge expenditure ar- and the chronic a condition laminitis and thritis, great inconvenience condi- made and the said because be- never incurred and the humiliation for and unfit tions, mare said knowledge pur- public mare—the cause show as a used ablе *3 having large a purchased expenditures not and mare was said pose which for griev- mare, show that she suffered to total loss awas —and therefore nominal; anguish great dis- only and ous mental tiff, mare’s as the value body and and nerves tress thereby mind the of knew that that defendant severed, damaged of in the sum legs mare were of said front the ordinary in- Hundred Five Seven Thousand on discernible was not which ($7500.00) failed defendant Dollars.” the spection, and which time prior to to disclose alternative, plaintiff in a secоnd the re- sale; plaintiff offered to alleged count fit- of refund for a asked and the mare turn ness as a show horse and claimed as dam- by refused money paid, which ages $3,750.00, purchase price the of the defendant. mare, made, $1,963.38 expenditures for сomplaint her first of Plaintiff’s count humiliation, $7,500.00 and incon- for misrepresenta- and fraud on based grievous anguish venience, and mental damages $3,750.00, of asked tion and she ground body mind, distress of and $1,963.38 mare, paid for the amount the said mare was not sound and board, expеnded money for sums of for care, free from hidden would defects which medicine, services, veterinary keep, impair horse, its usefulness as a show items shoeing other miscellaneous and for the reason that said mare suffered inconvenience, expense, $7,500.00 for neurectomy (severed nerves) from anguish grievous humiliation, mental legs, both front which was discernible mind, $10,- body and and and distress ordinary inspection, on damages. punitive 000.00 foundering mare was also or laminitis and a condition of chronic right ground to recover for her As right As basis for her arthritis. to alleged damages punitive she that: damages anguish cover for mental and “ *- * * wil- acted defendant body repeated distress of and mind she maliciously wantonly and and disregard fully, allegations alleged verbatim the and an to recklеss with a first count of her basis rights for the care want entire right damages. her to recover such indif- with conscious plaintiff, and consequences ference motion, On the court struck from might and result which did allega- both counts represen- acts and from defendant’s tations, alleged right tions as the basis for her ”* * * damages anguish recover for mental and body by court, and mind. The distress ground her to recover and the same dismissed the second anguish body and distress of for mental complaint, expressing mind: and by striking allegation view that * “* (cid:127)* she had taken the second count reference to dam- riding and shown lessons had horses ages by suffered her reason mental developed and had instances in a few anguish body mind, distress great desire own show mare of longer no ex- developed in- and had her own ceeded, exclusive costs, of interest to own and desire this tense show $10,000.00. sum From this had become attached to mare striking from both counts of com- her, direct that as a result and allegations by plaint sought which she consequence of this mare’s natural inability recover perform show and purchased body for which she was distress service and mind dis- missing prose- juris- count, plaintiff properly pleaded, the second then the court’s appeal. cutes this diction attaches when the subsequent proceedings ordi- filed and narily observed, As court struck has been juris- will divest the court of complaint the both Anderson-Thomp- diction once attached. son, Logan Co., Cir., 238 Inc. v. Grain anguish and for mental Casualty Fidelity 598; American Having elim- distress and mind. Milling Co. v. Owensboro allegation damages, inated as to Freight 109; T. Lines S. C. Motor then dismissed second Lines, D.C.La., 4 Inc., Truck v. Leonard ground involve the that it did not *4 F.R.D. Federal Courts § 36 C.J.S. necessary amount to confer d(2), 537; p. Fac- 310 v. Colonial Straf on the trial court. 554; Cir., Corporation, F.2d 273 tors or There was but one transaction Mercury Indemnity Red Paul St. v.Co. controversy alleged complaint. in the Co., 586, 283, Cab 303 U.S. alleged The first transac 845; of L.Ed. United Steelworkers theory tion sounded in tort. it America, C.I.O. v. Tel. International Then, precaution, out anof abundance of 602; D.C.Minn., Corp., F.Supp. Tel. pleaded in thаt her the alternative she right Co., Paul Jones v. Fire Marine Ins. St. recovery breach was based Cir., F.2d 123. In Anderson- right do contract. This she had a Logan Thompson, Co., Inc. v. su- Grain 18(a), under rule Federal Rules of Civil said; pra 601], it F.2d is [238 Procedure, 28, part U.S.C., Title which “In the absence of bad оr faith provides: collusion, jurisdic- present, not here complaint “The in his or tion attaches at the moment of the setting reply in a forth a counter- filing complaint exist- claim and the defendant in an answer good ence of defense or a volun- setting mаy forth a counterclaim tary involuntary or reduction of the join independent either as or as al- change claimed, or ternate claims as claims either action, juris- cause of will not defeat equitable may or or both as he previously acquired.” diction against opposing have party.” an Corpora- In v. Colonial Straf Factors evidence, If, under the she should be en- tion, supra 557], [273 we said: titled to recover under the first count of complaint, every controversy “The amount in or- she could rеcover is damage alleged dinarily al- element be determined in the second legations complaint. count of rather actually may than the amount that generally A cause action is generally recovered. It is held defined as the fact or facts which estab complaint specifically that alleges where give right action, lish or rise ato controversy, an amount party existence of which affords a costs, of interest and exclusive ex- judicial relief. Federal Reserve Bank $3,000.00, that is cess sufficient Atlanta, Surety ofUse American jurisdiction on the un- confer York of New Co. Atlanta Trust less are made in bad 117 A.L.R. faith.” Larwill, & O. R. Co. v. 83 Ohio Baltimore Freight In T. C. Motor S. Lines 93 N.E. 34 L.R.A.N.S. St. Lines, Inc., supra Truck Leonard F.R. [4 Emory v. Hazard Powder 22 S.C. 367], said, is inter alia: D. Generally, jurisdic 476. allega specific perform- is to be determined suit for tion “If good allega if the filed in tions ance faith good are made tions value in sufficient to jurisdictional support jurisdiction, faith amount is then the fact renewed, it If 443. of dam- S.Ct. demand alternative appeal should will be reviewable on $3,000 ages would less than judgment proceed adverse to final no difference.” made have plaintiff. is vacated order therefore The America, In Steelworkers United any opinion its expressing without Tel. Tel. and International C.I.O. v. Corp., correсtness. 604], F.Supp. rule supra [133 two of order stated follows: plaintiff’s complaint is reversed and has of this “If time the attached as of two, by one and destroyed removed, is not filed by subsequent reduction mind, is vacated distress the claim.” amount of further remanded for and thе cause is & Marine Fire v. St. Paul Jones proceedings with this not inconsistent 125], Co., supra isit said: Ins. [108 opinion. require in new seek to “The rules always has been action what civil Judge OOSTERHOUT, Circuit VAN suit, equity all aimed inat concurring). (specially *5 single growing of a trans- claims out agree by result the I with reached the brought in in and settled action be majority opinion that it to the extent 18(a). 13, 15(c), one case. Rules judgment reverses the dismissal may involve one alone That of them plaintiff’s count and re- claim two $3,000 is not an obstacle less than in mands not the I accord with case. am controversy in- as if a whole the expressed by ma- some of views the the much; jurisdiction that volves jority supporting as a basis for the acquired till the once lasts Thus, necessary I versal. ly find to brief- parts of contro- finishes versy.” all thе with my state views. purposes analysis, If for the count good The faith independently two is considered is not controverted the one, without to reference count I believe in error the court that was conclude we the trial court’s dismissal of count two dismissing thе second count of in justified. for want of is The ground there that court, upon trial the basis Missouri in to not sufficient law, permissible reached conclusion a the court. confer damages that no for mental were recoverable a matter a of law in that As to the contention action as that such in court erred both presented general by count The two. allegations by by majority rule stated is that the damages to recover jurisdictional amount is to determined and distress upon complaint. mind, it is to be observed this was that general fully is rule stated in St. order and the court does not a final Mercury Indemnity Paul v.Co. Red Cab purport it a final if to make that Co., 283, 586, 303 U.S. 58 82 S.Ct. L.Ed. by certifying possible, it under were just cited, 845. The court in page case at 54(b), Rule Federal Rules of Civil Pro U.S., page 289 of 303 590 of 58 28, Cеrtainly cedure, Title U.S.C. it did recognizes S.Ct., following exception dispose finally the issues to the rule: Company Mesabi Iron case. v. Reserve Mining Company, Cir., if, from the face of 8 “But apparent, legal Arnold United States for Use of is pleadings, W. B. 427, certainty, Guimarin U.S. that S.Ct. cannot 144, Hamburg- claimed, if, the amount Hohorst recover 262, proofs, Packet is satis- American U.S. from the certainty legal
fied like I believe that there is a valid requires tiff never entitled basis which us reverse amount, judgment claim and that his trial court’s count purpose opinion, majority therefore for the two. colorable As stated jurisdiction, conferring upon the suit count one is based fraud count warranty. will be upon dismissed.” is two based breach Both counts are based the same recognized exception alsо Such is transaction. No the court’s Society, Bell v. Preferred Life Assur. jurisdiction to consider count one is 6, 15, 320 U.S. 88 L.Ed. agree raised. I with the statement where the court states: majority opinion effect «* * * question remains up an alternate count based apparent whether it cer- one, on the same cause of as count action tainty complaint that he joined properly it was addition, recover, could not suffi- Under one. circumstances such as punitive up cient make presented here, acquired are the court requisite $3,000.” jurisdiction over the cause of action as plaintiff by prop serted reason of applica- The court then holds under jurisdictional allegations er found in punitive ble Carolina South law count one. believe the аc I court also presented. are allowable in the situation quired jurisdiction over the alternate Ackerman, Cir., Parmelee v. involving claim the same cause factually case similar though the even alternative claim can respects, present our claiming requi not be construed as *6 considering ju- eliminated, in jurisdictional site supported by Such amount. view is amount, risdictional for dam- Oursler, Hurn U.S. ages for suf- embarrassment and mental fering, found were Fidelity Casualty American Co. recoverable in in a contract Ohio. Milling Owensboro The court states: Practice, 109. See 3 Moore’s Federal that, “And settled ascer- [1], supplemented by page 18.07 taining the amount in supplement. of loose-leaf jurisdictional purposes, ‘where majority opinion properly states gives rule, legal law that court has no to con- action, plain- cause not the appeal sider the the trial from court’s ” regarded.’ demand, tiff’s must be striking order certain my count one. It that view deter- such present In our case the basis of precludеs any mination applicable law I Missouri believe that part our vacate order justified determining trial portion However, of count one. such ap- the face of count two it is present order case causes no sub- parent certainty to a prejudice. stantial tiff is entitled recover the suffering. stated, claimed reason of mental For reasons hereinabove I $7,500 majority The elimination concur conclusion of claim suffering brings amount two jurisdic- asked should below be reversed and $10,000. tional should be remanded.