Colorado Life Co. v. Steele

Decision Date30 March 1938
Docket NumberNo. 10995.,10995.
PartiesCOLORADO LIFE CO. v. STEELE.
CourtU.S. Court of Appeals — Eighth Circuit

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 refused to pay further installments or to pay the hospital expenses; that the insurer committed a "breach of said contract" by refusing to pay further monthly installments and the hospital expense; that "by reason of the breach of said contract of insurance, plaintiff is entitled to recover of the defendant the sum of $28,800.00 based upon the life expectancy of the plaintiff." The prayer was for recovery of "$18,069.89 by reason of the breach of said contract and their failure to pay the $200.00 monthly and the further sum of $500.00, as provided for in Section 5 known as `Hospital Benefit or Graduate Nurse's Fees,' or a total sum of $18,569.89, for twelve per cent. (12%) damages as provided for by law, for a reasonable attorney's fee to be fixed by the court, and for all his costs."

It is doubtful whether this petition is intended to be for damages because of repudiation of the contract by the insurer amounting to a total breach or merely for damages covering the installments and other matters unpaid. Even if the petition be intended as the former, the petition shows neither a repudiation of the policy nor such a breach of its...

To continue reading

Request your trial
43 cases
  • Button v. Mutual Life Ins. Co. of New York, 418.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • January 9, 1943
    ...117, affirmed 276 U.S. 602, 48 S.Ct. 323, 72 L.Ed. 726; Equitable Life Assurance Society v. Wilson, 9 Cir., 81 F.2d 657; Colorado Life Co. v. Steele, 8 Cir., 95 F.2d 535; Mutual Life Ins. Co. of New York v. Moyle, 4 Cir., 116 F.2d 434; LaVecchia v. Connecticut Mutual Life Ins. Co., D.C., 1 ......
  • Cannon v. United Insurance Company of America, Civ. A. No. 72-1493.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 10, 1973
    ...v. Humble Oil Refining (CCA 10 1953), 201 F.2d 123; Wyoming Ry. Co. v. Herrington Co. (CCA 10 1947), 163 F.2d 1004; Colorado Life Co. v. Steele (CCA 8 1938), 95 F.2d 535. In Colorado Life Company v. Steele (CCA 8 1938), 95 F.2d 535, 536, the court Usually, the amount claimed in a petition g......
  • National Labor Rel. Bd. v. Atlanta Metallic Casket Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 10, 1953
    ...743; Cohn v. Cities Service Co., 2 Cir., 45 F.2d 687; Ford, Bacon & Davis v. Volentine, 5 Cir., 64 F.2d 800, 801; Colorado Life Co. v. Steele, 8 Cir., 95 F.2d 535, 537; Royalty Service Corporation v. City of Los Angeles, 9 Cir., 98 F.2d 551, 554; Thompson v. Moore, 8 Cir., 109 F.2d 372, 373......
  • In re Adoption of a Minor, 11855.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 6, 1954
    ...1263; Fleming v. Richter, 2 Cir., 1947, 159 F.2d 792; Hock v. 250 Northern Ave. Corp., 2 Cir., 1944, 142 F.2d 435; Colorado Life Co. v. Steele, 8 Cir., 1938, 95 F.2d 535; Southern Pac. Co. v. McAdoo, 9 Cir., 1936, 82 F.2d 121. Nor is the father estopped to attack the jurisdiction of the Flo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT