American United Life Ins. Co. v. Franklin
| Decision Date | 27 May 1938 |
| Docket Number | No. 11065.,11065. |
| Citation | 97 F.2d 76 |
| Parties | AMERICAN UNITED LIFE INS. CO. OF INDIANAPOLIS, IND., v. FRANKLIN. |
| Court | U.S. Court of Appeals — Eighth Circuit |
C. E. Daggett, of Marianna, Ark. (J. B. Daggett, of Marianna, Ark., on the brief), for appellant.
W. G. Dinning, of Helena, Ark., for appellee.
Before STONE, WOODROUGH, and BOOTH, Circuit Judges.
This is an action upon a life insurance policy for $5,000.00. From an adverse judgment for $4,066.86 on the policy (the face of the policy less a loan) and $488.02 for statutory damages and $300.00 for attorney fee (Crawford and Moses Digest of Arkansas, Section 6155), the insurance company appeals.
This action was filed in the State court and removed by the insurance company. The parties present the appeal on the merits of the controversy without any question of the jurisdiction of trial court as a federal court. This attitude of the parties does not affect the duty of this Court, of its own motion, to notice and determine federal jurisdiction. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 182, 184, 189, 56 S.Ct. 780, 782, 785, 80 L.Ed. 1135; Cameron v. Hodges, 127 U.S. 322, 325, 8 S.Ct. 1154, 32 L. Ed. 132; Colorado Life Co. v. Steele, 8 Cir., 95 F.2d 535, March 30, 1938; Miller v. First Service Corporation, 8 Cir., 84 F.2d 680, 683, 109 A.L.R. 1179; Wabash Ry. Co. v. Lindley, 8 Cir., 29 F.2d 829, 831. Section 80, Title 28 U.S.C.A., provides that "If in any suit * * * removed from a State court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been * * removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court, * * * the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just."
The action as filed was properly removable on the allegations of diversity of citizenship and jurisdictional amount (the face of the policy, $5,000.00 less a loan of $1,049.12 and plus statutory damages of 12½ per centum and attorney fees). But section 80 is designed to cover situations where the subsequent progress of the case shows a lack of federal jurisdiction. This lack appeared here in the answer and the evidence. Therein, the amount of the policy and of the loan were admitted. The defense was that the reinstatement of the policy was void and, therefore, the face of the policy was not due but that the indebtedness was "for only such amount of extended insurance" as was due under the non-forfeitable clauses of the policy. The evidence made definite the amount defendant deemed due. It showed, also, that this amount ($2,500.00) had been tendered plaintiff before suit. The rate of penalty is fixed by the statute at 12½ per centum and is so pleaded in the petition. The ascertainment of such amount is a matter of calculating that percentage upon $3,950.88 (the face of the policy less the loan). The attorney fee is required by the statute to be "reasonable" and the court has here determined such fee at $300.00 without attack by either party as to amount. Thus as revealed by the pleadings and the evidence, the amount in dispute is the difference between (1) the face of the policy ($5,000.00) minus the loan ($1,049.12) plus 12½ per centum statutory penalty and plus a reasonable attorney fee and (2) the $2,500.00 conceded by defendant to be due.1 This net difference of $2,244.74 represents the amount actually in controversy.
Since it is our duty, under the above section 80, to scan the entire record to be sure federal jurisdiction exists and since an investigation of this record convinces that such jurisdiction is lacking because the "dispute or controversy" here involves less than the requisite amount, we have no...
To continue reading
Request your trial
-
Moline Machinery, Ltd. v. Pollsbury Co.
...assessed against the removing party. See, In re Iowa Manufacturing Co., 747 F.2d 462, 463 n. 2 (8th Cir.1984); American United Life Ins. Co. v. Franklin, 97 F.2d 76 (8th Cir.1938). Under Title 28 U.S.C. § 1447(c), "[a]n order remanding the case may require payment of just costs and any actu......
-
Shapiro Bros. Factors Corp. v. Automobile Ins. Co., Civil Action No. 1427.
...Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; Zicos v. Dickmann et al., 8 Cir., 98 F.2d 347; American United Life Ins. Co. v. Franklin, 8 Cir., 97 F.2d 76, and other cases herein The third and fifth counts are remanded to the New Jersey Supreme Court. 1 A person for whose ben......
-
Peacock & Peacock, Inc. v. Stuyvesant Insurance Company
...(8 Cir. 1937), cert. denied 302 U.S. 703, 58 S.Ct. 23, 82 L.Ed. 543, and American United Life Ins. Co. of Indianapolis, Ind. v. Franklin, 97 F.2d 76, 77 (8 Cir. 1938). And Missouri State Life Ins. Co. v. Jones, 290 U.S. 199, 54 S.Ct. 133, 78 L. Ed. 267 (1933), an Arkansas case, is flatly to......
-
Zicos v. Dickmann
...(McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 182, 56 S.Ct. 780, 782, 80 L.Ed. 1135; American United Life Ins. Co. v. Franklin, 8 Cir., 97 F.2d 76), and it is incumbent upon one who seeks the exercise of jurisdiction in his favor to allege in his pleading the facts essenti......