Beaty v. Massachusetts Protective Ass'n
| Decision Date | 05 March 1931 |
| Docket Number | 13084. |
| Parties | BEATY v. MASSACHUSETTS PROTECTIVE ASS'N. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Union County; T. S. Sease Judge.
Action by Elizabeth V. Beaty, administratrix, against the Massachusetts Protective Association. Judgment for plaintiff and defendant appeals.
Reversed and remanded with directions.
Haynsworth & Haynsworth, of Greenville, and John K. Hamblin, of Union for appellant.
Hughes & Russell, of Union, for respondent.
This action, commenced in the court of common pleas for Union county, February 12, 1929, is an action for the recovery of the sum of $3,000, together with interest thereon at the rate of 7 per cent. per annum from the 20th day of June, 1926 upon a policy of insurance issued upon the life of Robert W. Beaty, deceased, by the defendant, said policy bearing date October 30, 1925.
The plaintiff commenced an action against the defendant, in the same court, on the said policy, November 23, 1926, on the same state of facts alleged in the complaint in the present action, but in the prayer of the complaint in the first action asked for $5,000 and interest, instead of $3,000 and interest, as asked for in the present action. The amount of the insurance stipulated in the policy is $5,000. Thereafter, the said cause was duly removed by the defendant to the United States District Court for the Western District of South Carolina, and the defendant filed an answer in said cause in the said United States District Court. Subsequently, December 15, 1928, on motion of plaintiff's attorneys, the said action was nonsuited and the complaint dismissed by order of the United States District Judge. Thereafter the plaintiff filed the present suit, containing the same allegations, word for word, as contained in the complaint dismissed by the United States District Judge, except in the prayer of the present suit the plaintiff asks for $3,000 and interest, instead of $5,000 and interest. Within the time required by law, the defendant filed in the court of common pleas for Union county proper notice, petition, and bond for the removal of this cause (the last suit instituted) to the United States District Court for the Western District of South Carolina. The matter of removal was heard by his honor, Judge M. M. Mann, who issued an order refusing to grant an order of removal, "upon the ground that the prayer of the complaint being for only Three Thousand ($3,000.00) Dollars, the cause was not removable," to which the defendant duly excepted.
The record discloses that the defendant, thereafter, filed its answer in the state court, however, "reserving its rights to have said cause adjudicated by the United States District Court for the Western District of South Carolina." The case was tried before his honor, Judge T. S. Sease, and a jury, in the court of common pleas for Union county. When the case was called for trial the defendant stated that it appeared specially and made objection to the jurisdiction of the court and to the trial by said court "on ground that the case had been properly removed to the United States District Court for the Western District of South Carolina." This objection, his honor, Judge Sease, overruled and ordered the case to trial. The result of the trial was a verdict for the plaintiff against the defendant in the sum of $3,612.39, the full amount sued for, including interest. After the return of the verdict by the jury the defendant made a motion for a new trial, which motion the trial Judge refused, and from the entry of judgment on the verdict the defendant has appealed to this court, pursuant to notice duly served.
As stated by the appellant's counsel, in their argument, the exceptions allege error as follows: In refusing an order of removal to the United States District Court for the Western District of South Carolina, in the admission of certain evidence, in refusing defendant's motion for a directed verdict, and in the charge to the jury; and, in the main, we shall consider the questions presented by the appeal in the order presented by appellant's counsel.
Can a party whose claim is based upon a liquidated demand of more than $3,000, by asking judgment for a lesser sum, prevent removal of the cause to the United States District Court?
When the allegations of the complaint are considered, it is clear that the plaintiff in the case at bar in the prayer of her complaint reduced the amount due her for the purpose of preventing a removal of the cause to the United States District Court. Appellant takes the position that this should not be permitted, and cites in support of the position taken the following cases: Burke & Aitcheson v. Adoue & Lobit, 3 Tex. Civ. App. 494, 22 S.W. 824, 23 S.W. 91; Cox, Hill & Thompson v. Stanton, 58 Ga. 406; Jennings v. Stripling, 127 Ga. 778, 56 S.E. 1026, and Moore & Co. v. Thomson, 44 N.C. 221, 59 Am. Dec. 550. We are unable to agree with appellant's position, and think that the weight of authority supports the contrary view. Although under the allegations contained in the body of the complaint the plaintiff set up a cause of action upon which the plaintiff might be entitled to recover against the defendant the full amount of the policy, $5,000, together with interest thereon, in the prayer of her complaint she did not ask for that sum, but asked for the sum of $3,000, together with interest. In our opinion the plaintiff had the right to do this it matters not what her purpose was. Even it be conceded that she did it for the purpose of preventing a removal of the cause to the United States District Court the case would not be altered. But, of course, she will be bound by the judgment in the case, and could not afterwards maintain another action to recover on the policy, this action being prosecuted to a final conclusion. Just as a person would have the right to reduce the amount owing when suing on a note for the purpose of giving a court, of limited jurisdiction, jurisdiction in the case (Catawba Mills v. Hood, 42 S.C. 204, 20 S.E. 91), so has the plaintiff in this case, in our opinion, the right to reduce the amount the allegations contained in the body of her complaint, if established, would entitle her to recover by asking for a lesser amount in the prayer of the complaint. The right of removal is statutory and the conditions prescribed must be met to entitle a defendant to removal. One of the conditions to be met to entitle a defendant to have a cause removed to the United States District Court is that the amount sued for, exclusive of interest and costs, exceeds the sum of $3,000. The amount in controversy, in the kind of case involved herein, so far as the amount of verdict that could be rendered is concerned and amount of judgment obtained, is determined by the amount asked for under the prayer of the complaint, and in the case at bar the plaintiff could not recover any greater sum than the amount demanded in the prayer of the complaint. As being in point to the question before us, we quote from the syllabus of the opinion of the court in the case of Iowa Central Railway Co. v. Bacon, 236 U.S. 305, 35 S.Ct. 357, 59 L.Ed. 591, as follows: ""A state Court did not lose jurisdiction of an action for death because the Federal circuit court to which a removal was sought made several orders continuing the case from term to term after the filing of the transcript in that court, and finally dismissed the suit for want of prosecution, where, upon the face of the record, the suit was not a removable one, as the prayer for recovery was for but $1,990, which amount the state court decided was the limit of recovery, notwithstanding an allegation in the petition that the decedent's estate was damaged in the sum of $10,000." (Italics added). Under the law at this time the jurisdictional amount is $3,000.00, exclusive of interest and costs, and the prayer of the complaint in the case at bar being for $3,000.00 together with interest, the cause was not a removable one. In this connection we also call attention to the following authorities: Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, 5 Ann. Cas. 692; Jackson v. Railroad Co., 58 Miss. 648; Elgin v. Marshall, 106 U.S. 578, 1 S.Ct. 484, 27 L.Ed. 249; Ray v. Southern Ry., 77 S.C. 103, 57 S.E. 636; Smith v. Cox, 83 S.C. 1, 65 S.E. 222; Cumming v. Lawrence, 87 S.C. 457, 69 S.E. 1090; Edwards v. Johnson, 90 S.C. 90, 72 S.E. 638.
It is true, this court has repeatedly held that the plaintiff may obtain any relief appropriate to the case made by the pleadings and the evidence, without regard to the form of the prayer for relief; that is, he will be given such relief as he may be entitled to notwithstanding that the prayer for relief is defective. Especially is this true in an equity case. But this does not mean that a party instituting a suit cannot remit or waive so much of his claim as he sees fit, and such remittance or waiver amounts to an acknowledgment of payment for the amount so waived or remitted, for which an action could not afterwards be maintained. Such waiver or remittance may be set forth either in the body of the complaint or in the prayer for relief, either directly or indirectly. When the plaintiff in the prayer for relief asks for a smaller amount than that stipulated in the instrument sued on, it amounts to a waiver, and the plaintiff, as in the case at bar, cannot afterwards maintain an action for the amount so waived, but is bound thereby. In a suit on a note payable in installments, of course, the rule would not apply to installments not due at the time of the commencement of the action, but would only apply to the installments due at the time of the commencement of the action. In the case of Ray v....
To continue reading
Request your trial
-
Fountain v. Fred's, Inc.
...case made by the pleadings and the evidence, without regard to the form of the prayer for relief ...." Beaty v. Mass. Protective Ass'n , 160 S.C. 205, 207, 158 S.E. 206, 207 (1931). "Especially is this true in an equity case." Id.In this case, Fred's made the following prayer for relief in ......