Elbert v. Lumbermen's Mut. Cas. Co.

Decision Date04 September 1952
Docket NumberCiv. A. 3548.
Citation107 F. Supp. 299
PartiesELBERT v. LUMBERMEN'S MUT. CAS. CO.
CourtU.S. District Court — Western District of Louisiana

John M. Madison, Whitfield Jack, Shreveport, La., for plaintiff.

Charles L. Mayer, Jackson, Mayer & Kennedy, Shreveport, La., for defendant.

DAWKINS, Chief Judge.

Plaintiff, a citizen of Louisiana, invoking the jurisdiction of this court solely upon the ground of diverse citizenship, sues defendant, a "corporate citizen of the State of Illinois", in tort, and for cause of action alleges:

"Petitioner shows that at all times herein mentioned the defendant had issued, and there was in full force and effect, a policy of public liability insurance issued by the defendant to S. W. Bowen, 147 Boulevard Street, Shreveport, Louisiana, by the terms of which the defendant insured and indemnified and agreed to hold harmless the said S. W. Bowen, the members of his household, including his wife, and others operating the below described automobile with his permission, as provided for in said policy, from all claims of judgments arising out of the negligent operation of one certain 1949 Chrysler Sedan automobile owned by the said S. W. Bowen, which policy is made a part hereof by reference.
"Petitioner shows that on or about February 21, 1951, petitioner was invited by Mrs. S. W. Bowen, wife of assured, to be her guest to take a ride with her in the aforesaid Chrysler automobile, Mrs. Bowen then and there operating the car with the permission of assured.
"That petitioner accepted said invitation; that said Mrs. S. W. Bowen took petitioner for a ride and after having completed the same, stopped her car across the street in front of the driveway of petitioner's home, being 234 Olive Street in the City of Shreveport, Parish of Caddo, Louisiana. Petitioner shows that the said Mrs. S. W. Bowen stopped the car to permit petitioner to alight therefrom. Accordingly, petitioner proceeded to get out of the car, stepped on the ground and proceeded to close the right front door of the car. However, before petitioner could get the door fully closed and her hand removed from the handle, the said Mrs. S. W. Bowen suddenly and without warning, started her car forward, catching petitioner's coat sleeve in the handle of the car, dragging her and throwing her violently to the ground and injuring her as hereinafter set forth.
"The accident and resulting injuries were caused proximately by the negligence of assured's wife, aforesaid, in the following non-exclusive particulars:
"a. Starting the car forward without first ascertaining that petitioner was free and clear thereof.
"b. Starting the car forward while petitioner was outside thereof but in physical contact therewith.
"c. Operating the car in a careless and reckless manner, under the circumstances.
"Petitioner itemizes her injuries as follows:
"a. The large bone of her upper right leg was broken and crushed where it fits into the hip joint socket.
"b. Injuries of undetermined nature to the bones, muscles, nerves, blood vessels, tissues and cartilage of her
"1. Upper back.
"2. Lower back.
"3. Both hips.
"4. Both legs.
"c. Aggravation and worsening of a preexisting but quiescent, dormant, non-disabling and non-painful arthritis and dislocated disc.
"d. Bruises and contusions over entire body."

Her prayer is for judgment in the total sum of $51,590.50, which includes "loss of enjoyment and use of physical functions * * * pain and suffering * * * expenses of an attendant * * * medicine, drugs and special foods * * * hospital bills * * * doctor bills * * * nursing and attendant bills accrued". There is nothing alleged to show whether the maximum coverage of the policy is more or less than the total amount claimed.

Defendant has moved to dismiss the complaint, contending there is no diversity of citizenship between the real parties to the controversy as to whose fault or negligence caused the alleged injuries and consequent damages.

The sole basis for invoking the jurisdiction of the Federal court here is the Act No. 55 of Louisiana Legislature of 1930 (now Act No. 541 of 1950, LSA-R.S. 22:655), which reads as follows:

"No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured, shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person or his or her heirs against the insurer. The injured person or his or her heirs, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy in the parish where the accident or injury occurred or in the parish where the insured has his domicile, and said action may be brought against the insurer alone or against both the insured and the insurer, jointly and in solido. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana. Nothing contained in this Section shall be construed to affect the provisions of the policy or contract if the same are not in violation of the laws of this state. It is the intent of this Section that any action brought hereunder shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this state."

As appears from the fourth article of the complaint quoted above, the policy sued upon was not one of general liability in favor of the public, or any person who might have a claim in tort against the insured growing out of the use of the automobile covered. Nor did the insurer undertake to defend any such action against its insured, but, according to the complaint, "by the terms of the policy" the defendant undertook to "indemnify and agreed to hold harmless the said" insured and all others covered by the policy "from the claims or charges arising out of the negligent operation of the automobile involved".

Opinion.

This is one of a large number of similar suits filed in this District, which has doubled the work in the Western District within the past few years, all by citizens of Louisiana alleging that the controversy is between citizens of different states. Here, as in others, the insured are citizens of Louisiana the same as the plaintiffs. All of them present the question of whether the State Legislature can, by authorizing a direct action against the insurer alone, at the option of complainant, impose jurisdiction upon the Federal courts in a controversy which primarily and fundamentally is one between its own citizens. The cause of action or controversy in all suits in tort in this state arises exclusively from the provisions of Article 2315 of the LSA-Civil Code, which is also quoted in full:

"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters, or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in those cases where their (there) is no surviving spouse or minor child or children.
"If the above right of action exists in favor of an adopted person, such right of action shall survive in case of death in favor of the children or spouse of the deceased, or either of them, and in default of these in favor of the surviving adoptive parents, or either of them, and in default of any of the above persons, then in favor of the surviving children of the adoptive parents, or either of them, and in default of these in favor of the surviving father and mother of the adopted person, or either of them, and in default of these, then in favor of the surviving brothers and sisters of the adopted person, or either of them, for the space of one year from the death.
"The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be. (As amended by Acts 1932, No. 159)". (Emphasis by the writer.)

In express terms therefore, only those whose fault causes the injury can be made to repair it. But by no stretch of the imagination can the insurer or indemnitor be said to have had any part in the tortious acts alleged in this or any other case. His undertaking is purely a matter of contract with his insured.

The jurisdiction of this court in diversity cases is conferred by the Federal Constitution and Statute. Section 2 of Article III of the Constitution provides:

"The judicial Power shall extend to * * * Controversies * * * between Citizens of different States * * *"; and Subsection (a) of Section 1332 of Title 28 U.S.C. declares:
"The district court shall have original jurisdiction of all civil actions
...

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3 cases
  • Lumbermen Mutual Casualty Company v. Elbert
    • United States
    • U.S. Supreme Court
    • December 6, 1954
    ...made a codefendant. Petitioner moved to dismiss the complaint for lack of federal jurisdiction; the district judge granted the motion. 107 F.Supp. 299, 108 F.Supp. 157. The Court of Appeals, 201 F.2d 500; 202 F.2d 744, reversed and remanded the case to the District Court for trial, one judg......
  • Elbert v. LUMBERMAN'S MUTUAL CASUALTY COMPANY
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 17, 1953
    ...Sec. 2 of Art. III, does not exist is elaborately developed in the able opinion of the district judge. Elbert v. Lumberman's Mutual Casualty Co., D.C., 107 F.Supp. 299. I would add only a few thoughts. The situation is clearly distinguishable from cases where the surety may be sued alone fo......
  • Elbert v. Lumberman's Mut. Cas. Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 17, 1953
    ...agree. The judgment is, therefore, reversed and the cause remanded for further and not inconsistent proceedings. 1 Elbert v. Lumbermen's Mutual Cas. Co., D.C., 107 F.Supp. 299. Cf. to the contrary Lewis v. Manufacturers Cas. Ins. Co., D.C., 107 F.Supp. 2 New Amsterdam Cas. Co. v. Soileau, 5......

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