Grandey v. Pacific Indemnity Company

• Decision Date: 24 November 1954
• Docket Number: No. 15062.,15062.
• Citation: 217 F.2d 27
• Parties: C. S. GRANDEY, Appellant, v. PACIFIC INDEMNITY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

217 F.2d 27 (1954)

C. S. GRANDEY, Appellant, v. PACIFIC INDEMNITY COMPANY, Appellee.

No. 15062.

United States Court of Appeals Fifth Circuit.

November 24, 1954.

John B. Wilson, Jr., Dallas, Tex., Dixie & Ryan, Houston, Tex., for appellant.

L. W. Anderson, Dallas, Tex., for appellee.

Before BORAH, RIVES and TUTTLE, Circuit Judges.

RIVES, Circuit Judge.

On December 8, 1953, the Industrial Accident Board of Texas entered its order denying appellant's claim to workmen's compensation. The order of denial showed his employer to be "Temco Aircraft Corporation" and its insurance carrier, "Pacific Indemnity Company, 315 Mercantile Commerce Bldg., Dallas, Texas." Pursuant to Section 5 of Article 8307 of the Revised Civil Statutes of Texas,¹ appellant on December 21, 1953 filed notice with the Board that he would not abide by said ruling and decision, and on January 8, 1954, filed his complaint in the district court. That complaint incorrectly named the defendant as Pacific Indemnity Insurance Company and incorrectly described it as incorporated in the State of Massachusetts. On January 20th, Pacific Indemnity Company, a California corporation, appearing as amicus curiae, filed a motion to quash service on it taking the position that it was not the defendant in the action. Thereupon, on January 22nd, appellant filed an amendment to its complaint correctly designating the defendant as Pacific Indemnity Company, a California corporation, and a motion to amend the summons. On January 25th, the motion of the amicus curiae to quash service on it of the original summons was sustained, and the plaintiff's motion to amend the summons was overruled. Summons on the amended complaint, however, had already been served on Pacific Indemnity Company, a California corporation, and the Marshal made his return to that effect on January 26th. On February 9th, Pacific Indemnity Company filed its motion to strike the amendment, and to dismiss the cause for lack of jurisdiction, alleging in part,

"since plaintiff\'s notice of intention to appeal was filed on December 21, 1953, and his suit against Pacific Indemnity Company, a California corporation, was filed on January 22, 1954, a period in excess of twenty (20) days had expired between said dates and pursuant to Article 8307, Section 5 of the Revised Civil Statutes of the State of Texas, this Court does not have jurisdiction to hear this cause, as an appeal must be perfected within twenty (20) days from the date that the notice of intention to appeal was filed".

Those motions were sustained by the district court and the action dismissed on March 1, 1954.² This appeal followed.

Whether any such corporation exists as Pacific Indemnity Insurance Company, a Massachusetts corporation, does not appear from the record, but we would think that from the geographical designations that is most unlikely. The plaintiff's original complaint further described the defendant as the company insuring plaintiff's employer under the terms of the Texas Workmen's Compensation Act, and attached to and made a part of the complaint as Exhibit A was a copy of the award of the Industrial Accident Board showing the name of this insurance carrier to be Pacific Indemnity Company. It is not denied that Pacific Indemnity Company was in fact such insurance carrier. It had, in fact, defended the claim before the Industrial Accident Board. Still further the original complaint alleged: "Service of process may be had upon V. T. Bartley, an agent of Defendant, 315 Mercantile Commerce Bldg., Dallas, Texas." This was the name and address of an agent of Pacific Indemnity Company. The record thus plainly shows that Pacific Indemnity Company was the defendant intended to be named and served in this action. The mistake in name did not mislead or cause any prejudice to the Pacific Indemnity Company.

In the case of Davis v. L. L. Cohen & Co., 268 U.S. 638, 45 S.Ct. 633, 69 L.Ed. 1129, relied on by the district court, the suit was filed in a Massachusetts State Court against the New York, New Haven & Hartford Railroad Co., described as a corporation "operated and controlled by the United States Railroad Administration". The Railroad Company itself appeared and filed an answer. No further proceedings were had for more than two and a half years, when on the ex parte motion of the plaintiff the writ and declaration were amended by striking out the name of the Railroad Company and substituting the name of James C. Davis, Agent, and the Director General of Railroads, as the party defendant. As a matter of pleading, this amendment was permissible under the liberal...