Sink v. Mutual Life Ins. Co. of New York, Civil Action No. 428.

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: SWYGERT
• Citation: Sink v. Mutual Life Ins. Co. of New York, 56 F.Supp. 306 (N.D. Ind. 1944)
• Decision Date: 25 July 1944
• Docket Number: Civil Action No. 428.
• Parties: SINK v. MUTUAL LIFE INS. CO. OF NEW YORK.

56 F. Supp. 306

SINK v. MUTUAL LIFE INS. CO. OF NEW YORK.

Civil Action No. 428.

District Court, N. D. Indiana, South Bend Division.

July 25, 1944.

McClure & Schenk, of Kokomo, Ind., for plaintiff.

Barrett, Barrett & McNagny, of Fort Wayne, Ind., for defendant.

SWYGERT, District Judge.

This is a suit for disability benefits contracted for in two life insurance policies issued by the defendant to plaintiff. Plaintiff in claiming such benefits alleged in his complaint that in April, 1937, he became and has remained totally and permanently disabled; further that the defendant paid the monthly benefits stipulated in the policies until June, 1941 but that since then it has refused to make further payments.

When suit was started in the state court on April 1, 1942, the amount claimed by the plaintiff was $500 on each policy. The complaint stated that each policy, being in the amount of $5000 face value, provided for disability benefits at the rate of $10 per thousand for the first five years, $15 per thousand for the second five years, and $20 per thousand during the remaining period of total disability and that there had been a failure to pay benefits for 10 months, that is from June, 1941, to and including March, 1942.

A change of venue to another county court was taken and after that the plaintiff filed what he called a supplemental complaint alleging that he had continued to be totally and permanently disabled and that there had accrued at the time of filing the supplemental pleading the total of $1850 on each policy as benefits beginning in June, 1941, and the further amount of $359.40 due on each policy representing premiums which he had paid under protest since starting suit.

The defendant filed its petition to remove to federal court. The petition was granted and now the plaintiff moves to remand.

Despite plaintiff's contention, the so-called supplemental complaint, is not amendatory in effect. The theory of an amended complaint is that it is a substitute for the original pleading, and relates to the same facts that existed when suit was commenced. This pleading, although asking for an amount which includes the original demand, is supplementary, at least in part, because it seeks to recover amounts alleged now to be due under the policies that were not due when the original complaint was filed. It thereby, as respects these amounts, supplements rather than amends the original complaint. However, whether it is viewed as amending or...