National Farmers Union Property & Cas. Co. v. Fisher, No. 16427.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSANBORN, WOODROUGH and MATTHES, Circuit
Citation284 F.2d 421
Decision Date08 December 1960
Docket NumberNo. 16427.
PartiesNATIONAL FARMERS UNION PROPERTY & CASUALTY CO., Appellant, v. Leo FISHER, Appellee.

284 F.2d 421 (1960)

NATIONAL FARMERS UNION PROPERTY & CASUALTY CO., Appellant,
v.
Leo FISHER, Appellee.

No. 16427.

United States Court of Appeals Eighth Circuit.

December 8, 1960.


284 F.2d 422

Ira C. Peterson, Jr., Minneapolis, Minn., Robert J. Healy, Minneapolis, Minn., on the brief, for appellant.

Miles B. Zimmerman, Mankato, Minn., Robert J. Sheran, Mankato, Minn., on the brief, for appellee.

Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment for the defendant, Leo Fisher (appellee), in an action brought against him by the National Farmers Union Property & Casualty Co., of Utah, (hereafter referred to as "National") upon the claim that it was entitled to contribution from him for one-half of $20,250 which it had paid to Robert J. Murray in settlement of a personal injury action brought by Murray against John Koppi and Robert Ackerman, growing out of an automobile collision in which both Ackerman and Fisher were involved. Jurisdiction was based upon diversity of citizenship and amount in controversy. It was tried to the court with a jury, which returned a verdict upon which judgment for the defendant was entered.

The complaint alleged diversity of residence, rather than diversity of

284 F.2d 423
citizenship. The record as a whole is convincing that diversity of citizenship did in fact exist. We feel justified in treating the complaint as having been amended to conform to the proof in that regard. We shall appreciate it if the trial judges will carefully scrutinize, and have corrected if necessary, those allegations of the pleadings which are essential to establish federal diversity jurisdiction in cases such as this. See Texaco-Cities Service Pipe Line Co. v. Aetna Casualty & Surety Co., 8 Cir., 283 F.2d 144

The facts in this case are not in dispute. National was the automobile liability insurer of John Koppi and anyone driving his car with his consent. On May 29, 1954, the Koppi car, while being driven by Robert Ackerman with Koppi's consent, collided head-on with a car driven by Leo Fisher on a public highway in Murray County, Minnesota. The occupants of both cars were injured. Two passengers in the Koppi car, Carter and Barrie, each brought an action in the State District Court for Murray County against both Fisher and Ackerman (and Koppi) to recover damages for personal injuries resulting from the collision. Fisher, in the State court actions cross-claimed for his injuries against Ackerman, and Ackerman cross-claimed for his injuries against Fisher. Each asserted that the other's negligence was the cause of the collision. The State court actions were consolidated for trial, and tried to a jury on April 11-13, 1956. The jury determined that both Ackerman and Fisher were negligent, that the collision was the result of their concurrent negligence, that neither was entitled to recover damages from the other, and that they were jointly and severally liable to Carter and Barrie for damages. Judgment was entered on the verdict or verdicts.

In its complaint in the instant case, filed March 26, 1959, National alleged that subsequent to the collision, Robert J. Murray, who was a passenger in the Fisher car, brought an action in the federal District Court against John Koppi and Robert Ackerman to recover damages for the personal injuries Murray sustained in the collision; that National on June 8, 1955, on behalf of its insured, Koppi and Ackerman, paid Murray $20,250 in settlement of his action, and thereby became subrogated to the rights of Koppi and Ackerman against Fisher for contribution; that the negligence of Fisher in the operation of his car contributed to Murray's injuries; and that in an action brought in State court against both Ackerman and Fisher by Wayne Carter, a passenger in the Koppi car, for injuries sustained by him in the collision, Ackerman and Fisher each had cross-claimed against the other for their respective injuries (paragraph VIII of the complaint). The complaint contained the following paragraph numbered IX:

"That said action by Wayne Carter against Robert Ackerman and Leo Fisher was tried to a jury at Slayton, Minnesota April 11, 12 and 13, 1956 and resulted in verdicts in favor of Wayne Carter against defendants Ackerman and Fisher, and findings by the jury in answer
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30 practice notes
  • State Highway Commission of Missouri v. Volpe, No. 72-1512.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 2, 1973
    ...fact and proceed to review the district court's judgment on the merits. See also National Farmers Union Property & Casualty Co. v. Fisher, 284 F.2d 421, 423 (8 Cir. 1960) ; Parker 479 F.2d 1106 v. Gordon, 178 F.2d 888, 890 n. 2 (1 Cir. 1949). JUSTICIABILITY In view of our finding as to moot......
  • Yarbrough v. Blake, No. 1677.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • January 8, 1963
    ...Line Co. et al. v. Aetna Casualty & Surety Co., supra, and in National Farmers Union Property & Casualty Co. v. Fisher (8th Cir., 1960), 284 F.2d 421. The court did not acquire jurisdiction of the instant case upon the filing of the petition for removal and the accompanying record, and sinc......
  • Dranow v. United States, No. 16894
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 5, 1962
    ...Company v. International Harvester Co., 120 F.2d 82, 139 A.L.R. 1 (3 Cir. 1941); National Farmers Union Property & Casualty Co. v. Fisher, 284 F.2d 421 (8 Cir. 1960); and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). For reasons that will hereinafter appear, we......
  • Nuevos Destinos, LLC v. Peck, No. 20-1748
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 9, 2021
    ...diversity of residence rather than diversity of citizenship under 28 U.S.C. § 1332 ); Nat'l Farmers Union Prop. & Cas. Co. v. Fisher, 284 F.2d 421, 422–23 (8th Cir. 1960) (same). Rather, Appellants seek to amend entirely the jurisdictional 999 F.3d 647 basis for their remaining state law cl......
  • Request a trial to view additional results
30 cases
  • State Highway Commission of Missouri v. Volpe, No. 72-1512.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 2, 1973
    ...fact and proceed to review the district court's judgment on the merits. See also National Farmers Union Property & Casualty Co. v. Fisher, 284 F.2d 421, 423 (8 Cir. 1960) ; Parker 479 F.2d 1106 v. Gordon, 178 F.2d 888, 890 n. 2 (1 Cir. 1949). JUSTICIABILITY In view of our finding as to moot......
  • Yarbrough v. Blake, No. 1677.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • January 8, 1963
    ...Line Co. et al. v. Aetna Casualty & Surety Co., supra, and in National Farmers Union Property & Casualty Co. v. Fisher (8th Cir., 1960), 284 F.2d 421. The court did not acquire jurisdiction of the instant case upon the filing of the petition for removal and the accompanying record, and sinc......
  • Dranow v. United States, No. 16894
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 5, 1962
    ...Company v. International Harvester Co., 120 F.2d 82, 139 A.L.R. 1 (3 Cir. 1941); National Farmers Union Property & Casualty Co. v. Fisher, 284 F.2d 421 (8 Cir. 1960); and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). For reasons that will hereinafter appear, we......
  • Nuevos Destinos, LLC v. Peck, No. 20-1748
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 9, 2021
    ...diversity of residence rather than diversity of citizenship under 28 U.S.C. § 1332 ); Nat'l Farmers Union Prop. & Cas. Co. v. Fisher, 284 F.2d 421, 422–23 (8th Cir. 1960) (same). Rather, Appellants seek to amend entirely the jurisdictional 999 F.3d 647 basis for their remaining state law cl......
  • Request a trial to view additional results

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