Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
This appeal is taken from the Order*fn1 of the District Court for the Western District of Pennsylvania dismissing the plaintiff's complaint with prejudice on the ground that the jurisdictional amount, 28 U.S.C. § 1331, was not involved.
Of course, the dismissal "with prejudice" is not res judicata as a final decision upon the merits since the ground of dismissal is jurisdictional.*fn2 But the primary issue presented on this appeal is the correctness of the determination that the jurisdictional amount was not involved.
Plaintiff is the administratrix of the estate of Russell L. Smith, deceased. On November 21, 1956, she filed a complaint alleging that the decedent met his death on December 21, 1953, when a fishing vessel on which he was employed by the defendant foundered and sank in Lake Erie. The complaint charged the defendant with negligence, and asserted a claim for relief under the Jones Act, 46 U.S.C.A. § 688. Although not averred in the complaint,*fn3 it appears without dispute that the decedent was about nineteen years old at the time of his death and was survived by his father, who died after this action was brought.It is also undisputed that the decedent was survived by sisters and a brother.
Accordingly, jurisdiction exists in the Federal District Court, if at all, by reason of the application of a law of the United States under 28 U.S.C. § 1331, which, at the time this action was brought, required that the matter in controversy exceed the sum or value of $3,000, exclusive of interest and costs.*fn4 Branic v. Wheeling Steel Corporation, 3 Cir., 1945, 152 F.2d 887, 890, certiorari denied 327 U.S. 801, 66 S. Ct. 902, 90 L. Ed. 1026; Moore v. Central R. Co. of New Jersey, 2 Cir., 1950, 185 F.2d 369.
In the court below, the defendant moved to dismiss for want of jurisdiction, citing 28 U.S.C. § 1332, which is inapplicable. However, the motion was treated by the court and the parties as raising the issue of jurisdictional amount under 28 U.S.C. § 1331. After giving the plaintiff opportunities to present evidence on this issue,*fn5 the District Court entered the Order from which this appeal was taken.
We are of the opinion that Order was erroneously entered.
The Jones Act extends to seamen the benefit of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. That Act creates a liability upon employers in the case of death of an employee "* * * to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such * * * death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier [employer] * * *." 45 U.S.C.A. § 51.
The statute is controlling with respect to the persons on whose behalf the action may be brought. Chesapeake & O. R. Co. v. Kelly, 1916, 241 U.S. 485, 491, 36 S. Ct. 630, 60 L. Ed. 1117. It therefore readily appears that the complaint in this case is deficient with respect to the claim for benefits. See footnote 3, supra. Neither the estate of the decedent, nor his "heirs at law", as such, is entitled to recovery. Next of kin are specifically required to be dependent. Even so, recovery may be had only if such damages as flow from the deprivation of pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries. Michigan Cent. R. Co. v. Vreeland, 1913, 227 U.S. 59, 70, 33 S. Ct. 192, 57 L. Ed. 417. And thus, in the case of a widow or husband and children, or, as here, in the case of a parent, there must exist a reasonable expectation of pecuniary benefit from the continued life of the deceased, irrespective of dependency. Gulf, C. & S. F. R. Co. v. McGinnis, 1913, 228 U.S. 173, 33 S. Ct. 426, 57 L. Ed. 785.
Moreover, the cause of action under the statute accrues only in the alternative to one of the possible classes of beneficiaries. Chicago, B. & Q. R. Co. v. Wells-Dickey Trust Co., 1927, 275 U.S. 161, 48 S. Ct. 73, 72 L. Ed. 216. Accordingly, since the decedent was survived by his father, he constituted the sole class beneficiary of the action, as the plaintiff here concedes. Any recovery, in view of the father's death, would be received on behalf of the father's estate. Van Beeck v. Sabine Towing Co., 1937, 300 U.S. 342, 57 S. Ct. 452, 81 L. Ed. 685; Dellaripa v. New York, New Haven & Hartford R. Co., 2 Cir., 1958, 257 F.2d 733.
Plainly, the complaint requires amending. But this does not merit dismissal for want of jurisdiction, for there is a fundamental distinction between dismissal for failure to state a claim upon which relief can be granted and for lack of jurisdiction.
The general rules with respect to jurisdictional amount are summarized in St. Paul Mercury Indemnity Co. v. Red Cab Company, 1938, 303 U.S. 283, 288-290, 58 S. Ct. 586, 590, 82 L. Ed. 845:
"* * * The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith . It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction . Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the ...