Hidalgo v. Fidelity & Casualty Co. of New York

• Decision Date: 17 April 1952
• Docket Number: Civ. No. 3517.
• Citation: 104 F. Supp. 230
• Parties: HIDALGO v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: U.S. District Court — Western District of Louisiana

104 F. Supp. 230

HIDALGO v.FIDELITY & CASUALTY CO. OF NEW YORK.

Civ. No. 3517.

United States District Court W. D. Louisiana, Opelousas Division.

April 17, 1952.

Dubuisson & Dubisson, Opelousas, La., for plaintiff.

Christovich & Kearney, New Orleans, La., for defendant.

DAWKINS, Chief Judge.

Plaintiff, a citizen of Louisiana, sued in this courtFidelity and Casualty Company of New York, created under the laws of that state, for injuries alleged to have been received while a guest in an automobile belonging to L. H. Crawford, a citizen and resident of the Eastern District of Louisiana, as the insurer of the said Crawford.The complaint alleges that the accident happened in the State of Alabama.

Defendant has moved to dismiss the case, first, upon the ground that it should have been brought in the Eastern District, at the domicile of Crawford and of the Secretary of State, statutory agent for service on the defendant.Since the direct action statute of the State, LSA-R.S. 22:-655, restricts its use to the parish wherein the accident happened, defendant claims it can have no application to a case which arose in another state.

As between litigants of diverse citizenship, the federal Constitution and statutes, and not the laws of the State, control the jurisdiction and venue of the federal courts.A transitory action such as this, generally speaking, may be brought at either the domicile of the plaintiff or the defendant.SeeSection 1391,Title 28, U.S.C.;Munter v. Weil Corset Company, Inc., 261 U.S. 276, 43 S.Ct. 347, 67 L.Ed. 652.The chief difficulty confronting such a plaintiff when suing in his own district is that of obtaining valid service upon his adversary.No exception or objection to the nature of the service in this case has been made.

While the insurance policy here contains the "no action" clause, counsel for defendant concedes that it would be "negated" by a further provision to the effect that "Terms of this policy which are in conflict with the statutes of the State wherein this policy is issued are hereby amended to conform to such statutes", and if the direct action statute of this state applies, then he could not insist upon his client's being relieved from this suit on the grounds of Bish v. Employers' Liability Assurance Corporation, Ltd., D.C., 102 F.Supp. 343, andBayard v. Traders & General Insurance Company, D.C., 99 F. Supp. 343.He seems to rest solely upon the contention that since the direct action is statutory and...