Lake v. Texas News Co. , 51 F.2d 862 ( 1931 )

HUTCHESON, Circuit Judge.

Plaintiffs filed this suit in the district court of Galveston county, 'Tex., against the Texas News Company, Inc. By amendment, plaintiffs joined the Home Indemnity Company, alleging that that company had by an insurance contract with the Texas News Company, its insured, obligated itself to pay to persons' injured by the negligence of that company all damages which they might sustain, and that it would satisfy and discharge any judgment rendered against the insured because of such injuries.

Upon this amended petition, which recited that John Suggs was the general agent, process issued to Dallas county, Tex., and the sheriff returned it, reciting that he had executed it by delivering to the Home Indemnity Company by delivering to Ben Harrison, its agent, in person.

The defendant Home Indemnity Company did not make answer to the term of court to which this citation was returnable, but later appearing, as it claimed, voluntarily filed its petition and bond for removal, asserting that plaintiff’s petition disclosed the existence of a separable controversy.

The motion to remand makes three points: (1) That the removing defendant did not give the preliminary notice of intention to remove as required by law. This point I find the facts do not sustain.

(2) That the motion was filed too late because filed after the time when defendant was required to answer. I find against this ground of the motion also.

It is plain, upon the authorities cited bj both plaintiff and defendant, that the sheriff’s return was not sufficient to support a default judgment, and therefore to compel the defendant to answer at the term to which it was returnable. It did not, as it, should have done to require answer, disclose that Harrison, the person served, was the character of agent upon whom service under the statutes would be effective. Standard Accident Ins. Co. v. Edwards (Tex. Civ. App.) 1 S.W.(2d) 321; Delaware Ins. Co. v. Hutto (Tex. Civ. App.) 159 S. W. 73; Latham Co. v. Radford Grocery Co., 54 Tex. Civ. App. 510, 117 S. W. 909.

The third point, that the petition does not assert a cause of action against the Home Indemnity Company separate and distinct from that asserted against the Texas News Company, which is capable of being finally determined as between plaintiff and the insurance company, and complete relief afforded without the presence of the other defendants, I think well taken, and the cause must be remanded. Torrence v. Shedd, 144 U. S. 530, 12 S. Ct. 726, 36 L. Ed. 528; Graves v. Corbin, 132 U. S. 571, 10 S. Ct. 196, 33 L. Ed. 462; Minar v. Sheehy, 56 App. D. C. 318, 13 F.(2d) 290.

The existence of a separable controversy is determined on the allegations alone of plaintiff’s pleading. The pleading in this case discloses an agreement on the part of the removing defendant to stand liable on any cause of aetion for damages arising against its insured, Texas News Company, and, further, to discharge any judgment which might be rendered against its insured. It is perfectly competent for an insurance company to make such agreement, and if it does so it puts itself in like case with the insured with whom it has agreed, and gives to any person injured a direct action against it and its insured on account of injuries received at the hands of the insured. In such ease, the one injured has one controversy against them both; not two controversies, one against each. The Texas courts have so held. Texas Landscape Co, v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423; American Automobile Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534. See also Morrell v. Lalonde (D. C.) 271 F. 19.

It is not a theoretically separable, but an actually separate, and distinct controversy, as viewed by the courts of the state where the cause is pending, which determines its removability.

The motion is granted, and the cause is remanded.