Harley v. Home Ins. Co.

• Citation: 125 F. 792
• Parties: HARLEY et al. v. HOME INS. CO. et al.
• Decision Date: 04 November 1903
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

125 F. 792

HARLEY et al. v. HOME INS. CO. et al.

United States Circuit Court, D. South Carolina.

November 4, 1903

S. McG. Simpkins, for plaintiffs.

Spalding & Little and Smythe, Lee & Frost for defendants.

SIMONTON Circuit Judge.

This is a motion to remand a cause. The action was brought in the court of common pleas of Edgefield county, S.C., by Robert L Harley, administrator of Emma Hulda Harley, and guardian of the minor children of his decedent, against the Home Insurance Company, a corporation of the state of New York and Mrs. Mary E. Jennings, in her own right and as executrix of Joseph H. Jennings, deceased. The plaintiffs and the defendants Mrs. Jennings are citizens and residents of South Carolina. The Home Insurance Company in due time filed its petition, which bond, in the state court, praying removal upon the ground of separable controversy. The prayer of the petition was refused. Notwithstanding this, the petitioner filed in this court a certified copy of the record, and now the plaintiffs enter their motion to remand.

We can only examine the allegations of the complaint. The rule governing cases for removal on the ground of separable controversy, and for discussing whether or not such controversy exists, has been laid down in many cases in the Supreme Court of the United States, from Hyde v Rubel, 104 U.S. 409, 25 L.Ed. 823, to Torrence v. Shedd, 144 U.S. 530, 12 Sup.Ct. 726, 36 L.Ed. 528.

The case of Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514, had laid down the doctrine that, when two causes of action are joined in one suit, there can be a removal of the whole suit on the petition of one or more of the plaintiffs or defendants interested in the controversy, which, had it been sued alone, would have been removable. Commenting on this case, and analyzing it, Waite, C.J., in Hyde v. Ruble, 104 U.S.,at page 409, 26 L.Ed. 823, says:

'Two separate and distinct controversies were directly involved in this cause. * * * One was a controversy about the land, and the other about the money. Separate suits, each distinct in itself, might have been properly brought on these two separate causes of action, and complete relief afforded in each suit as to the particular controversy involved.'

Or as stated in Torrence v. Shedd, supra:

'The whole subject-matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit.'

The complaint in this case sets out these facts: The Home Insurance Company had issued a policy to Mrs. Mary E. Jennings in her own name-- a policy of fire insurance, insuring certain real and personal property. This property was derived by her under the will of her husband, Joseph H. Jennings, deceased. She held under this will the land on which was a dwelling house, covered by the policy, for her use during her widowhood; remainder to Emma Hulda Harley, the decedent of Robert L. Harley, administrator; remainder to the minor plaintiffs, the children of Mrs. Harley. The personalty covered by insurance was held by her under this will for her widowhood, with remainder to Emma Hulda Harley absolutely. The property was insured as follows: To an amount not exceeding $1,875 on the dwelling house, and $1,000 on the personalty; the company, in case of loss or damage by fire, to be liable for three-fourths of the actual cash value thereof. The property insured was destroyed by fire. A settlement made between Mrs. Jennings and the insurance company put the loss at $1,500. The complaint charges that, in effecting this insurance, Mrs. Jennings acted as trustee for herself and the remaindermen; that, when the risk insured against had been incurred, the proceeds of the policy became impressed with a trust; that the full sum of $2,875 should be paid to Mrs. Jennings; that on its receipt this sum should be or have been reinvested by her, and held subject to the limitations and provisions declared in the will with regard to the property insured. Proceeding upon this ground, the plaintiffs ignored the settlement between the insurance company and Mrs. Jennings, and demanded judgment as follows:

'(1) Against the defendants for the sum of two thousand eight hundred and seventy-five dollars, with interest thereon from the 14th day of August, 1902, at

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