#### EDWARD DALTON SMITH v. NEW YORK LIFE INSURANCE COMPANY.

(Filed 1 November, 1933.)

Removal of Causes D a — Value of property of which defendant would he deprived by judgment demanded determines amount involved.

In this action'on a policy of life insurance plaintiff claimed disability entitling him to waiver of subsequent premiums and the payment of disability benefits for his lifetime during continuance of the disability, and that upon his death defendant would be liable for $5,000, the face amount of the policy, and prayed judgment for $300 accrued disability benefits and accrued interest and that defendant be required to pay plaintiff $50.00 per month during continuance of the disability. Defendant filed a petition for removal of the cause to the Federal Court. Held, the suit did not involve $3,000, the required jurisdictional amount, and the petition should have been denied, the test being the value of the property of which defendant would be deprived by the judgment demanded.

Civil aotioki, before Grady, J., at April Term, 1933, of Pitt.

The plaintiff instituted this action against the defendant, alleging that on 9 October, 1926, the defendant issued a life insurance policy in tbe sum of $5,000 upon the life of plaintiff. The beneficiary named in the policy was the mother of plaintiff, and the annual premium was $168.00. It was further alleged “that under said policy and contract of insurance there was a provision known therein as total and permanent disability, which provides that upon the insured becoming disabled by injury or disease that wholly prevents him from performing any work or engaging in any business for remuneration or profit, occurring after the said insurance policy took effect and before the anniversary of the *349policy . . . , and upon receipt at tbe borne office, before any default of payment in premium, of tbe proof of insured’s total disability and tbat be would be continuously so totally disabled for life or tbat be bas stated tbat be is and for a period of three consecutive months has been totally disabled as above defined be shall be entitled to tbe benefits of a waiver of premium and $10.00 per month for each $1,000 set forth on the face of and in said policy for each completed month from tbe commencement of and during tbe entire period of tbe continuous total disability of tbe plaintiff.” Tbe plaintiff further alleged tbat be bad suffered a total and permanent disability and furnished proof thereof, and tbat in accordance with tbe terms of tbe policy “be was entitled to have tbe said provision of said policy put in full force and effect for tbe month 'of September, 1932, entitling plaintiff to $50.00 per month from the said 1 September, 1932, continuously each month thereafter, and at tbe time of instituting this action tbe plaintiff is entitled to $300.00 and such interest as accrued thereunder and entitled to have a waiver of tbe premium due in October, 1932, and continuously thereon during and for tbe remainder of plaintiff’s permanent disability or life, and upon bis death a complete payment of said policy to said beneficiary named therein or as provided by law.”

Upon such allegations tbe plaintiff prayed tbat be recover tbe amount of installments due at tbe time of instituting tbe action, and tbat tbe. defendant be required to pay tbe sum of $50.00 per month during and continuing bis permanent disability. Tbe defendant in apt time duly filed a petition for removal upon tbe ground of diverse citizenship, and tbat more than $3,000 was involved in tbe litigation, exclusive of interest and cost. Tbe clerk of tbe Superior Court ordered tbe cause removed to tbe Federal Court and such order was approved by tbe trial judge, and tbe plaintiff appealed.

S. J. Everett for plaintiff.

Albion Dunn for defendant.

JBeogdeN, J.

Tbe question for decision is whether tbe cause was removable upon tbe allegations contained in tbe complaint, upon tbe ground tbat tbe suit involved more than $3,000, thus ousting tbe jurisdiction of tbe State court.

There are three decisions of this Court bearing upon tbe subject involved, to wit: Harrison v. Allen, 152 N. C., 720, 68 S. E., 207; Fields v. Ins. Co., 199 N. C., 454, 154 S. E., 738; Smith v. Travelers Protective Association, 200 N. C., 740, 158 S. E., 402. Tbe Fields case, supra, is directly in point and decisive of tbe controversy. Tbe Court said: “In cases involving removal to tbe Federal Court on tbe ground tbat more *350than $3,000 is involved, tbe test is tbe value of tbe property of wbicb tbe defendant may be deprived by tbe judgment demanded, rather than tbe amount of tbe claim of plaintiff alone, where, of course, such claim upon its face does not exceed tbe jurisdictional limitations.” Tbe North Carolina cases are supported in principle by Wright v. Ins. Co., 19 Fed. (2d), p. 117; New York Life Ins. Co. v. Swift, 38 Fed. (2d), 175; Woods v. Mass. Protective Association, 34 Fed. (2d), 501; Beaty v. Mass. Protective Association, 158 S. E., 206.

Tbe defendant relies upon tbe Swift case, sufra. It is to be noted, however, that in tbe Swift case tbe suit was brought to cancel two policies of $5,000 each, and hence is distinguishable from tbe case at bar.

Reversed.