Simmons v. Mutual Reserve Fund Life Ass'n

• Decision Date: 04 March 1902
• Docket Number: 1,649.
• Parties: SIMMONS v. MUTUAL RESERVE FUND LIFE ASS'N.
• Court: U.S. District Court — Northern District of Georgia

114 F. 785

SIMMONS v. MUTUAL RESERVE FUND LIFE ASS'N.

No. 1,649.

United States Circuit Court, N.D. Georgia.

March 4, 1902

Hoke Smith and H. C. Peeples, for plaintiff.

Anderson Anderson & Thomas, for defendant.

NEWMAN District Judge.

This is a motion to remand a case removed from the state court. The ground of the motion is that the necessary jurisdictional amount is not involved. The plaintiff's declaration, as it appears in the record brought from the state court, is as follows:

'The petition of Thomas J. Simmons respectfully shows: (1) The Mutual Reserve Fund Life Association, hereinafter styled the 'defendant,' is a corporation of the state of New York, now and at the times hereinafter mentioned engaged in the business of life insurance; and it had at the time it contracted with petitioner, as hereinafter stated, and has now, an agency, place of doing business and an agent in said county of Fulton. (2) Said defendant is indebted to your petitioner in the sum of two thousand ($2,000) dollars, with interest upon the sums and from the dates as shown by the following: (3) On May 13, 1890 defendant issued to your petitioner a policy of life insurance, in the sum of $5,000, upon the terms and conditions shown by a copy thereof, hereto attached as an exhibit, and made a part hereof, to which leave of reference is prayed as often as may be necessary. Your petitioner's wife is named in said policy as beneficiary thereof. (4) By said policy, defendant promised that upon payment by petitioner of certain dues and mortuary calls mentioned therein, and for so long as such payments should be made by him, said contract should be and continue of force. (5) Petitioner charges that, under said contract, defendant was and is only entitled to charge him for mortuary calls at the bimonthly rate of $20.80, which was and is its rate of bimonthly mortuary calls at the age of fifty-three (53) years,-- the age of your petitioner at the time said contract was made. (6) Defendant did charge him $20.80 for bimonthly mortuary calls from the time of issuing said policy until its call No. 96, of February, 1898. (7) Commencing with said call No. 96, and continuing to and including its call No. 104 (that is to say, for nine mortuary calls), defendant called upon petitioner, as a basis of keeping said contract of force, for the sum, bimonthly, of $33.90. (8) Thereafter defendant again increased its rate of mortuary call of and upon your petitioner, and, continuing to and including mortuary call No. 110 (that is to say, for six mortuary calls), called upon your petitioner, as a basis of keeping said contract of force, for the sum, bimonthly, of $41.40. (9) Thereafter again defendant increased its rate of mortuary call of and upon your petitioner, and, continuing to and including mortuary call No. 116 (that is to say, for six mortuary calls), called upon your petitioner, as a basis of keeping said contract of force, for the sum, bimonthly, of $45.15. Call No. 116 was made June 1, 1901. (10) Each and all of said increased calls was and is in violation of said contract, and without authority of law. (11) Petitioner has paid all entrance fees, medical examination fees, and dues required of him under said contract. (12) He has paid up all the mortuary calls made upon him by defendant up to, but not including, said call No. 116. (13) Petitioner paid said increased calls under protest, desiring to maintain the policy, if possible, without dispute or disagreement with defendant. (14) Tiring of the repeated demands made upon him in violation of his contract for such increased sums, petitioner refused to pay said call No. 116, the thereupon defendant has notified him that said policy of insurance is forfeited, null, and void. (15) Defendant has further broken and violated said contract, in that, contrary to the terms thereof, and without authority of law, it has on June 15, 1901, notified him that it called upon him for $1,365.25, payable within thirty days from said date, for the alleged purpose of providing a reserve. It has also in said notice stated that it would lend him said sum, as a lien against his

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