Roney v. Mutual Benefit Health and Accident Association

• Decision Date: 01 November 1957
• Docket Number: No. 11261.,11261.
• Citation: 155 F. Supp. 580
• Parties: James A. RONEY, Plaintiff, v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, a corporation, Defendant.
• Court: U.S. District Court — Western District of Missouri

155 F. Supp. 580

James A. RONEY, Plaintiff, v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, a corporation, Defendant.

No. 11261.

United States District Court W. D. Missouri, W. D.

November 1, 1957.

George V. Aylward, Kansas City, Mo., for plaintiff.

Henry G. Eager (of Blackmar, Swanson, Midgley, Jones & Eager), Kansas City, Mo., for defendant.

R. JASPER SMITH, District Judge.

On June 12, 1957, plaintiff commenced this action against the defendant in the Circuit Court of Jackson County, Missouri. Plaintiff's claim is predicated upon defendant's health and accident insurance policy No. 110-233749-51M, and seeks the total sum of $2,021.78, exclusive of interest and costs, as damages.

On August 8, 1957, defendant filed its answer and counterclaim. The counterclaim prays for cancellation of a separate hospital, medical and surgical expense policy of insurance numbered 3HO-12-93598-56M which was issued by defendant to plaintiff and under which plaintiff has filed proof of loss and demands payment in the amount of $1,471. This policy sought to be cancelled is a different one than that upon which plaintiff bases his original petition, and, so far as I can determine, was not the subject of litigation prior to the filing of defendant's counterclaim. On August 22, 1957, plaintiff filed his reply to defendant's answer and his answer to defendant's counterclaim.

Shortly thereafter, defendant removed the entire action here, alleging that plaintiff is a citizen of Missouri and defendant a citizen of Nebraska, and that the amount in controversy between the parties exceeds $3,000, exclusive of interest and costs. Defendant attempts to establish the requisite amount necessary to make the action removable by considering not only the amount of recovery sought by plaintiff in his original petition, but also the amount involved in its own counterclaim. Each amount standing alone fails to meet the jurisdictional requirement; in the aggregate, they exceed it.

On August 31, 1957, plaintiff filed a motion to remand, contending that this Court has no jurisdiction over the subject matter for the reason that the requisite jurisdictional amount is lacking.

Generally in determining whether the requisite jurisdictional amount is involved so as to authorize removal of an action to a federal court, the court considers only the amount in good faith prayed for in plaintiff's complaint at the time of the petition for removal, and does not look to any amount that may be stated in defendant's counterclaim. Barnes v. Parker, D.C., 126 F.Supp. 649; Ingram v. Sterling, D.C., 141 F.Supp. 786; Trullinger v. Rosenblum, D.C., 129 F.Supp. 12; Collins v. Faucett, D.C., 87 F.Supp. 254; Stuart v. Creel,...