Riehl v. National Mutual Insurance Company

• Decision Date: 14 February 1967
• Docket Number: 15801.,No. 15800,15800
• Citation: 374 F.2d 739
• Parties: Charles Edward RIEHL, Plaintiff-Appellee, v. NATIONAL MUTUAL INSURANCE COMPANY, Defendant-Appellant. Gertrude RIEHL, Plaintiff-Appellee, v. NATIONAL MUTUAL INSURANCE COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

374 F.2d 739 (1967)

Charles Edward RIEHL, Plaintiff-Appellee, v. NATIONAL MUTUAL INSURANCE COMPANY, Defendant-Appellant.

Gertrude RIEHL, Plaintiff-Appellee, v. NATIONAL MUTUAL INSURANCE COMPANY, Defendant-Appellant.

Nos. 15800, 15801.

United States Court of Appeals Seventh Circuit.

February 14, 1967.

Oscar C. Strom, Angelo A. Buoscio, Gary, Ind., Strom & Whitted, Gary, Ind., of counsel, for appellant.

William I. Marlatt, Gary, Ind., Richard S. Kaplan, Gary, Ind., of counsel, for appellee.

Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.

CASTLE, Circuit Judge.

In separate actions, consolidated for trial in the District Court, each of the plaintiffs-appellees, Charles Edward and Gertrude Riehl, recovered a money judgment against National Mutual Insurance Company on a complaint asserting liability of the defendant insurance company¹ to the plaintiff upon a liability insurance policy issued by the defendant company. The recovery sought and awarded in each action, which was tried to the court without a jury, was in the amount of an unsatisfied judgment, plus interest and costs thereon, which the individual plaintiff had recovered against Leo Lawson, Jr. for personal injuries sustained in a collision involving an automobile driven by Lawson and one which Charles Edward Riehl was driving and in which Gertrude Riehl, his wife, was a passenger. The defendant-appellant, National Mutual Insurance Company, prosecutes an appeal from the judgment order entered against it in each of the actions.

The complaint filed in each of the actions is identical except for the name of the individual plaintiff, the nature of the damages sustained as a result of the collision, the amount of the unsatisfied judgment and of the recovery sought, and the identifying number, etc., of the action against Lawson in which the judgment was recovered. Each of the complaints alleged, among other things, that at the time of the collision in which the plaintiff was injured the automobile driven by Lawson was the subject of a motor vehicle liability insurance policy issued by the defendant company; that the policy provided bodily injury liability coverage; that it provided that the word "insured" included any person using the automobile with the permission of the named insured, David L. Cubberly; and that at the time of the collision Lawson was using the automobile with the permission of the owner, David L. Cubberly.

The answer filed by the defendant in each of the actions is identical. Each answer contains a denial of the allegation that at the time of the collision Lawson was using the automobile with the permission of the owner, David L. Cubberly, and contains further denials that any policy such as alleged or described in the complaint was in force or effect on the date of the collision involved.

The District Court, following trial of the issues, filed a memorandum opinion containing its findings of fact and conclusions of law, and entered the judgments from which defendant appeals.

The District Court found and concluded, in substance, that on the date of the collision in which the Riehls were injured, November 11, 1961, the automobile driven by Lawson was the subject of a motor vehicle liability insurance policy originally issued by the defendant on June 29, 1960, to David L. Cubberly upon a DeSoto automobile for the period of July 15, 1960 to January 15, 1961, which policy had been transferred to the Rambler automobile subsequently acquired by Cubberly (the vehicle being driven by Lawson at the time of the collision) and kept in force and effect by the payment of renewal premiums for successive six-month periods, including the period from July 15, 1961 to January 15, 1962; that the policy provided bodily injury liability coverage and contained an omnibus clause extending such coverage to "any other person using such automobile, providing the actual use thereof is with the permission of the named insured"; that Cubberly was the owner of the automobile on November 11, 1961, and had remained so during any relevant prior period; and that at the time of the collision Lawson was using the automobile with the permission of Cubberly, the owner and named insured.

Except for the defendant's additional contention made in Appeal No. 15801, that the judgment awarded to Gertrude Riehl is void for lack of jurisdiction of the District Court over the subject matter of her action against the defendant, the issues involved and the various contentions advanced by the defendant in both appeals are the same, and they center on the question of whether the District Court's finding and conclusion that David L. Cubberly remained the owner of the Rambler automobile subsequent to July 13, 1961, and was such owner on the date of the collision, is supported by the evidence or reasonable inferences which may be drawn therefrom, and represents the application of correct legal criteria.

The issue with respect to the District Court's jurisdiction in the action involved in Appeal No. 15801, and which was first raised after the case was here on appeal, will be considered first. In this connection the record before us discloses that after Charles Edward Riehl's state court action against the defendant was removed to the District Court by the filing of a petition for removal pursuant to 28 U.S. C.A. § 1446 on grounds of diversity of citizenship, State Farm Mutual Insurance Company, at that time an additional defendant in both actions, on October 14, 1963, filed a petition for the like removal of Gertrude Riehl's state court action against the defendants. This petition clearly identifies and describes the action sought to be removed, contains all requisite allegations and recitals, and is accompanied by the required bond. But the petition did not have attached thereto, nor was there presented and filed therewith, a copy of the complaint filed in the state court action brought by Gertrude Riehl against the defendant. In this respect there is a departure from one of the directives contained in § 1446(a) which specifies the items to be filed in the district court in connection with the removal of a state court action to the district court.

The defendant contends that the District Court did not acquire jurisdiction of Gertrude Riehl's action because no complaint was filed in the District Court² and that Rule 3 of the Federal Rules of Civil Procedure³ makes the filing of a complaint a prerequisite to the commencement of a civil action in the District Court. But, in our opinion, there are factors overlooked by the defendant which make its contention wholly unpersuasive on the facts and circumstances presented by the record.

Defendant's reliance upon Rule 3 is misplaced. The action here involved was commenced by the filing of the complaint in the state court. We are not here concerned with the "commencement" of an action. We are concerned only with its "removal". The state court action was by reason of diversity and amount involved of a class with respect to which the District Court possesses original jurisdiction. It was subject to removal. Moreover, insofar as "removed" actions are concerned the Federal Rules of Civil Procedure are designed to "govern procedure after removal". Rule 81(c), Federal Rules of Civil Procedure. Thus, Rule 3 is wholly irrelevant.

The directive of § 1446(a) that "a copy of all process, pleadings and orders" served upon him in the state court action be lodged in the district court by the party removing the action is obviously intended to provide the district court with the record materials necessary to enable the court and the litigants to delineate the issues to be tried. In this connection it is to be noted that § 1446(e) which provides that "a copy of the petition" be filed with the clerk of the state court omits a like reference to the "process, pleadings and orders" etc. We think the omission deliberate. No purpose would be served by the filing of copies in the state court. The process, pleadings and orders in the cause are already there. And by express provision it is the compliance with § 1446(e) "which shall effect the removal".

The omitted complaint is...