Babb v. PAUL REVERE LIFE INS. CO., WORCESTER, MASS.

• Decision Date: 30 January 1952
• Docket Number: Civ. A. No. 1215.
• Citation: 102 F. Supp. 247
• Court: U.S. District Court — District of South Carolina
• Parties: BABB v. PAUL REVERE LIFE INS. CO., WORCESTER, MASS., et al.

102 F. Supp. 247

BABB v. PAUL REVERE LIFE INS. CO., WORCESTER, MASS., et al.

Civ. A. No. 1215.

United States District Court W. D. South Carolina, Spartanburg Division.

January 30, 1952.

E. W. Johnson, Spartanburg, S. C., for plaintiff.

T. Sam Means, Jr., Spartanburg, S. C., for defendants.

WYCHE, Chief Judge.

The above case is before me upon motion of the plaintiff to remand the case to the court of common pleas for Spartanburg County, from which court it was removed here, upon a petition alleging that there was a separate and independent claim or cause of action alleged in the complaint against the non-resident removing defendant.

The defendants appear to be sued jointly, but the complaint nowhere contains the customary words of damages, joint and concurrent, fraud and deceit or conspiracy on the part of the defendants as grounds for retaining jurisdiction in the state court. However, these expressions are merely conclusions of law and whether the case is removable as embracing a separate and independent claim is dependent on the facts alleged and not on the allegations of such conclusions, which, in the absence of specific facts, would still be insufficient.

The complaint in the designated first cause of action alleges the residence of the parties and that the resident defendants at the time mentioned in the complaint were agents of the non-resident defendant insurance company, the issuance of the contract of insurance, together with the riders thereon, and then says:

"9. That while the said `Non-Cancellable Income Protector Policy' and its riders were in full force and effect, with all premiums paid, her husband became ill, was confined in a convalescent home and went regularly to a hospital in Augusta, Georgia, where, for a time, he received shock treatments; these being treatments given by electric shock applied to the temples of a patient and are given because of mental illness or disease.

"10. That because of the illness, hospitalization, treatments, doctors bills, loss of earnings and sickness, her husband became entitled to some or all of the benefits under the policy and, so she is informed, believes and alleges, on forms furnished by the company for this purpose, her husband duly filed claims for payment.

"11. That in or about the month of May 1948, so plaintiff is informed, believes and alleges, the defendant insurance company, through the individual defendants, paid to her husband, Arthur C. Babb, the sum of about $638.00, the exact amount not being known to this plaintiff, and thereafter caused and induced her husband to surrender to the company the aforesaid Policy No. 399989 in the manner hereinafter set forth.

"12. That in May 1948, at the time the payment of about $638.00 was made under this policy or its riders, her husband was visited, in their home, by the defendant company's agents, Toby Holt and C. DuBose Boylston, who, while agreeing to pay her husband a claim or claims or parts thereof under this policy, represented to her husband that the policy was issued based on the insured's application therefor and in that application he had made a false statement, in that he had represented to the company that he had not had arthritis, when in fact he had had arthritis, and this, if known to the company would have kept it from ever issuing the Income Protector Non-Cancellable Health, Accident and Hospitalization Policy referred to herein, and because of his false representation, the policy was void and would have to be surrendered; but that they would pay the six hundred odd dollars if he surrendered the policy.

"13. That the representations made by the agents of the defendant company concerning her husband's claimed misstatement in his application, about not having had arthritis, induced her husband in his mentally and physically sick condition at the time, to surrender and to deliver to them this policy of insurance, and to accept a lesser amount for disability, income and hospital benefits than was actually due him at the time. Whereas, in truth and in fact, her husband had made no misstatement about not having had arthritis.

"14. That the defendants must have known from the nature of the claims filed by her husband and from the fact that he was taking shock treatments or by the exercise of reasonable inquiry thereabouts, if not from the actual conversations with her husband, that he was physically and especially mentally a sick man, too mentally ill, confused and upset, nervous and highstrung to be able to grasp, understand and appreciate either the significance of what these agents were telling and representing to him about his policy or to know that he was doing in surrendering, and at the time delivering to them, his valuable and at that time in benefit contract of so-called `Non-Cancellable Insurance.'

"15. That the defendants having induced her husband, while he was mentally ill, to surrender his valuable rights and his mental disability having continued thereafter for a period of time during which still other payments would have matured, the plaintiff is now entitled to an accounting from the defendant company and to have the policy re-instated and to have the purported surrender by the insured declared to be null, void and of no effect."

And, in the so-called second cause of action, the complaint repeats all allegations in the first cause of action, and then says:

"3. That under the instant policy, styled `Income Protector Policy,' bearing Number 399989, in addition to the payments due her husband and which are now due to his estate, the policy provided, in substance, for the payment to the named beneficiary, the plaintiff herein, the sum of $7,500.00 in case of accidental death.

"4. That the claims for which her husband was entitled are as follows:

                "(a) Complete disability from
                     November 28, 1947 until
                     October 1, 1948, a period of
                     11 months @ $150.00 per
                     month ....................... $1,650.00
                "(b) Doctor's Bill in Augusta
                     Georgia .....................    200.00
                "(c) Hospital bill in Augusta
                     Georgia, including 8 shock
                     treatments @ $4.00 each .....    206.00
                "(d) Complete disability from
                     January 2, 1950 until March
                     7, 1951, 13 months @
                     $150.00 .....................  1,950.00
                

Totaling, in the aggregate, $4,006.00, which sum, less the payment of about $638.00, is now due her husband's estate.

"5. That the plaintiff is now entitled to have paid to her the amount of the benefits due her husband during his lifetime and to have the defendants pay to her the sum of $7,500.00 accidental death benefits, that sum being due her under said Policy Contract No. 399989; her husband having been accidentally killed on the 7th day of March, 1951, and proof of death having been furnished to the defendant company in the manner hereinabove set forth."

The prayer of the complaint is as follows: "Wherefore, the plaintiff prays, as to the First Cause of Action, that Policy Contract No. 399989 be declared in full force and effect, the purported surrender thereof by her husband be declared null and void, and she be given an accounting as to the payments made to her husband, the claims filed by him, etc., and, as to the Second Cause of Action, that she be given a judgment against the defendants for the amount of the hospital, doctors and loss of income benefits amounting to about $3,368.00, and the further sum of $7,500.00 accidental death benefits, and that she be awarded costs and granted any other just relief."

The complaint, while divided into so-called two causes of action, in my opinion, is, in fact only one cause of action. The allegations of the complaint may be considered to allege a joint cause of action against all the defendants for fraud and deceit in which all defendants participated throughout and for which all defendants are equally responsible. Although not stated in specific terms, the facts alleged show joint and concurrent participation by all of the defendants in all that was done. While the plaintiff does not use the word "damages" in her complaint or in the prayer for relief, she does allege what she suffered and the amount of the loss she suffered at the hands of the defendants by reason of the surrender and cancellation of the policy of insurance, and gives what may...