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Carwile v. Public Service Co.

April 5, 1963

LOIS CARWILE, PLAINTIFF-APPELLEE,
v.
PUBLIC SERVICE COMPANY OF INDIANA, INC., DEFENDANT-APPELLANT.



Author: Knoch

Before KNOCH, CASTLE and KILEY, Circuit Judges.

KNOCH, Circuit Judge.

Plaintiff, Lois Carwile, brought suit in the United States District Court to recover damages from defendant, Public Service Company of Indiana, Inc., occasioned by the alleged negligence of defendant's driver. Trial by jury resulted in a verdict for plaintiff. The jury assessed her damages at $11,500. Judgment was entered for plaintiff in that amount.

In its appeal from the judgment, defendant contends that the original Complaint and the first Amended Complaint both failed to establish jurisdiction (by reason of diversity of citizenship) in the District Court. Defendant argues that the Second Amended Complaint, tendered more than two years after the cause of action accrued, or after the running of the pertinent statute of limitations, and after trial, verdict and judgment, cannot remedy the defect, on the theory that such amendment was not the cure of a mere technical defect, but constituted the statement of original jurisdictional facts.

Defendant further contends that prejudicial error occurred through a conversation during a recess of the Court, between plaintiff and her physician, within the possible hearing of one of the jurors.

Defendant does not deny that jurisdictional facts did exist in this case. Defendant contends that they were not timely and aptly alleged. Plaintiff is a resident citizen of Kentucky. Defendant is an Indiana corporation with its principal place of business in Indiana.

In her original Complaint, plaintiff alleged that she was "a resident of McDaniels, Breckenridge County, Kentucky;" and was such a resident at all times thereinafter mentioned. She described defendant as follows:

"Public Service Company of Indiana, Inc., is a corporation, with its principal offices at 1000 East Main Street, Plainfield, Indiana; * * *" [Emphasis added.]

In her Amended Complaint, which reaffirmed all allegations of the original Complaint which were not inconsistent with the Amended Complaint, plaintiff asserted jurisdiction to be founded on diversity of citizenship, and described herself as:

"* * * a citizen of the State of Kentucky, residing at McDaniels, Breckinridge County, Kentucky."

She described &efe &a-t as follows:

"Defendant, Public Service Company of Indiana, Inc; is, and was at all times hereinafter mentioned, a corporation organized and existing under the laws of the State of Indiana, with power to sue and be sued, * * * The principal office of said Defendant is, and was at all times hereinafter mentioned, 1000 East Main Street, Plainfield, Hendricks County, Indiana." [Emphasis added.]

In its Answer to the original and Amended Complaint, defendant expressly admitted that the District Court had jurisdiction of the subject matter and the parties. The District Court's Pre-trial Order, entered after a pre-trial hearing, was expressly approved by counsel for defendant. It includes the following statement:

"On inquiry by the court, the parties informed the court there was no question of jurisdiction of the ...


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