Beaty v. Massachusetts Protective Ass'n

*207 The opinion of the Court was delivered by Mr. .Justice Carter. This action, commenced in the Court of Common Pleas for Union County, February 12, 1929, is an action for the recovery of the sum of $3,000.00, together with interest thereon at the rate of 7 per cent, per annum from the 20th day of June, 1926, upon a policy of insurance issued upon the life of Robert W. Beaty, deceased, by the defendant, said policy bearing date October 30, 1925. The plaintiff commenced an action against the defendant, in the same Court, on the said policy, November 23, 1926, on the same state of facts alleged in the complaint in the present action, but in the prayer of the complaint in the first action asked for $5,000.00 and interest, instead of $3,000.00 and interest, as asked for in the present action. The amount of the insurance stipulated in the policy is $5,000.00. Thereafter, the said cause was duly removed by the defendant to the United States District Court for the Western District of South Carolina, and the defendant filed an answer in said cause in the said United States District Court. Subsequently, December 15, 1928, on motion of plaintiff’s attorneys, the said action was nonsuited and the complaint dismissed by order of the. United States District Judge. Thereafter the plaintiff filed the present suit, containing the same allegations, word for word, as contained in the complaint dismissed by the United States District Judge, except in the prayer of the present suit the plaintiff asks for $3,000.00 and interest, instead of $5,000.00 and interest. Within the time required by law, the defendant filed in the Court of Common Pleas for Union County proper notice, petition, and bond for the removal of this cause (the last suit instituted), to the United States District Court for the Western District of South Carolina. The matter of removal was heard by his Honor, Judge M. M. Mann, who issued an order refusing to grant an order of removal, “upon the ground that the prayer of the complaint being for only Three Thousand ($3,000.00) Dollars, *208 the cause .was not removable,” to which the defendant duly excepted. The record discloses that the defendant, thereafter, filed its answer in the State Court, however, “reserving its rights to have said cause adjudicated by the United States District Court for the Western District of South Carolina.” The case was tried before his Honor, Judge T. S. Sease, and a jury, in the Court of Common Pleas for Union County. When the case was called for trial the defendant stated that it appeared specially and made objection to the jurisdiction of the Court and to the trial by said Court “on ground that the case had been properly removed to the United States District Court for the Western District of South Carolina.” This objection, his Honor, Judge Sease, overruled and ordered the case to trial. The result of the trial was a verdict for the plaintiff against the defendant in the sum of $3,612.39, the full amount sued for including interest. After the return of the verdict by the jury the defendant made a motion for a new trial, which motion the trial Judge refused, and from the entry of judgment on the verdict the.defendant has appealed to this Court, pursuant to notice duly served. ■ As stated by the appellant’s counsel, in their argument, the exceptions allege error as follows: In refusing an order of removal to the United States District Court for the Western District of South Carolina, in the admission of certain evidence, in refusing defendant’s motion for a directed verdict, and in the charge to the jury; and, in the main, we shall consider the questions presented by the appeal in the order presented by appellant’s counsel. Can a party whose claim is based upon a liquidated demand of more than $3,000.00,. by asking judgment for a lesser sum, prevent removal of the cause to the United States District Court? When the allegations of the complaint are considered, it is clear that the plaintiff in the case at bar in the prayer of her complaint reduced the amount due her *209 for the purpose of preventing a removal of the cause to the United States District Court. Appellant takes the position that this should not be permitted, and cites in support of the position taken the following cases: Burke & Aitcheson v. Adoue & Lobit, 3 Tex. Civ. App., 494, 22 S. W., 824, 23 S. W., 91; Cox, Hill & Thompson v. Stanton, 58 Ga., 406; Jennings v. Stripling, 127 Ga., 778, 56 S. E., 1026, and Moore & Co. v. Thomson, 44 N. C., 221, 59 Am. Dec., 550. We are unable to agree with appellant’s position, and think that the weight of authority supports the contrary view. Although under the allegations contained in the body of the complaint the plaintiff set up a cause of action upon which the plaintiff might be entitled to recover against the defendant the full amount of the policy, $5,000.00, together with interest thereon, in the prayer of her complaint she did not ask for that sum, but asked for the sum of $3,000.00, together with interest. In our opinion the plaintiff had the "right to do this, it matters not what her purpose was. Even if it be conceded that she did it for the purpose of preventing a removal of the cause to the United States District Court the case would not be altered. But, of course, she will be bound by the judgment in the case, and could not afterwards maintain another action to recover on the policy, this action being prosecuted to a final conclusion. Just as a person would have the right to reduce the amount owing when suing on a note for the purpose of giving a Court of limited jurisdiction, jurisdiction in the case (Catawba Mills v. Hood, 42 S. C., 204, 20 S. E., 91), so has the plaintiff in this case, in our opinion, the right to reduce the amount the allegations contained in the body of her complaint, if established, would entitle her to recover by asking for a lesser amount in the prayer of the complaint. The right of removal is statutory and the conditions prescribed must be met to entitle a defendant to removal. One of the conditions to be met to entitle a defendant to have a cause removed to the United States District Court is that the amount sued for, exclusive *210 of interest and costs, exceeds the sum of $3,000.00. The amount in controversy, in the kind of case involved herein, so far as the amount of verdict that could be rendered is concerned and amount of judgment obtained, is determined by the amount asked for under the prayer of the complaint, and in the case at bar the plaintiff could not recover any greater sum than the amount demanded in the prayer of the complaint. As being in point to the question before us, we quote from the syllabus of the opinion of the Court in the case of Iowa Central Railway Co. v. Bacon, 236 U. S., 305, 35 S. Ct., 357, 59 L. Ed., 591, as follows: “A State Court did not lose jurisdiction of an action for death because the Eederal Circuit Court to which a removal was sought made several orders continuing the case from term to term after the filing of the transcript in that Court, and finally dismissed the suit for want of prosecution, where, upon the face of the record, the suit was not a removable one, as the prayer for recovery was for but $1,990.00 which amount the State Court decided was the limit of recovery, notwithstanding an allegation in the petition that the decedent’s estate was damaged in the sum of $10,000.00.” (Italics added.) Under the law at this time the jurisdictional amount is $3,000.00, exclusive of interest.and costs, and the prayer of the complaint in the case at bar being for $3,000.00 together with interest, the cause was not a removable one. In this connection we also call attention to the following authorities: Kentucky v. Powers, 201 U. S., 1, 26 S. Ct., 387, 50 L. Ed., 633, 5 Ann. Cas., 692; Jackson v. Railroad Co., 58 Miss., 648; Elgin v. Marshall, 106 U. S., 578, 1 S. Ct., 484, 27 L. Ed., 249; Ray v. Southern Ry., 77 S. C., 103, 57 S. E., 636; Smith v. Cox, 83 S. C., 1, 65 S. E., 222; Cumming v. Lawrence, 87 S. C., 457, 69 S. E., 1090; Edwards v. Johnson, 90 S. C., 90, 72 S. E., 638. It is true, this Court has repeatedly held that the plaintiff may obtain any relief appropriate to the case made by the pleadings and the evidence, without regard to the form of *211 the prayer for relief; that is, he will be given such relief as he may be entitled to notwithstanding that the prayer for relief is defective. Especially is this true in, an equity case. But this does not mean that a party instituting a suit cannot remit or waive so much of his claim as he sees fit, and such remittance or waiver amounts to an acknowledgment of payment for the amount so waived or remitted, for which an action could not afterwards be maintained. Such waiver or remittance may be set forth either in the body of the complaint or in the prayer for relief, either directly or indirectly. When the plaintiff in the prayer for relief asks for a smaller amount than that stipulated in the instrument sued on, it amounts to a waiver, and the plaintiff, as in the case at bar, cannot afterwards maintain an action for the amount .so waived, but is bound thereby. In a suit on a note payable in installments, of course, the rule would not apply to installments not due at the time of the commencement of the action, but would only apply to the installments due at the time of the commencement of the action. In the case of Ray v. Southern Ry, 77 S. C., 104, 57 S. E., 636, resort was had not only to the body of the complaint to ascertain the amount involved in the controversy but to the prayer for relief also. Our attention has been called to the cases of Simpson v. McMillion, 1 Nott & McC., 192; Wells v. Reynolds, 3 Brev., 407; St. Amand v. Gerry, 2 Nott & McC., 487, and Bent’s Ex'r v. Graves, 3 McCord, 280, 15 Am. Dec., 632, which cases hold that a plaintiff cannot release a part of his claim or demand for the purpose of bringing a suit within an inferior jurisdiction. We deem it sufficient to state that, under our view, the rule declared in those cases is not now of force in this State. Brunson v. Furtick, 72 S. C., 582, 52 S. E., 424, 5 Ann. Cas., 307. In our opinion Judge Mann was right in refusing to issue an order of removal of the cause to the United States District Court, and Judge Sease properly overruled defendant’s objection to going to trial, and in proceeding with the trial *212 of the case pursued the only reasonable course before him. The exceptions on this phase of the case, 1, 2, 3, and 16 are overruled. Under Exceptions 4 and 5 error is imputed to' the trial Judge in admitting in evidence the conversations and correspondence between Walker A. Holt and D. C. Beaty (by mistake called W. C. Beaty in the exceptions). An examination of the testimony convinces us that, as to the conversation between these parties, nothing is revealed that could possibly be prejudicial against the defendant. D. C. Beaty does not claim that Holt, who was the agent of the defendant, made any statement of consequence. In fact, from what D. C. Beaty testified Holt would not discuss the matter involved at all in the conversation had with him. As to'the correspondence between D. C- Beaty and Holt, concerning which reference is made under these Exceptions 4 and 5, we are unable to discover any error committed by the trial Judge. D. C. Beaty was a relative of Robert W. Beaty and after the déath of Robert W. Beaty tried to get information concerning the insurance. We find no letter in the record from Holt to' D. C. Beaty, but only a letter from D. C. Beaty to ITolt. This letter by D. C. Beaty to Holt was intended as a reply to a letter written by Holt on the 9th of June to Robert W. Beaty, but which Robert W. Beaty did not have an opportunity to read, and, it was opened, it appears, by his widow after his death, which occurred in an automobile accident, June 14, 1926. In the letter of D. C. Beaty to ITolt, about which complaint is made, D. C. Beaty calls attention to the fact that Robert W. Beaty did not receive the letter, and explains why he did not receive it. In this letter mention is made that he (D. C. Beaty) had requested Holt to let him know about the insurance policy in question, and states that Plolt has not furnished him the information requested; and in the letter D. C. Beaty also reminds Holt that he called him over telephone and read to *213 him the letter written by Holt to Robert W. Beaty, referred to above, and made mention of the fact that Holt in the ’phone conversation told him that his stenographer had written the letter, and called Holt’s attention to the fact that the letter was signed by him (Holt). He also tells Holt that he thinks he should have given him the information requested, and inclosed a check for $36 payable to the order of Holt, covering the semiannual premium, and formally notified Holt, as the agent of the defendant, of the death of, Robert W. Beaty, the insured, and related the manner in which his death occurred and where and when it occurred, and requested that he notify the defendant and transmit this information to the defendant. He further requested Holt to send him “Claimants Proof of Accidental Death,” and requested a copy of the policy, for the reason that the original had not been located. We fail to see wherein the defendant was prejudiced by the introduction of this letter, and think that the trial Judge committed no error in permitting it to be introduced. In Exceptions 6 and 7 error is charged because the trial Judge admitted in evidence certain of the correspondence between J. G. Hughes, attorney for the plaintiff, and the Massachusetts Protective Association, defendant herein. The correspondence in question here consists of letters written by Mr. Hughes, as attorney for the plaintiff, to the defendant for the purpose of procuring claim forms for making' out claim based on the policy and replies by the officer of the defendant company refusing to send the same. It is contended by the appellant that these letters were purely argumentative, possessed no evidentiary value, and were prejudicial to the rights of the defendant. We agree with the appellant to the extent that this correspondence was in part of an argumentative nature, but we do not think it was prejudicial, and think the exceptions should be overruled. *214 With regard to the question raised as to the competency of the letter of June 9th, from Holt, the agent of the defendant, to Robert W. Beaty, the insured, which was not opened until after Beaty’s death, in our opinion it was competent for the purpose of showing or tending to show that at the time the letter was written it was not the purpose of the insurance company, acting through said agent, to enforce the forfeiture provision of the contract for failure to pay the premium at that time, and also for the purpose of showing the conduct of the insurance company, acting through its said agent, in regard to the contract in question. Defendant’s motion for a directed verdict was based upon the following grounds: “That the uncontradicted testimony shows that a premium on this policy became due on June 1st, 1926, that that premium was not paid by the deceased, and that under the terms of the contract of insurance or policy, the contract or policy terminated on June 1st, 1926; that the policy or contract expressly provides the method by which it may be reinstated or revived from time to time, that is, by the payment of the premiums then due. But the policy also expressly provides that even when so reinstated the reinstatement shall become effective as 'of the date when the premium is received by the Company, and of course, shall not cover, any accident or injuries prior thereto.” According to' the record before the Court, the policy in question was dated October 30, 1925, signed by the officers at the home office of the company, and countersigned at Spartanburg, S. C., November 10, 1925, by W. A. Holt, resident agent. The contract provided that the premium on the policy should be $18.00 per quarter, payable in advance on or before the 1st day of March, June, September, and December of each year. It contained no grace period provision. It is the contention of the appellant that a premium on the policy became due on June 1, 1926, which was not paid by the deceased, and that the policy, under its terms, terminated on that date, June 1, 1926. It *215 clearly appears from the record that W. A. Holt was the resident agent of the insurance company in question; that he received applications for insurance for the company, collected the premiums and remitted same to the company, countersigned the policies and delivered same to the applicants ; at least, the record is clear that Holt did that in this case, and so far as the record discloses, the company had no other agent in this State at the time in question. The record discloses that the insurance company mailed to the insured a notice, dated May 10, 1926, calling attention to premium being due June 1st and stating that the same should be paid to “Walker A. Holt, Box 533, Spartanburg, S. C.” Prior to sending this notice, the said Holt signing as “Walker A. Holt, Special Agent,” wrote a letter to the insured, dated April 2, 1926, in the following language: “It seems that you have forgotten about me altogether as I felt sure that you would send me the little check for only $46.67, which has been standing so long. I wish I could explain to you just what an asset you have in the M. P. A. policy you hold in our Association. The premium is so small I am sure you could drop this in the mail to me which I would appreciate more than I can explain to you at this time.” The correspondence introduced in evidence does not fully disclose just what agreement there was between Holt and the insured, but, according to the testimony of Holt, Holt personally advanced the premium money to the company for the insured up to June 1, 1926, and there is no question that the company received the same. But there is no proof that the insured or any one for him paid any amount to the insurance company on or after June 1, 1926, and, as we view the record, no one offered to pay the premium owing until after the death of the insured, which occurred in an automobile accident June 14, 1926. On June 9, 1926, Holt, as special agent of the company wrote to the insured the following letter: *216 “Spartanburg, S. C., June 9, 1926. “Mr. Robert W. Beatty, “Whitmire, S. C. “Route 2, “Dear Sir: “Please advise how you want me to pajr your further M. P. A. premiums. You will recall that I paid them semiannually for you last year. I think that I have written you several letters concerning your premium, but perhaps you have been very busy and haven’t had time to answer them. “Yours very truly, “(Sd.) W. A. Hoet, “Waeter A. Hoet, Spe. Agt., “Box 533, “Spartanburg, S. C.” This letter was not received by the insured. He was away from home at the time the letter reached there, and was called to Union, S. C., upon his return, on which latter trip he was killed, June 14, 1926. After the insured’s death this letter was found with other mail and was opened by his wife some time after his death. Under this state of facts, in our opinion, the defendant’s motion for direction of a verdict should have been granted. . It is therefore the judgment of this Court that the judgment of the Circuit Court be reversed, and the case remanded for entry of judgment for the defendant under Rule 27 of' this Court. Mr. Ci-iiee Justice Beease and Mr. Justice Stabler and Mr. Acting Associate Justice Mendee D. Smith concur in result.