The Mutual Life Insurance Company of New York as complainant institutes this action against the defendant, seeking a declaratory judgment adjudging and determining the rights and obligations of the parties with respect to the payment of disability benefits under a life insurance contract. The contract is based on the condition of a twenty-year pay; the twenty annual full premiums (date of last payment, July 26, 1942) have been paid. Since the year 1932 the insured, upon submitted proof, had been accepted as being totally and permanently disabled under the terms and provisions of the policy; disability benefits were paid to May 1, 1944, at which time, the complainant company having allegedly acquired knowledge on or about March 31, 1944, that the insured was not, and had not been, totally and pérmanently disabled, discontinued payments. Since the disability has been for over ten years, the disability benefit now to be paid under the policy terms is $100 per month.
Accordingly, the complainant entered court in the manner above described and seeks to maintain jurisdiction in that the amount in controversy, exclusive of interest and costs, exceeds the sum of $3000, on two grounds: (a) because the insured under the mortality tables has a life expectancy substantially in excess of twenty-nine mouths, and (b) that in accordance with the requirements of the law of the state of New York complainant is obligated to establish a reserve in excess of $3000 and that this reserve is actually now maintained.
The complaint was filed and the summons issued on the 30th day of June, 1944; therefore, the defendant claims that there were only two months of disability
After argument, we surmise that the complainant company, knowing full well the status of the law on jurisdiction in this type of case, based its petition on two cases in particular of the Circuit Court of Appeals for this district, to-wit: Mutual Benefit Health & Accident Association v. Fortenberry et al., 5 Cir.,
The presiding judge of this court has to repeat what he said in the case of Mitchell v. Mutual Life Insurance Company of New York, D.C.,
In the same case,
“However, the company, in its petition to remove to .the federal court, refers to the requirement of the insurance contract that a reserve of $3,000 is to be established, in the case plaintiff be declared totally and permanently' disabled. This amount is reached by a consultation of mortality tables in respect to plaintiff’s life expectancy.
“We find that such a contingent reserve is no basis to establish jurisdiction. Shabotzky v. Massachusetts Mut. Life Ins. Co., D.C.,21 F.Supp. 166 ; Wright v. Mutual Life Ins. Co., 5 Cir.,19 F.2d 117 ; Small v. New York Life Ins. Co., D.C.,18 F.Supp. 820 . There are cases holding otherwise, but we adhere to the principles of [Town of] Elgin v. Marshall, supra, so long and often followed.
“Moreover, the parties litigant in this case are not trying to vitiate the contract of insurance between them; they are merely seeking a court interpretation of one of the clauses of the contract — the one involving monthly payments because of total and permanent disability. So, the face of the policy in this case does not serve to fix jurisdiction. See Mutual Ben. Health & Accident Ass’n v. Fortenberry et al., 5 Cir.,98 F.2d 570 ; Shabotzky v. Massachusetts Mut. Life Ins. Co., D.C.,21 F.Supp. 166 ; Equitable Life Assur. Soc. of United States v. Wilson, 9 Cir.,81 F.2d 657 ; Bell v. Philadelphia Life Ins. Co., 4 Cir.,78 F.2d 322 .”
We do not rely on our own decision; we are relying on the decisions quoted, particularly the Wright case, affirmed at
The other judge of this court approved of the Mitchell case, supra, in Godfrey v. Brown Paper Mill Company, Inc., D.C.,
In addition to the above authorities, we should quote from Mutual Life Insurance Co. of New York v. Moyle, et ux., 4 Cir.,
The Ballard case was declared against in Mutual Life Insurance Co. of New York v. Moyle, supra, in the following language: “Plaintiff relies also upon Ballard v. Mutual Life Ins. Co., 5 Cir.,
The language of the Ballard case is explicit, is strong, and comes from our own circuit. [
The sentence immediately following the above, especially since it contains the word italicized by us, begins to limit the breadth of meaning of the language: “The amount in controversy is the value of his claim which the company is seeking to have cancelled in the court below, not the amounts sued for in the state courts.”'
What in our opinion takes away most from the apparent meaning of the first quotation above is the list of cases given to support it: Brotherhood of Locomotive Firemen & Enginemen v. Pinkston, supra; Mutual Ben. Health & Accident Ass’n v. Fortenberry, supra; C. E. Carnes & Co. v. Employers’ Liability Assur. Corp., Ltd., 5 Cir.,
As to the Pinkston case, and its ancestor, Thompson v. Thompson,
Judge Chesnut in the case of Edelmann v. Travelers Insurance Co., D.C.,
The Pinkston and Thompson cases are considered and analyzed in the case of Equitable Life Assurance Society v. Wilson, 9 Cir.,
“The insured also relies on Brotherhood of Locomotive Firemen and Enginemen et al. v. Pinkston,293 U.S. 96 ,55 S.Ct. 1 ,79 L.Ed. 219 . That case arose on a bill in equity brought to protect the entire contract giving to the complainant*740 a monthly pension for the remainder of her life. The protection sought was the administration of a fund of the Brotherhood which had made the contract sought to be protected, which fund it was claimed was being so administered that it would destroy the value of the entire contract. No such equitable right to protect the entire insurance policy has been urged or could be urged in this action at law. The Supreme Court draws the distinction between the two in the following language: ‘This, it will be seen, is not an action at law to recover overdue installments, but a suit in equity to preserve amd protect a, right to future participation in the fund. If the value of that right exceeds $3,000, the District Court has jurisdiction.’293 U.S. 96 , 99, 100,55 S.Ct. 1 , 2,79 L.Ed. 219 , (Italics inserted.)
“The same is true as to insured’s reliance on the case of Thompson v. Thompson,226 U.S. 551 ,33 S.Ct. 129 ,57 L.Ed. 347 , where a wife sought in the courts of the District of Columbia the enforcement of a Virginia decree ordering her husband to pay the maintenance of herself and child. In that proceeding the controversy was not simply whether the maintenance then due exceeded the, sum of $3,000. The question was whether or not a District of Columbia court gave full faith and credit to the decree of the Virginia court, thus tendering a controversy of the entire value of the decree to the complainant in the bill.”
In the Thompson case, it is said [
The Fortenberry case, supra, is the next case given in the footnote of the Ballard case. It is immediately distinguished from the instant case because in it the validity of the contract of insurance is at issue, and it is not in the instant case. The issue has been made in argument that the Ballard case would much more firmly establish itself if in it any consideration had been given of the case of Wright v. Mutual Life Ins. Co., supra.
And here is the language of the Fortenberry case [
The Wright case appears, but in the way of disapproval of the Ballard case.
Moreover, the plaintiff in the instant case is not suing to cancel the policy to protect its rights under the whole contract. Counsel for both sides have tacitly agreed that the jurisdiction is solely pitched on the question of whether or not the number of years of expectancy of life is to be a factor in arriving at the amount at issue. So the Fortenberry case weakens the Ballard case in that it restricts it and prevents it from being as full in meaning as the language used in it would permit.
The next case in the footnote is that, of C. E. Carnes & Co. v. Employers’ Liability Assurance Corp., Ltd., supra. This is not only one from our circuit but from our very district, and the language of my distinguished colleague is [
And, finally, we must look into the case of Rydstrom v. Massachusetts Acc. Co., supra. After a recital of the facts by the court in this case, the following conclusions are reached [
“In my opinion these alleged facts show that the amount in controversy here is more than $3,000 exclusive of interest and costs. Of course the amount of the accumulated and unpaid weekly benefits alleged to be due is much less than that amount, and if this were the sole controversy in the case it is clear that the suit would have to be dismissed for lack of the jurisdictional amount. Berlin v. Travelers Ins. Co., D.C.Md.,18 F.Supp. 126 ; Edelmann v. Travelers Ins. Co., D.C.Md.,21 F.Supp. 209 . But this is by no means the whole controversy in the case. * * *
“Here the real controversy is over the integrity of the policy as a whole, involving further payments of $50 a week to the insured for his life and determining his liability for the repayment of $14,295.-46. In this aspect the jurisdiction seems to be supported by Aetna Life Ins. Co. v. Haworth,300 U.S. 227 ,57 S.Ct. 461 ,81 L.Ed. 617 ,108 A.L.R. 1000 , and Stephenson v. Equitable Life Assur. Soc., 4 Cir.,92 F.2d 406 ; Bell v. Philadelphia Life Ins. Co., 4 Cir.,78 F.2d 322 , all under the Declaratory Judgment Act. It is further supported by earlier cases in the Supreme Court. Thompson v. Thompson,226 U.S. 551 ,33 S.Ct. 129 ,57 L.Ed. 347 ; Brotherhood of Locomotive Firemen v. Pinkston,293 U.S. 96 ,55 S.Ct. 1 ,79 L.Ed. 219 . Stinson v. Dousman,20 How. 461 ,15 L.Ed. 966 , as explained in New England Mortgage Security Co. v. Gay,145 U.S. 123 , 131,12 S.Ct. 815 ,36 L.Ed. 646 , is particularly in point in principle. It is clearly distinguishable from Equitable Life Assur. Soc. v. Wilson, 9 Cir.,81 F.2d 657 , 659, where there was no judgment asked as to the validity of the policy.”
So, from a review of these cases, the Ballard case, in our humble opinion, should not control our decision.
In the instant case wc are faced with a judgment sought by the plaintiff which would either affirm or deny that disability benefits under the contract are due, and in the contingency that the case after trial would be that the disability payments are due, then by computation considering the expectancy of life, the amount necessary to maintain jurisdiction is reached. In the Thompson case, the judgment declaring that the alimony was due had already been secured. The judgment that disability benefits are due in this case has not yet been secured. The two cases are one whole trial apart.
A differentiation is made by Judge Waller (then District Judge) of the Ballard case in the case of Travelers Insurance Co. v. Wechsler, D.C.,
Here is the serious point presented by the very able counsel for the plaintiff. It is difficult of refutation. He makes a great difference between the good number of cited cases, all forming a class of actions at law, where the plaintiff is the insured and, of necessity, under the contract judgment is asked for the number of months for which benefits are due — generally a sum lower than the necessary amount for the maintenance of jurisdiction, and the instant type of case where the plaintiff is the insuring company appearing in a petition for declaratory judgment. His argument is that the underlying purpose of the declaratory judgment is to allow for the determination of matters which are in controversy but not at issue. His contention is that, in order
He stresses that particularly in Louisiana where there is a penalty statute, the insuring company should be permitted to come into court in order to determine' the question vel non as to whether or not the disability benefits are due without there being a breach of the contract by the insuring company, and the jurisdiction under the Declaratory Judgment Act should be a computed or estimated one. He says that our courts have never refused jurisdiction because a definite amount was not due at the time of the suit and by reasonable contingency might never become due; he says further that in the rescission of insurance contracts courts have continuously held that the amount in dispute is the maximum amount payable under the contract in a certain contingency, quoting New York Life Insurance Company v. Swift, 5 Cir.,
All of these points are, as far as we are concerned, satisfactorily disposed of by the language cf Judge Parker in the Moyle case, supra, when he said: “The controversy which plaintiff has with insured is, of course, the same controversy which insured has with plaintiff; and, if that controversy cannot be said to involve the jurisdictional amount in a suit brought by the insured, it manifestly can involve no more in a suit brought by plaintiff. The fact that plaintiff asks a declaratory judgment does not change the situation. It is true that a declaratory judgment may be had with respect to future instalments which have not accrued, if the right to them is fixed by contract and the controversy relates to the validity of the contract, even though the amount of instalments which have accrued at the time would not furnish the jurisdictional basis of a suit for their recovery. A declaratory judgment can be had, however, only with respect to a justiciable controversy; and the justiciable controversy here, as we have seen, extends only to the accrued disability benefits, as the conditions entitling insured to such benefits may change at any time."
We believe the following quotation, from the early case on the Declaratory Judgment Act, Ætna Life Ins. Co. v. Haworth,
The federal Declaratory Judgment Act is not one which adds to the jurisdiction of the court, but is a procedural statute which provides an additional remedy for use in those cases and controversies of which the federal courts already have jurisdiction. Ætna Life Ins. Co. v. Haworth, supra.
We are not led to a conclusion in this case by the present tendency of a part of our judiciary to restrict drastically federal jurisdiction based on diversity and amount involved, on the ground that such jurisdiction as a whole should be elimi-, nated by the Congress. We are ruling on the case altogether according to what we think the cases have held.
After this opinion was completed, our attention was called by letter from counsel for plaintiff company to the case of Columbian National Life Ins. Co. v. Goldberg, 6 Cir.,
The motion to dismiss for want of jurisdiction has to be sustained, and judgment will be signed in that tenor.