New York Life Insurance Co. v. Farrell

• Decision Date: 09 October 1933
• Docket Number: 4-3128
• Citation: 63 S.W.2d 520,187 Ark. 984
• Parties: NEW YORK LIFE INSURANCE COMPANY v. FARRELL
• Court: Arkansas Supreme Court

63 S.W.2d 520

187 Ark. 984

NEW YORK LIFE INSURANCE COMPANY v. FARRELL

4-3128

Supreme Court of Arkansas

October 9, 1933

Appeal from Monroe Circuit Court; W. J. Waggoner, Judge; reversed.

Judgment reversed, and cause remanded.

Louis H. Cooke and Rose, Hemingway, Cantrell & Loughborough, for appellant.

W. W Sharp and Lee & Moore, for appellee.

OPINION

MEHAFFY, J.

In June, 1919, the New York Life Insurance Company issued to the appellee its policy No. 6,513,376 in the amount of $ 5,000 and also its policy No. 6,513,377 for the same amount, and each policy provided that, should appellee become totally and permanently disabled before reaching the age of sixty years, it would waive the payment of premiums thereafter falling due, and pay to the appellee one-tenth of the face amount of said policies annually during his lifetime. This suit is brought to recover under the total disability clause of these policies.

It was alleged in the complaint that in September, 1922, appellee became totally and permanently disabled. Suit was for the sum of $ 3,000 on each policy.

The appellant answered denying the allegations of the complaint, and pleading the following provisions of the policies as a defense: "Whenever the company receives due proof, before default in the payment of premiums, that the insured, before the anniversary of the policy on which the insured's age at nearest birthday is 60 years and subsequent to the delivery hereof, has become wholly disabled by bodily injury or disease, so that he is and will be, presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days, the permanent loss of the sight of both eyes, or the severance of both hands or of both feet, or of one entire hand and one entire foot, to be considered a total and permanent disability without prejudice to other causes of disability, then

"1. Waiver of Premium.--Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary waive payment of the premium for the ensuing insurance year, and, in any settlement of the policy, the company will not deduct the premiums so waived. The loan and surrender values provided for under sections 3 and 4 shall be calculated on the basis employed in said sections, the same as if the waived premiums had been paid as they became due.

"2. Life Income to Insured.--One year after the anniversary of the policy next succeeding the receipt of such proof, the company will pay the insured a sum equal to one-tenth of the face of the policy and a like sum on each anniversary thereafter during the life time and continued disability of the insured. Such income payments shall not reduce the sum payable in any settlement of the policy. The policy must be returned to the company for indorsement thereon of each income payment. If there be any indebtedness on the policy, the interest thereon may be deducted from each income payment."

The appellant also stated that appellee did not claim benefits under said policies, and did not make proof of his alleged disability until November, 1931.

The court, on its own motion, for the purpose of trial only, consolidated the two cases, a separate suit having been brought on each policy. After the court's order consolidating the cases, appellant filed petition and bond for removal to the federal court, which petition was overruled, and appellant excepted.

There was a trial by jury and a verdict and judgment in each case for $ 3,000. Motion for a new trial was filed and overruled, and the case is here on appeal.

Appellant's first contention is that the court erred in overruling its petition for removal to the federal court. There were two separate suits, each one for $ 3,000. The court, without the suggestion of either party, but on its own motion, for the purpose of trial only, consolidated the two cases. That meant nothing more than the taking of evidence in the two cases at the same time. There was no consolidation for any other purpose, and there was a separate verdict, and separate judgment in each case.

This question was settled against the contention of the appellant in the case of St. L. S. F. R. Co. v. Oxford, 174 Ark. 966, 298 S.W. 207. Appellant calls attention, however, to the case of Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870. That case has no application, because it was a single suit by the plaintiff against the defendant to set aside several judgments, and to restrain parties from executing the judgments. Neither judgment was for a sufficient amount to remove it to the Federal court, but the aggregate was more than $ 3,000. It was a single suit charging that each and all the judgments were obtained by false testimony and forged documents, and it was in fact a single suit involving more than $ 3,000.

Appellant also calls attention to the case of Yates v. Whyel Coal Co., 221 F. 603. In that case the court said: "The requisite jurisdictional amount is controlled, not by State legislation as defendant would have it appear, but by the federal law, and is determined by the aggregate sum for which judgment is sought, and not by the amount named in each cause of action." The plaintiff in that case had pleaded as a single cause of action the entire loss claimed to have been sustained for the several months covered by the contract. While there were several claims against the company, they were all combined in one suit, and the amount in controversy was, of course, the amount claimed in the suit.

The next case relied on by the appellant is McDaniel v Traylor, 196 U.S. 415, 25 S.Ct. 369, 49 L.Ed. 533. This was also a suit in Federal court to set aside, as fraudulently obtained, certain judgments which aggregated $ 3,000, but no one of the judgments was for that amount. Here there was a single suit, and the amount in...