Williams v. James

• Decision Date: 26 July 1940
• Docket Number: No. 212.,212.
• Citation: 34 F. Supp. 61
• Parties: WILLIAMS et al. v. JAMES et al.
• Court: U.S. District Court — Western District of Louisiana

34 F. Supp. 61

WILLIAMS et al. v. JAMES et al.

No. 212.

District Court, W. D. Louisiana, Opelousas Division.

July 26, 1940.

COPYRIGHT MATERIAL OMITTED

James Domengeaux, of Lafayette, La., for plaintiffs.

Davidson & Davidson, of Lafayette, La., for defendants.

PORTERIE, District Judge.

The plaintiffs, five in number, domiciled in this district, sue in damages for injuries suffered by them when the automobile in which they were riding, and which was being operated over a state highway located in this district, collided with the truck of the defendant, Roy C. James, a resident of the city of Houston, Harris County, Texas.

The Highway Insurance Underwriters is joined as defendant in the suit by the following language of the petition (Article VIII): "That on the date aforesaid, that is, on December 18th, 1938, your defendant, Highway Insurance Underwriters, was the insurer of the defendant, Roy C. James, operating under the trade style of James Truck Line, for all awards of damage, not exceeding a stipulated amount contained in said policy which might be awarded against the said Roy C. James and/or James Truck Line by any competent Court growing out of personal injury or property damage caused by the said Roy C. James and/or James Truck Line and/or his employee, in the operation of the said James Truck Line while driving said truck; that, therefore, defendant, Highway Insurance Underwriters, is bound in solido with the defendant, Roy C. James and/or James Truck Line for such sums herein claimed or such awards as may be made by this Honorable Court in favor of petitioners in accordance with the provisions of said contract of insurance and/or indemnity as above recited and in accordance with existing law."

One of the allegations of the petition (Article IX) is that "The Highway Insurance Underwriters is a foreign corporation doing business in the State of Louisiana, having complied with existing laws applicable to such corporations and is, therefore, subject to the jurisdiction of this Court by citation upon the Secretary of State of the state of Louisiana, its duly appointed agent by law for service of process."

An amount of more than $3,000 is claimed by each of the five plaintiffs.

Domiciliary service was had on James, through his wife, at his residence in Houston, Texas, and was executed through the United States marshal for that district; a second service was had on James through the Secretary of State for the state of Louisiana, at Baton Rouge, within the eastern district of Louisiana, this service being executed by the United States marshal for the eastern district.

Service was had on Highway Insurance Underwriters through the Secretary of State and was executed by the marshal for the eastern district of Louisiana.

The defendant James moved to dismiss because (a) "the defendant was not and is not subject to service of process within the Western District of Louisiana, because he is and was a citizen and resident of the state of Texas and was not in the state of Louisiana at the time of the attempted service of summons herein;" and because (b) "the defendant was not properly served with process in this action, all of which is more clearly shown by the allegations of plaintiffs' petition and by the return of the marshal on the summons issued;" and, also, because (c) "the jurisdiction of this Court is invoked solely on the ground that the action is between citizens of different states, and seeks a personal judgment against defendant, who is not a resident or citizen of the state of Louisiana and was not and is not within said state and district, and has not and cannot be served therein."

The defendant Highway Insurance Underwriters moved to dismiss because (a) "the defendant, Roy C. James, is a citizen and resident of the state of Texas, and was not and is not subject to service of process within the Western District of Louisiana, and he was not properly served with process in this action, and the said Roy C. James is an indispensable party to this proceeding;" and because (b) "the defendant is a corporation organized under the laws of the state of Texas and was not and is not subject to service of process within the Western District of Louisiana, and the defendant has not been properly served with process in this action, all of which is more clearly shown by the allegations of plaintiffs' petition and by the return of the marshal on the summons issued;" and, also, because (c) "the summons was served on it through the Secretary of State of Louisiana in the Eastern District of Louisiana, and it is not and was not in the Western District of Louisiana and cannot be served therein."

We are disregarding the domiciliary service had on James at his residence in Houston, Texas, and executed by the United States marshal for that district. The second service, the one through the Secretary of State, as agent for James, is the one we use in the case.

Before discussing the main question in this case, it is necessary to decide as to whether or not Roy C. James, whom we might call the main defendant, is an indispensable party to this proceeding insofar as the codefendant, the insuring company, be concerned. We believe Act 55 of the Legislature of Louisiana for the year 1930 to be sufficiently broad to prevent the application of any kind of theory of indispensability of one party or the other. The statute authorizes the suit clearly as brought herein, and particularly under the allegations of Article VIII of plaintiffs' petition, previously quoted. The applicable part of the statute reads as follows: "* * * Provided further that the injured person or his or her heirs, at their option, shall have a right of direct action against the insurer company within the terms, and limits of the policy, in the parish where the accident or injury occurred, or in the parish where the assured has his domicile, and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido."

It is to be assumed that the plaintiff will compel the production into court at time of trial of the contract between James, the tort-feasor, and his insurer.

The venue in this case is clearly established as the plaintiffs have residence in this district. Judicial Code, Section 51, 28 U.S.C.A. § 112(a). This opinion will develop that double venue is established, because each of the two defendants has by contract consented to be sued in the courts of Louisiana, federal as well as state.

It follows rather simply that service of process upon each one of the defendants, through the same appointed agent, the Secretary of State, is legal, irrespective of where might be the actual physical residence of the Secretary of State, and whether executed by the marshal of the western district or the marshal of the eastern district of Louisiana.

In reaching the above conclusions, we must confess frankly that we have moved mentally with much vacillation, for there are a number of respectable opinions along strict lines of interpretation leading to a contrary view; and there are those equally respectable opinions along liberal lines of interpretation, placed on what, we think, is equally good legal foundation, which support the views of this opinion.

Whether to be strict or liberal with the rule of interpretation should be decided, to some degree, by the practical result attained. To the lay mind and, we hope, to the trained legal mind, it is not logical to say that in a case such as the one at hand, if the Secretary of State perchance had residence in the western district instead of the eastern district, we should have no case to decide. It is disappointing to the lay mind, and should be more so to the legally trained mind, that in such a case as this it should be important whether or not the officer making service of process was the marshal of the one district or the other. It would seem that the draftsmen of the Rules of Civil Procedure thought of this when they composed Rule 4(f), 28 U.S.C.A. following section 723c, as follows: "All process other than a subpœna may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state. A subpœna may be served within the territorial limits provided in Rule 45."

We now reach our task.

(a) Is the Highway Insurance Underwriters, a corporation, already blessed by jurisprudence with the fiction of being a "person", in court as to its "person"? A judgment against it, in personam, is sought.

The law of Louisiana, providing for civil process against non-resident insurance companies, authorized to do business in Louisiana, is, as follows (Act 105 of 1898, Art. II, § 1, Dart's La.Stats. (1932) § 4018):

"No Insurance company, corporation, association or society organized under the laws of any State in the United States, or any foreign country shall directly or indirectly issue policies, take risks or transact business in this State, until it shall have first appointed in writing the Secretary of State of this State to be the true and lawful attorney of such company, corporation, association or society, in and for this State upon whom all lawful process in any action or proceeding against the company, corporation, association or society may be served with the same effect as if the company, corporation, association or society existed in this State. Said power of attorney shall stipulate and agree on the part of the company, corporation, association or society that any lawful process against the same, which is served on said attorney shall be of the same legal force and validity as if served on the company, corporation, association or society, and that the authority shall continue in force so long as any policy, or other liability remains outstanding against the company, corporation, association or society in this State....