Lake v. Texas News Co.
51 F.2d 862
S.D. Tex.
1931
Check Treatment

*1 LAKE et al. v. TEXAS NEWS CO. al.

No. 1075. Texas, Court, Galveston Division. S. D. July Sept.

Rehearing Denied Stiglich, Galveston, Tex., Hart &

plaintiffs. King, Dutton, Houston, Battaile & Tex., for defendants. HUTCHESON, Judge. Circuit filed this Plaintiffs district county, 'Tex., against court of Galveston amendment, Texas News Company, By Inc. plaintiffs joined the Indemnity Home Com- pany, alleging company that with the Com- contract obligated pany, pay itself to persons' injured by negligence damages they might sus- tain, satisfy and that it would the insured injuries. because of such Upon petition, this amended Suggs general agent, cited that was John process county, Tex., issued to Dallas sheriff it, reciting returned that he ex- ecuted it delivering to the Home Indemni- Company by ty delivering Harrison, to Ben agent, person. Home Indemnity defendant Com- pany did not make answer to the term of returnable, this citation to which was appearing, later claimed, voluntari- ly petition removal, filed its and bond for as- serting disclosed the separable controversy. points: remand makes The motion to three (1) give That did not preliminary notice intention to remove required point law. This I find facts do sustain. (2) motion was late be- That the filed too cause filed after time when defendant required answer. I find ground of the motion also. bj plain, upon authorities cited defendant, that the sheriff’s return sufficient to was not default compel judgment, and therefore to at the term fendant to answer to which it was not, did returnable. should have require answer, done to Harri disclose that served, son, was the character of agent upon whom service the statutes would be effective. Standard Accident Ins. Co. v. Edwards *2 863 right joinder joint does make a 321; Ins. Co. v. Hutto of Delaware not 73; v. Radford aetion of cites App.) 159 Latham Co. out two' It ones. S. W. 510, S. 39 Grocery App. Tex. 117 v. Tire & Rubber Co., 54 Stewart (2d) 311, Lynch 309, F. Insurance Co. v. 909. (D. C.) 725, proposition 15 F.(2d) the petition does point, The third that “the cause of does not become action against the Home not assert a cause of action joint, joint mere several, from the Indemnity Company separate and distinct itself of fact elects to avail against the that asserted statutory permission parties in the and unite finally being Company, capable of which is action.” the same the in plaintiff and determined as between rigid pre also It in of afford company, and relief joint cise common law of determination the ed the other defend of and severable character of cause of aetion taken, cause must think well and the ants, I (D. C.) Genuine Hat v. Webb 36 F. Works Shedd, 144 U. S. be Torrence v. remanded. (2d) Henderlong 265 which with v. Standard 530, 726, 528; 36 Graves v. L. Ed. S. (D. C.) Oil Co. 17 and other 196, L. Corbin, 132 10 33 571, U. S. S. Ct. cases, persist Court in to the 462; Sheehy, App. 56 D. C. Ed. 318, Minar v. (C. C.) rule established in Warax Case F.(2d) 13 290. long 72 F. 637, since but discarded controversy separable The Supreme in Ry. Court Alabama Great v. So. allegations of alone is determined on the Thompson, 212, 200 161, U. S. 26 50 S. Ct. pleading The pleading. 1147; Ed. 4 Ann. N. 441, Cincinnati, L. Cas. part an on of discloses Ry. Bohon, & T. v. 221, P. 200 26 S. O. U. S. any removing defendant liable on to stand 166, 448, 1152; Ct. 50 L. Ed. 4 Ann. Cas. damages arising against cause aetion for of Ry. 209, Southern 217 30 S. Miller, v. S.U. Company, insured, and, fur News 450, 732; Chicago, Ct. 54 Ed. P. L. R. &I. might ther, to which Schwyhart, 193, 250, 227 33 S. Ct. U. S. v. is against per be its insured. 473; Chesapeake Ry. 57 L. Ed. & O. v. Cock competent fectly for an rell, 278, 232 147, S. 58 L. Ed. U. Ct. puts so make such and if it does Ry. Carson, 139, v. 194 U. S. in like case with the insured with whom itself 609, 24 48 23 L. R. L. Ct. S. gives agreed, in 686; Illinois Cent. R. Co. of of Illi State jured against in a direct action it and its Sheegog, 101, 308, nois 215 S. 30 U. S. Ct. v. injuries on sured account received 208, against L. Ed. an action 54 a serv ease, In hands the insured. such predicates master, ant and his lia controversy against them injured one has one bility solely relation, upon both; controversies, not each. two joint several, not but sev The so held. Texas Land Texas courts have eral causes of action. scape Longoria (Tex. 30 v.Co, S.W.(2d) 423; American Automobile long I have believed that it was meant Struwe S. W. v. broadly, hold it was held in the which, (D. Morrell 271 C.) also v. See Lalonde Thompson Bohon Cases and those F. followed, where the matters in contro versy practice are the state theoretically separable, is not a regarded is the suit filed as suable where actually separate, and distinct controver action, relating because to the same sy, viewed the courts of the subject-matter, transaction or therefore re pending, determines its is the cause controversy presenting between movability. present a parties such suit does granted, motion and the cause remanded. though at common the causes of aetion joint. been severable and not 1 Rehearing of Motion to Re- On Motion for p. seq.; 239 pp. 1073, 1074, 1082, § C. J. mand. Baptist Mortgage So. First Church F.(2d) 246; (D. 39 Pabst v. Pe C.) Roxana vigorous in a (D. C.) 30 F.(2d) 953. troleum Co. asserts that here are motion two Cincinnati, & aetion, against it, Bohon, O. P. v. contractu, one ex N. T. causes In 168, delicto, against codefendant; 26 L. Ed. ex U. Ct. 448, 4 Ann. Cas. it was said: “If the properly such and that while be actions joined properly suit under forum practice, in one the state App.) same action.” rivative, secondary, and to be moval.” we know statute many of this joint recovery given son, 194 U. of Texas faith, remedy against plaintiff, in stitution in such eases by against those “Reference and and be eration an aetion for tort which it was the act removed unquestionable right by negligent injuries. liability Applying these Co. v. Struwe laws has filed direct, Landscape courts highest which will convert ease, I think Monzingo v. Jones and laws have declared the Quoting the court controversy for Congress. S.W.(2d) servant of both due regulate nothing in the Federal may proceed absolute, have being prosecuted, it could liable a master there made to the course from provided held the identification (Tex. a ease like the one in the in the same by for the principles exists actions for We have under it and by way of [*] * be so Longoria inescapable electing state, be enforced which, by jointly state, gives such action servant liability of an in primary, laws of here. The courts American its Constitution injury, purpose of [*] App.) complete that Ry. v. Car- or interpreted negligence, A indemnity. case said: (Tex. 610, 48 L. to recover the facts fact that sue for severally plaintiff removal consid- a at bar into Auto. state, good Con- the has no a a insurance tion injury, trary purport has incurred other them as rable make his decided, other is so fact and I think in law, is versy, sue them that reasonable me to be enforced in the ant, person, if such tiff has cause it curred. absolutely, A.) Under Conceding Here, as removing defendant, liability, “the identification east on one of the has controversy, other that it would be because he did it they *3 agreed assumed company agreed assumed these and culpably injured. the determination which in the case master and serv- party a contractual injured by separable controversy have Little way. one. There once an act circumstances, advance to joint against wholly advance that would be same placed it has Six say events, by contract; wholly liability defendants before the liability (of causing Oil its elected that here is a aetion.” case was primarily determinable as to suit. in advance of themselves, the two liability only stand liable to a third culpable different situa- that where one it seems un- the other be- v. Noble For here, of both to and damage, it one contro- defendants, a liable obligors) correctly here the liable to exists. and an- of con- taking act of sepa- may fixes may (C. oc- analogy such situation a better In. executing an insured an insurer perfectly clear that While therefore it fidelity bond, guaranteeing or pub company in this was not a ease the primary against liability. lic In such eases suits wrongdoer having in the sense of jointly been held to be up maintainable authorized, brought or about the or directed Monzingo bond, on the v. Jones tort, and common law commission of the S.W.(2d) 662, and therefore not insured aetion it cause of removable, Centerville State Bank v. Nation joint one, seems not have been Surety al 37 F.(2d) that there is plain to me case, plain- whether motion for is overruled.