Pacific Mutual Life Insurance Company v. Bierman
| Decision Date | 29 January 1934 |
| Docket Number | 4-3247 |
| Citation | 67 S.W.2d 577,188 Ark. 703 |
| Parties | PACIFIC MUTUAL LIFE INSURANCE COMPANY v. BIERMAN |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; reversed.
STATEMENT BY THE COURT.
This suit was instituted by appellee, Sam W. Bierman, against appellant, Pacific Mutual Life Insurance Company, in the Pulaski Circuit Court, seeking recovery upon a health and accident insurance policy. Appellee alleged that on July 21 1932, while the policy was in force, he suffered an illness caused by tuberculosis of the spine, which wholly and continuously disabled him, and that he was permanently disabled. The prayer of the complaint was as follows:
"Wherefore plaintiff asks judgment against the defendant in the amount of two thousand, six hundred seventy-five and no/100 ($ 2,675) dollars, together with a penalty of twelve (12%) per cent. on said amount, interest on said amount at the rate of six (6%) per cent. per annum from August 21, 1932, until paid, and a reasonable attorney's fee, and all costs herein expended."
Within the time provided for answer, appellant filed his petition and bond for removal of the cause to the Federal District Court. This petition alleged diversity of citizenship, and a suit of a civil nature, in which the district courts of the United States have original jurisdiction, and was brought for the purpose of recovering damages for an alleged anticipatory breach of contract, together with twelve per cent. penalty and "a reasonable attorney's fee."
The petition for removal was denied by the Pulaski Circuit Court and this question was preserved, and is here presented as the decisive question in the case.
Cause reversed and remanded.
Owens & Ehrman, for appellant.
Fred A. Snodgress and Sam Robinson, for appellee.
Johnson, C. J., (after stating the facts).
The paramount and controlling question here presented is the removability of this cause from the Pulaski Circuit Court to the Federal court for the Eastern District of Arkansas. It is the well-settled law that removability is tested solely by the complaint and the petition for removal. Appellee's complaint shows that he was seeking to recover from appellant $ 2,675 as damages for permanent disability. In addition to this, he sought recovery of twelve per cent. penalty upon $ 2,675. Twelve per cent. of $ 2,675 is $ 321. These two items, when added, aggregate $ 2,996. In addition to this sum, appellee sought to recover a reasonable attorney's fee.
We expressly held in Mutual Life Insurance Co. v. Marsh, 185 Ark. 332, 47 S.W.2d 585, that the twelve per cent. penalty, provided for by § 6155 of Crawford & Moses' Digest, was not an item of costs, and therefore should be added to the amount sought to be recovered in testing the sufficiency of a petition for removal. The headnote reads as follows:
"The amount in controversy in an action on an insurance policy...
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...1332, is apparent from Mutual Life Ins. Co. of New York v. Marsh, 185 Ark. 332, 47 S.W.2d 585, 586 (1932); Pacific Mut. Life Ins. Co. v. Bierman, 188 Ark. 703, 67 S.W.2d 577 (1934); and State Farm Mut. Auto. Ins. Co. v. Pennington, 215 F.Supp. 784, 786, footnote 1 (E.D.Ark.1963), aff'd 324 ......
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