Canadian Indemnity Co. v. Republic Indemnity Co. of America

POPE, Circuit Judge. In this case Elsie Arno had a Willys automobile and appellee, Republic Indemnity Company, plaintiff below, had issued to her a policy of insurance covering public liability and property damage arising out of the operation of the Willys automobile. The same policy also provided similar protection for Mrs. Arno with respect to other private passenger automobiles while being operated temporarily by her as a substitute for the Willys, the insurance as to such substituted automobiles to be excess insurance over all other valid and collectible insurance available to Mrs. Arno. On January 2, 1952, the Willys automobile was being repaired at the garage of Harry C. Dow who had permitted Mrs. Arno to use his Studebaker car temporarily while the Willys was being repaired. The appellant, Canadian Indemnity Company, had issued to Dow a similar policy of insurance covering the Studebaker car and insuring not only Dow but any other person operating the automobile with his consent. The complaint herein shows that on that date, while Elsie Arno was driving the Studebaker car, “it was involved in an accident with a motorycle belonging to the defendant City of Los Angeles and being operated by defendant Richard R. Stein”. No other particulars as to the extent of the accident or as to the amount of damages, actual or claimed, arising out of that accident are furnished in the complaint or elsewhere in the record. Republic filed its complaint in the court below against Canadian, Dow, Mrs. Arno, her husband, City of Los Angeles, and Stein, alleging that plaintiff Republic was and is an Arizona corporation and citizen of that State; that Canadian was and is a Canadian corporation and a citizen of the Dominion of Canada, and that City of Los Angeles is a municipal corporation of California, and that the individual defendants were residents and citizens of California. The complaint further set forth the facts concerning the issuance of the insurance policies insuring the Willys and the Studebaker automobiles above mentioned, and alleged that a controversy has arisen between the plaintiff Republic and the other persons named as defendants relating to their legal rights and duties under said policies of insurance; that Republic claimed that liability under its policy was limited to excess insurance by reason of [603] the fact that the policy of Canadian was valid and collectible insurance available to Mrs. Arno; that all other parties disputed the contention of Republic Indemnity Company; that the primary liability is under the insurance issued by Canadian Indemnity Company. The prayer was for a declaration of the rights of the plaintiff under its policy of insurance. Judgment below was given to Republic and was to the effect that Canadian Indemnity Company had the primary responsibility to defend and pay damages under its policy. Although the prayer of the complaint and the judgment of the court was for declaratory relief, Title 28 §§ 2201, 2202, yet “The Federal Declaratory Act did not enlarge the jurisdiction of the courts of the United States. It merely provided a remedy for use in cases within their jurisdiction.” Commercial Casualty Ins. Co. v. Fowles, 9 Cir., 154 F.2d 884, 885, 165 A.L.R. 1068; Longview Tugboat Co. v. Jameson, 9 Cir., 218 F.2d 547. It is therefore apparent that if the District Court Ead jurisdiction it must be invoked on the ground that the matter in controversy exceeded, exclusive of interest and costs, the sum or value of $3000 and was between citizens of different States. The complaint sufficiently discloses diversity of citizenship, but neither in the complaint nor elsewhere in the record is there showing of the requisite amount in controversy. Although the question of lack of jurisdiction is not presented in any of the briefs before us, yet this court must take note of an apparent lack of jurisdiction regardless of the failure of the parties to make objection on that ground. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263; Longview Tugboat Co. v. Jame-son, supra. We must conclude therefore that in the state of this record the District Court was without jurisdiction to entertain the cause for want of a showing of the required amount in controversy. Commercial Casualty Ins. Co. v. Fowles, supra. Rule 8(a) (1), Fed.Rules Civ.Proc. 28 U.S.C.A. requires a plaintiff to set forth in his complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends”. The complaint here was thus defective in this respect. This court has heretofore ordered cases dismissed for want of jurisdiction where the complaint was defective. Commercial Casualty Ins. Co. v. Fowles, supra; City of Forsyth v. Mountain States Power Co., 9 Cir., 127 F.2d 583; Levy v. Sisson, 9 Cir., 198 F. 2d 73. There was no pretrial order or pretrial proceeding had and as we have indicated the record of the trial is barren of any evidence to disclose any stated amount in controversy either actual or claimed.1 Since no evidence to supply the lack of this essential allegation was received at the trial, it is impossible that the defective pleading should be “deemed amended” within Rule 15(b) as suggested in Rule 12(h). The judgment is reversed and the ease is remanded with directions to dismiss it for want of jurisdiction. On Motion for Rehearing. Footnotes [1] Apparently at the time of the commencement of the action no suit had been brought by either Stein or the City of Los Angeles to recover for damage to the City’s motorcycle or injuries to Stein. There is nothing in the record with reference to any such action a] though appellants advise in their brief and appellees agree that after the judgment in the court below Stein’s case against Dow and Arno went to trial in the California Superior Court and the jury found for both defendants.