Dean v. Bituminous Casualty Corporation

Decision Date19 August 1947
Docket NumberCivil Action No. 2123.
Citation72 F. Supp. 801
PartiesDEAN v. BITUMINOUS CASUALTY CORPORATION.
CourtU.S. District Court — Western District of Louisiana

Booth, Lockard & Jack, of Shreveport, La., and Truett L. Scarborough, of Ruston, La., for plaintiff.

Joseph Loret, of Baton Rouge, La., amicus curiae, for plaintiff.

Theus, Grisham, Davis & Leigh, of Monroe, La., for defendant.

Edward Dubuisson, of Opelousas, La., amicus curiae, for defendant.

PORTERIE, District Judge.

Mrs. Ervin Dean sues on behalf of herself and her minor child for damages arising out of an automobile accident, which occurred in Claiborne Parish, Shreveport Division, Western District of Louisiana, on or about September 28, 1946. She alleges that the accident was the result of the sole negligence of an employee of the H. R. Hayes Lumber Company. The H. R. Hayes Lumber Company is the holder of a policy-contract from the defendant, the Bituminous Casualty Corporation, wherein the latter agrees to defend any action and pay any judgment rendered against the said Lumber Company as the result of the negligent operation by the said Lumber Company of the truck driven by an employee of the said Lumber Company, at the time of the accident.

It is further alleged (Article 22) that the Bituminous Casualty Corporation is a proper defendant by reason of Act 55 of 1930 of the Legislature of the State of Louisiana. The applicable section of Act 55 of 1930 reads as follows:

"Provided further that the injured person or his or her heirs, at their option, shall have a right of direct action against the insurer company within the terms, and limits of the policy, in the parish where the accident or injury occurred, or in the parish where the assured has his domicile, and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido."

The defendant corporation has filed a motion to dismiss as follows:

(a) "That this Court is without jurisdiction for the reason that Act 55 of the General Assembly of the State of Louisiana for the year 1930, under which Act this action is instituted, is procedural with respect to and confined to the State courts of the State of Louisiana."

(b) "That even if otherwise, the complaint fails to allege sufficient facts to justify the application of the Statute aforesaid."

(c) "That the complaint does not state a cause of action or a right of action against this defendant."

(d) "That the complaint fails to state a claim on which relief can be granted."

Article 3 of plaintiff's petition is very important and reads as follows:

"The Bituminous Casualty Corporation is a foreign insurance company, organized under the laws of the State of Illinois, domiciled at Rock Island, Illinois, with its principal office in Rock Island, Illinois, but authorized to do business and doing business in the State of Louisiana."

Obviously, there is jurisdiction as to the subject matter: Diversity of citizenship (the defendant is a resident of Illinois and the plaintiff is a resident of Louisiana), and there is the necessary amount. Jud. Code, § 24(1), 28 U.S.C.A. § 41(1). Now, as to venue, the case of Neirbo Co. et al. v. Bethlehem Shipbuilding Corporation, Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R.1437, applies. When the defendant qualified to do business and did business in the State of Louisiana, it made itself subject to suit in its line of business, anywhere in Louisiana, in both the state and federal courts in Louisiana. It waived its right to plead to the venue; it is estopped from making the present motion. This really should end this opinion; for it is enough!

Our views in the case of Williams v. James, D.C., 34 F.Supp. 61, fully overrule the motion to dismiss of the defendant corporation. To save time and labor, we make the parts of that opinion, covered by Headnotes 1 to 6, both inclusive, and by Headnotes 10 to 12, both inclusive, a part of this opinion.

The case of Williams v. James was decided in the year 1940 and was substantially quoted from by the attorneys for the plaintiff, in the briefs submitted in the case of Murphree v. Mississippi Publishing Corporation, 5 Cir., 149 F.2d 138, and also in the same case when in the Supreme Court of the United States, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185. In the latter case, the Williams v. James case is mentioned in Footnote 1. It is one of the early cases to espouse and follow the Neirbo Company v. Bethlehem Shipbuilding Corporation doctrine and also to sustain the validity of Rule 4(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Of course, the Murphree case in the Circuit Court of Appeals and in the Supreme Court of the United States, supra, and not Williams v. James, really overrule the instant motion to dismiss. We make reference to Williams v. James because it has our language.

Movant makes much of the language in Act 55 of 1930: "In the parish where the accident or injury occurred or in the parish where the assured has his domicile." The accident occurred in Claiborne Parish, in the Shreveport Division of the Western District of Louisiana, so that gives the necessary jurisdiction.

The plaintiff (the assured) has her domicile in Claiborne Parish; so, again, our jurisdiction is established. Jud.Code, § 51, 28 U.S.C.A. § 112.

But a point made by movant is that Act 55 of 1930 being purely procedural, as declared by the State courts, may not be used to establish jurisdiction in the Federal courts.

If there be a point that the Neirbo Company v. Bethlehem Shipbuilding Corporation case decided, it is that a designation by a foreign corporation, in conformity with a valid statute of a State and as a condition of doing business within it, of an agent upon whom service of process may be made, is an effective consent to be sued in the Federal courts of that state.

By the same analogy, when the State of Louisiana passed Act 55 of 1930, saying, "that the injured person or his or her heirs, at their option, shall have a right of direct action (in the state courts) against the insurer company within the terms, and limits of the policy, * * * and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido," it was the creation of that same right of action for the benefit of all residents of Louisiana of the right to sue also in the Federal courts within the State of Louisiana, under like situation and circumstances.

Most advocates do not realize that under Jud. Code § 24(1), 28 U.S.C.A. § 41 (1), a citizen of Maine may file a suit against a citizen of California in the Western District of Louisiana, provided it be of jurisdiction as to amount of $3000, and if the California citizen filed no objection (the objections he may file are personal), the Federal court would have jurisdiction. The court on its own motion could not disclaim jurisdiction. Justice Frankfurter in the Neirbo case brought our minds back to that original and basic fact.

We might refer to the Coastal Club, Inc., v. Shell Oil Company case, D.C., 45 F.Supp. 859, 860. The first paragraph in this opinion reads:

"The plaintiff is a Louisiana corporation and the defendant a Virginia corporation, and the matter in controversy exceeds the sum of $3,000.00."

Then, we quote the paragraph (45 F.Supp. at page 861) which became Headnote (1):

"We should think this action is cognizable before any district court of the United States: Judicial Code, § 24(1) 28 U.S.C.A. § 41(1). Ex parte Schollenberger, 96 U.S. 369, 378, 24 L.Ed. 853. The subject matter of this action is, therefore, properly before this court. This fact pervades in this opinion. However, `The clause (section) vesting jurisdiction should not be confounded with the clause (section) determining the particular courts in which the jurisdiction must be exercised.' Sweeney v. Carter Oil Co., 199 U.S. 252, 26 S.Ct. 55, 58, 50 L.Ed. 178."

The content of the above headnote is borrowed of course, from the Neirbo Company case, and particularly from the following...

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4 cases
  • Quinlan v. Liberty Bank and Trust Co.
    • United States
    • Louisiana Supreme Court
    • March 12, 1990
    ...783 F.2d 1296 (5th Cir.1986); Humble Oil & Refining Co. v. M/V John E. Coon, 207 F.Supp. 45 (E.D.La.1962); Dean v. Bituminous Casualty Corporation, 72 F.Supp. 801 (W.D.La.1947); Bosse v. Wolverine Ins. Co., 88 N.H. 98, 184 A. 359 (1936); Perlman v. Independence Indemnity Co. of Philadelphia......
  • Chicago & North Western Ry. Co. v. Davenport
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    • February 12, 1951
    ...the defendants in the face of their personal objection thereto. A comment, apposite to this situation, appears in Dean v. Bituminous Casualty Corp., D.C., 72 F.Supp. 801, 803, as follows: "Most advocates do not realize that * * * a citizen of Maine may file a suit against a citizen of Calif......
  • Pucheu v. National Surety Corporation
    • United States
    • U.S. District Court — Western District of Louisiana
    • October 24, 1949
    ...may be enforced; the procedure of the Federal law, Rule 14, is applied; we are in the Federal Court. See Dean v. Bituminous Casualty Corporation, 1947, D.C., 72 F.Supp. 801, affirmed in New Amsterdam Casualty Co. v. Soileau, 5 Cir., 167 F.2d In Jones v. Waterman S. S. Corporation, 3 Cir., 1......
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    • U.S. District Court — Western District of Pennsylvania
    • August 21, 1947
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