Colorado Life Co. v. Steele, No. 10995.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: STONE, GARDNER, and THOMAS, Circuit
• Citation: 95 F.2d 535
• Parties: COLORADO LIFE CO. v. STEELE.
• Docket Number: No. 10995.
• Decision Date: 30 March 1938

95 F.2d 535 (1938)

COLORADO LIFE CO.
v.
STEELE.

No. 10995.

Circuit Court of Appeals, Eighth Circuit.

March 30, 1938.

95 F.2d 536

W. V. Tompkins, Charles H. Tompkins, and D. L. McRae, Jr., all of Prescott, Ark., for appellant.

W. F. Denman, of Prescott, Ark., and William J. Kirby, of Little Rock, Ark., for appellee.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

STONE, Circuit Judge.

This is an action upon the disability clauses of a life insurance contract. From a judgment against it, the insurance company appeals.

This petition does not state a cause within federal jurisdiction and should, therefore, be reversed on that ground, with directions to remand the case to the state court from which it was removed. It is the duty of this court to notice lack of federal jurisdiction, of its own motion. New York Life Ins. Co. v. Johnson, 8 Cir., 255 F. 958, 959.

The jurisdiction here is based solely upon diverse citizenship and requisite amount. Diversity of citizenship is sufficiently alleged and proven. The requisite amount is lacking. There is some confusion as to the exact amount in controversy, as stated in the petition. In one part of the petition, the amount is stated as $28,800. In another place, as $18,569.89 plus statutory penalty and allowance of statutory attorney fees. Either of these amounts would far exceed the jurisdictional necessity. Usually, the amount claimed in a petition governs as to jurisdictional amount. This is, however, not universally true. One exception to the rule is where the face of the petition shows that there could not possibly be recovery of a sum equal to the jurisdictional amount — that is, if from the nature of the case as stated in the petition there could not legally be a judgment for an amount necessary to the jurisdiction, jurisdiction cannot attach even though the damages be laid in the petition at a sum larger than the jurisdictional amount. Smithers v. Smith, 204 U.S. 632, 642, 27 S.Ct. 297, 51 L.Ed. 656; McClung v. Penny, 189 U.S. 143, 146, 23 S.Ct. 589, 47 L.Ed. 751; North American Transportation & Trading Co. v. Morrison, 178 U.S. 262, 267, 20 S.Ct. 869, 44 L.Ed. 1061; Vance v. W. A. Vandercook Co., 170 U.S. 468, 472, 18 S.Ct. 645, 42 L.Ed. 1111; Barry v. Edmunds, 116 U.S. 550, 560, 6 S.Ct. 501, 29 L.Ed. 729; Shacker v. Hartford Fire Ins. Co., 93 U.S. 241, 242, 23 L. Ed. 862; Lee v. Watson, 1 Wall. 337, 339, 17 L.Ed. 557; New York Life Ins. Co. v. Johnson, 8 Cir., 255 F. 958, 959; Hampton Stave Co. v. Gardner, 8 Cir., 154 F. 805, 806. Therefore, while the prayer here is for an amount far above the jurisdictional requirement, this court must examine whether it is legally possible for plaintiff to recover a sum equal to the jurisdictional amount upon the cause of action alleged in the petition.

The petition alleges vitality of an insurance policy on the life of plaintiff which contains two set forth disability clauses under which the highest liability of the insurer would be monthly payments of $200; that the policy contained also a clause covering hospital expenses; that there had been hospital expenses incurred by plaintiff of $500; that disability under the $200 monthly clause began September 14, 1935; that the insurer paid the monthly installments for four months and then

95 F.2d 537

refused to pay further...