American Fire & Casualty Co. v. Finn
| Decision Date | 16 June 1950 |
| Docket Number | No. 13080.,13080. |
| Citation | 181 F.2d 845 |
| Parties | AMERICAN FIRE & CASUALTY CO. v. FINN. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David Bland, Houston, Texas, Austin Y. Bryan, Jr., Houston, Texas, for appellant.
Bailey P. Loftin, Houston, Texas, for appellee.
Before HOLMES, McCORD and RUSSELL, Circuit Judges.
This action was instituted by appellee, in a state court of Texas, against two fire insurance companies, each a non-resident corporation, and an individual citizen of Texas, doing business as Joe Reiss Insurance Agency. On the joint petition of the two non-resident defendants, the entire case was removed to the court below, where, after plaintiff's motion to remand had been overruled, a trial was had, and judgment rendered for the appellee against only the appellant, no formal judgment appearing to have been entered for or against the other two defendants.
After the judgment had been rendered against it in the court below, the appellant moved to vacate the same and to remand the cause to the state court on the ground that it had been improperly removed, the movant relying upon Bentley v. Halliburton Oil Well Cementing Co., 5 Cir., 174 F.2d 788. The appellant's inconsistency in causing the removal and then complaining about it, is deemed immaterial, since the alleged defect in jurisdiction is not merely modal but goes to the substantive question of federal jurisdiction. Wabash R. R. Co. v. Barbour, 6 Cir., 73 F. 513; Tillman v. Russo Asiatic Bank, 2 Cir., 51 F.2d 1023, 80 A.L.R. 1368. It is true that separable controversies as a ground of removal have been abolished, as held in the Bentley case, supra, and that appellant in its petition technically erred in alleging a separable controversy as a ground of removal. Counsel claims to have been uninformed (when his removal petition was filed on Sept. 14, 1948) as to the amendment in the removal statute that became effective Sept. 1, 1948, 28 U.S.C.A. § 1441; but, notwithstanding this error, it appears from the allegations of fact in the complaint and petition to remove that two separate and independent claims, each of which would have been removable if sued upon alone, were joined with an otherwise non-removable claim; and, therefore, the entire suit was removable. Sec. 1441(c).
All three claims are with reference to the total destruction by fire of a single house owned by appellee. She alleged that the fire occurred on May 6, 1948, while appellant's policy of insurance was in full force and effect; but in the alternative, she pleaded that if mistaken in the foregoing claim, the Indiana Lumbermens Ins. Co. was liable for said loss on another policy issued to her by it for the same amount. Then, in the event she failed to recover against either insurance company, she alleged a claim for the same loss against Joe Reiss, the resident agent of both companies, which was separate and independent of the other two claims. The difference, if any, between separable controversies under the old statute and separate and independent claims under the new one is in degree, not in kind. It is difficult to distinguish between the two concepts,1 but it is not necessary to attempt it in a case like this, which would be removable under either statute. Under both, the removal jurisdiction of...
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American Fire Casualty Co v. Finn
...and in favor of the other two defendants. The District Court denied the motion to vacate the judgment and the Court of Appeals affirmed. 181 F.2d 845. The latter court concluded there were causes of action against the foreign insurance companies 'separate and independent' from that stated a......
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Finn v. American Fire & Casualty Co.
...and RIVES, Circuit Judges. HOLMES, Circuit Judge. This is the second appearance of this case before us. Our former opinion is reported in 181 F.2d 845. The action was brought in a state court of Texas by a resident of that state to recover for a loss by fire. Two foreign insurance companies......
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Burleson v. Coastal Recreation, Inc.
...that judgment on the ground that the case had been improperly removed. The District Court denied that motion and this Circuit affirmed. 181 F.2d 845. The Supreme Court reversed, holding that since removal had been improper and because the District Court would not have had jurisdiction had t......
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Delta Engineering Corporation v. Scott
...476, 98 L.Ed. 1069, following the reversal and remand, 1951, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, of our original decision, 1950, 5 Cir., 181 F.2d 845. 6 These matters were raised for the first time by Delta in its supplemental motion filed seven days after entry of the 7 "If in so doing......