La Vecchia v. CONNECTICUT MUT. LIFE INS. CO. OF HARTFORD, CONN.
| Decision Date | 18 April 1932 |
| Citation | 1 F. Supp. 588 |
| Parties | LA VECCHIA v. CONNECTICUT MUT. LIFE INS. CO. OF HARTFORD, CONN. |
| Court | U.S. District Court — Southern District of New York |
Wiess & Costa, of Monticello, N. Y., for plaintiff.
Clark & Baldwin, of New York City, for defendant.
The cause is not removable under section 28 of the Judicial Code (28 USCA § 71) unless there would have been jurisdiction if the suit had been originally brought in this court. Cochran v. Montgomery County, 199 U. S. 260, 26 S. Ct. 58, 50 L. Ed. 182, 4 Ann. Cas. 451; Enger v. Northern Finance Corporation (D. C.) 31 F.(2d) 136. The jurisdiction of the United States District Court is defined by section 24 of the Judicial Code (28 USCA § 41). Jurisdiction here is asserted by the defendant, under subdivision (1) because (a) there is diversity of citizenship of the parties, and (b) "the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000." It is conceded that the plaintiff and the defendant are citizens of different states. The question turns, therefore, on whether the sum in controversy is more than $3,000.
Paragraph 16 of the complaint alleges that the plaintiff is entitled to recover and the prayer seeks recovery of a monthly installment of $50 due February 1, 1932, and further monthly installments of $50 thereafter. Defendant says, and it may be assumed, that the life expectancy of plaintiff is such that, if payments at the rate demanded were made until plaintiff's death, the aggregate would be upward of $15,000.
Ordinarily, the amount in controversy is what is claimed in the complaint; but that is not conclusive. Where it affirmatively appears from the complaint that a portion of what is sought is not recoverable, it is the duty of the court to eliminate it from consideration in determining the issue of jurisdiction. North American Transportation & Trading Co. v. Morrison, 178 U. S. 262, 20 S. Ct. 869, 44 L. Ed. 1061; Cf. Cohn v. Cities Service Co. (C. C. A.) 45 F.(2d) 687, 689.
The total and permanent disability clause (paragraph 4 of the complaint) plainly obligates the defendant to pay installments only during continuance of the disability. In other words, the face of the complaint shows that in no event can plaintiff properly have judgment for the whole period of his life expectancy. It follows that a calculation predicated on tables of mortality is not a test of the sum for which it is permissible to render judgment. The implication is inescapable...
To continue reading
Request your trial
-
Button v. Mutual Life Ins. Co. of New York
...Life Co. v. Steele, 8 Cir., 95 F.2d 535; Mutual Life Ins. Co. of New York v. Moyle, 4 Cir., 116 F.2d 434; LaVecchia v. Connecticut Mutual Life Ins. Co., D.C., 1 F.Supp. 588; Hines v. Fidelity Mutual Life Ins. Co., D.C., 6 F.Supp. 692; Moon v. Pacific Mutual Life Ins. Co., D.C., 28 F.Supp. 1......
-
Franzen v. EI Du Pont De Nemours & Co.
...because only accrued compensation benefits in amounts less than $3,000 were demanded. Defendant's citation, La Vecchia v. Connecticut Mutual Life Ins. Co., D.C., 1 F. Supp. 588, is more analogous because there the plaintiff sought the accrued monthly installment as well as "monthly installm......
-
Kuhn v. Pacific Mut. Life Ins. Co. of California
...5 Williston on Contracts, Rev.Ed, § 330A; Restatement of the Law of Contracts, Vol. 1, § 318; LaVecchia v. Connecticut Mutual Life Insurance Co. of Hartford, Conn., D. C., 1 F.Supp. 588; Wyll v. Pacific Mutual Life Insurance Co. of California, D.C., 3 F.Supp. 483; Duke v. State Life Insuran......
-
Small v. New York Life Ins. Co.
...effect of the judgment, however certain it may be that such loss will occur.'" In the case of La Vecchia v. Connecticut Mutual Life Insurance Company of Hartford, Connecticut (D.C.) 1 F.Supp. 588, the learned District Judge Caffey "The total and permanent disability clause (paragraph 4 of t......