*2 HUTCHESON, Before CAMERON JONES, Judges. Circuit Judge. HUTCHESON, Circuit Brought Raymond Lawson, ap- against Peoples pellee, & Finance Loan Corporation, appellant, and two appellant’s agents, the was in trover ap- wrongful for the conversion agents pellant and eleven automo- damages owned him. biles sought alleged value, as were the market $13,095, rea- of the automobiles hire sonable thereof from the date appellant conversion. The denied plaintiff was owner of the automo- alleged complaint, in the biles described them, a value of ten $9960.00 by way special defense asserted ap- vested in title automobiles had pellant pur- an innocent *against chaser, whom Lawson was es- any. topped title, to assert his appellant, alleging Thereafter, Company, given plaintiff its check to larger part of the loss under a for the interest, a real party plaintiff, to add it moved denied, was a motions trial on jury resulting in a merits1 before judgment verdict Georgia, Rome, be, light Stated, car dealer went to must used Chattanooga, pur- jury verdict, Tennessee, where he these favorable to most Raymond purchase ported son, Law- material facts: are the Dennard, Auction, August 1, 1957, Douglas dba Auto On gave Douglas Sales, president Inc., eleven automobiles suit. Dennard Motor asserting Defendant-appellant, reversible the automo- $11,655.00, the value insisting ors,2 rental value is here err biles, $2,369.85, as wrong and the be re of conversion time between the versed. time trial. *3 “simply Branan, Bank transaction he took on the with drawn checks Lawson certain check”; which, made that Dalton, honored those notes and been this of purchase anything paid the he didn’t about where paid, the ask have and wonld from; that Branan price automobiles came automobiles. the of anything thereupon didn’t tell him about the auto- to Dcnnard delivered Lawson ; know of his automobile mobiles that he not to document as a written knowledge provided specifically that where automobiles own the which was were; accepted remain and that he the notes would automobile the title to each knowing Chattanooga seller, e., Auc- Auto from Branan “without whether the i. in tion, actually busi- had the cars or not”. he there Lawson did name in which given Appellant financing Douglas “any for ness, had been draft check or until part vehicle, Sales, N. price or Motor Inc. since 1955. Charles of said the sale paid McOoy vice-president a same, and stock- and was has honored been pro- appellant corporation. He further holder the documents These in full”. vice-president draft shall direc- had also been a and said “until check vided that full, Douglas Sales, paid in title of Motor Inc. since tor and honored have been McOoy with shall be 1955. appellant associated vehicle described to the above buy- corporation pass by finance since 1947. not to the seller and retained However, compa- Ms con- of “finance considered because er nor sale be shall ” * * necessary ny affiliations”, he found it to summated. Douglas resign vice-president by given Den- Motor Lawson of to checks 1957, writing Aug. 2, Sales, on dis- Inc. were eleven automobiles nard for the appellant day the same that claims to not Lawson was honored and Douglas made loans to on were the the automobiles the automobiles. possession time automobiles in suit. at of Lawson carry Appellant permitted Douglas had information in its records to them was August July 30, 1, following giving away, and 31st and of checks on consulted, 1957, which, delivery by Douglas had it been would of the eleven and discovery Douglas led it that to Lawson. documents opinion Sales, continue busi- Inc. in his Motor testified that Lawson au- due financial difficulties. each of the eleven ness to market value Aug. Aug. appellant Aug. first time On for the to tomobiles heading identity of the automobiles under chocked the sum shown was the copy Price,” on its bills of sale of the sales which had listed on the “Sales given secure to Dan Smith shown to debt for each car as document by checking August 1, on the mo- in evidence Branan introduced eleven documents actual- were numbers on the automobiles Exhibit No. 1. These tor as Plaintiff’s Douglas Douglas ly prices found Motor Sales lot. Motor on also the place possession Sales, Inc., of the automo- of busi- then took which had its agreed biles, Marietta, Georgia, Rome, Georgia, had to sent to them ness at purchasers. pay them to various automobiles. sold representative Aug. 2, On Sales, (1) Douglas one Branan The denial of its motion to add Inc. Motor prepared as a Co. 11 notes and bills sale to Cas. Doug- plaintiff; debt, of which the terms secure Sales, purported (2) The of its to direct con- denial motions Inc. las Motor (a) plaintiff

vey failed verdict because a prove the eleven automobiles security appellant ever had to the it had title for loans automobiles; because, Douglas. (b) had had if it Branan made title, Smith, established as matter Dan a loan the evidence officer took them appellant, employ bona fide law that defendant was a and Smith estopped Doug- purchaser payable appellant’s was check issued it; (c) Sales, $10,520.00, because assert title Motor Inc. las competent evidence was insufficient the loan. amount of verdict; support value to that Branan did not deal testified Smith Peoples (3) anyone evidence as at admission else Loan with Chattanooga Corp. automobiles in in connection value Finance charge automobiles, that the court sales eleven loans on price be at auction there could con- He further with him. Branan dealt value; the issue he made this sidered at the time testified contrary, price sales do think On so. automobiles We briefly stated, Chattanooga This auction in error. for the reasons hereafter because, is so evidence, think the uncontradicted we Lawson sold the automo- affirmed. when Douglas, title biles to did have the Appellant’s first contention that theory and the case was tried company, payment by not defense, Indeed, appellant, he had. in its withstanding not a loan alleged Raymond Lawson, “plaintiff company, payment, Auction, dba Auto sold subrogee, made a have been should Douglas Inc., Sales, normal Motor summarily suit, dis of said usual course the business say posed is sufficient to of. *4 company, ques- cars automobile the contrary the settled to that law is the Georgia, there- tion”. Under the laws of support v. Luckenbach and to refer fore, issue, fac- there was no real either Sugar Rfg. Co., U.S. 248 W. J. McCahan legal, had tual or as to whether Lawson 53, 63 139, pages 148-149, 39 S.Ct. at at time title Douglas, the automobiles the Am.Jur., 170, “Insur and L.Ed. ance”, to 39 through whom alone Supp. 1337, 1002-3, pp. 1959 Sec. purchased claims, at them from Lawson Johns, Ga. p. 86 222. Cf. also Green v. Chattanooga. Conley Thornton, 81 v. Augusta 78, App. 646, 72 and S.E.2d 154, Ga. 7 S.E. 127. Broadcasting States, 5 Co. United v. light: 199. 170 F.2d In the of the verdict only appel $11,655, the admission Appellant’s States on United reliance pleadings lant in the value that Surety Co., U.S. Aetna & 338 v. Cas. $9960.00; the automobiles was 207, 171, 366, entire- 70 94 L.Ed. is S.Ct. value; evidence a whole and as as ly misplaced, that suit both because governing proof of value the liberal rules Anti-Assignment do with the elsewhere,3 little and it 3477, 203, Act, and 31 § R.S. U.S.C.A. short of frivolous assert that it was in- no was because charge jury con error to could that volved, and, page 338 shown 382 of as at that, prices evidence of sales and sider S.Ct.; page held 216 it was U.S. of 70 at insufficiency proof because of the though Surety Co., it had value, di verdict should have been taking an not a loan was without put Moreover, appellant forward rected. indispensable party. If, here could it ground for the below such direction Georgia Casualty and Sure- claimed that verdict, do it here. of a cannot necessary ty Company proper certainly indispensable, party, not it brings us to the storm center This joinder would have ousted and since its strongly pressed case, most the error court, jurisdiction of refusal on, that a verdict should and relied join error. could not it ground the evi- been directed established matter of law dence summary disposition same purchaser fide was a bona defendant plaintiff may be made claims: that estopped assert title prove ever had not title it against it. automobiles; in that there was quoting part, appellant, On its competent support evidence to sufficient Pontiac, Inc. Thom v. Gouldman-Taber verdict; admission and that the 279, as, Ga.App. charge 96 99 711: S.E.2d value as to the evidence Dannals, Ga.App. 389, charge 87 (4) v. 74 Grant claimed error 119; defendant, Farm Products Co. v. Eu- S.E.2d time of unless Ga.App. banks, 604, 327; loan, making 116 29 S.E. of ac- relied on fact Powell, Ga.App. sender, 95, possession 10 Frost Co. v. 72 of the cars tual estop- S.E. 719. not assert the defense of pel.

533 accepted simply application purchased a car "Where borrower; worthless, loan on the check, statement found to later pos- that, Tennessee, put into under the law car is and where made, purchaser later where sale was Edwards v. and is session purchaser original Co., Central 198 Tenn. Motor 277 sold Taylor Equip. con- Gill purchaser valuable S.W.2d Co., v. innocent Ga.App. 755; sideration, will lie for the 73 S.E.2d trover Douglas Sales, Cy prop- original Inc. Owens Motor v. to recover seller Inc., Ga.App. 890, erty.” S.E.2d 874 generally elsewhere, the title to the car citing Capital support Automobile pass; appellee did not insists un- Ga.App. 873, Ward, 189 S.E. v.Co. evidence, including especially der the Ga.App. 713; Bainbridge, Blount appellant, the relation between the bor- Smith, 122; Wolfe v. 53 S.E.2d rower, Douglas, insolvent lend- 675; South- Ga.App. 55 S.E.2d er, fully supporting, a case was made out Ga.App. Elliott, 86 v.Co. ern Discount demanding, verdict. 605; facts that the asserts 70 S.E.2d bring principle within of this case reading A careful require *5 laid verdict down including particularly point, cases on the appellant. judgment for case, supra, the Gouldman-Taber relied County, quoting Appellee, from Cobb by appellant, on and the East Atlanta 535, Lights, 211 Ga. Board of etc. v. case, supra, by Bank appellee, relied on page 84: S.E.2d that, us leaves in no doubt under Geor estoppel equitable will gia “Before law, equities here are asserting party rise, must appellee, jury and the verdict of the is upon the dec- have relied and acted amply supported by per evidence, or conduct larations haps by indeed demanded it. sought estopped and not on to be In reasoned the well Gouldman-Tabor knowledge judgment.” own Judge writing case, Gardner, opin- gathers together ion, v. Nichol Atlanta Bank from East and discusses other Ga.App. 557, upon son, particular 701: 63 S.E.2d cases facts. Stating principle that relied on in nothing did defendant “The the Gouldman case was enunciated first plaintiff or deceive mislead leading Capital case of Automobile The the loans Waters. make Ward, Ga.App. Co. v. 189 S.E. nothing except upon plaintiff relied strongly correctly on he relies it as making the loans. word Waters stating the rule its basis. is power no defendant conferred interesting Judge McIntyre, note that upon in was used Waters opinion case, who that wrote wrote injury upon plaintiff.” flict opinion in the later case of East At- urges upon case of Gould- us that the Nicholson, appel- Bank lanta on which man-Taber, supra, other cases like the relies, that, opinion, in the latter lee by appellant, does not state relied nothing he that there was stated that, ruling, under evi- -different contrary opinions earlier thereto. case, the verdict of the dence was We think supported, amply demanded. was that affirmed. Pointing plaintiff facts: that Affirmed. expressly reserved title of sale bill in his paid; defend- the check until Judge CAMERON, (dissent- Circuit ask to see the bill not see or ant ing). inquire about or otherwise sale join my I am unable to Brethren in see or ask see terms; did not that it deciding upon automobiles; of this it relied case, correctly done; court nothing plaintiff below held that Georgia Casualty by Com- the carrier to which general pany indispensable insurance, independ- was not an law of ninety-five ently special per agreement, when cent owned by subrogated upon pay- the claim Lawson. The ac- sued would become begun prosecuted by tion was Law- ment them of the loss. The car- permit- transaction, son as sole rier he was insists per loan, ted to the five cent of recover while terms sub- along entitled, insurance; payment fund to which stance a ninety-five per loan, with the cent to which that to treat it as if it were a company agree- entitled. insurance is to follow the letter of the disregard and to the actual ment facts; tendency I am not unmindful give and that to it effect as a decisions, statutes, as well as court loan is to sanction fiction and sub- anonymity throw a mantle around terfuge. good ap- But reason companies which have become pears questioning either for its le- subrogated rights insur- of their gality denying or for its effect. having paid eds reason losses suf- * * * Whether the transfer of fered largely them. These decisions stem thing operate or other shall the decision payment, ordinarily as a mat- Court in Luckenbach v. W. J. McCahan ter which is determined in- Sugar Co., 1918, 248 U.S. 39 S.Ct. the trans- tention ship- 170. In L.Ed. that case Compare Kimball, action. consignment sugar per of 37, 44, Wall. 18 L.Ed. 50. in- company in full the insurance obligated surer could have been carrier sea claimed that it was en- *6 pay to liability until condition the full insurance. to the benefit of the titled e., non-liability of the —i. making payment order When and in the had The carrier been established. litigation, retain control of the the in- obliged shipper could not been the surer took from ceipt” insured a “loan re- to surrender to the insurers the con- obligating pay the insured to back against litigation duct of the the might any the insurer amount which carrier, paid. until the insurers had against recovered in action the the securing In consideration of them (along shipper. ship owners with litigation, the conduct the charterer) contended in the action the the insurers made the advances. brought shipper name of the “but the ingenuity is creditable to the benefit of insurers” that for sole arrangement business men that an nothing receipt was a sham the loan but should have been which is devised shipper had been and consonant both with the needs of ought permitted not to be full and jus- commerce and the demands of Supreme the action. The maintain tice.” [Italics added.] otherwise, upholding held loan Court receipt (248 holding words behind device these The reasons U.S. are page 148-149, 55): present pages 39 S.Ct. here. Lawson made at claim August against 1, 1957 soon after gia Casualty Geor- “Agreements of this nature have Surety Company for loss- practice in a common business been * * * growing him sustained es out of years. many It is clear given checks him. worthless These loss- according enforced valid paid in eleven drafts es were dated Au- terms, they accomplish the to their gust 13, all which had been converted They supply purpose. desired shipper August cash of the money Ea.ch promptly contained in its face “in drafts full set- indemnity or extent com- full of all claims as result of tlement accident pensation entitled to which on August Chattanooga Policy 1 at loss; they pre- of the account — 1008;” draft bore insurers claim CT the in- serve to rights endorsement insured’s in event of scription Lawson’s “ad above distinguish vance.” These Auction facts name present by Lawson, endorsement case the ma Company “The those cited jority opinion and others from this release draft constitutes of this herein Court receipt the account which have rendered recentl in full of y.2 payments made were stated.” These quoted provision policy pursuant begun, moreover, This action was margin.1 attorneys the name of Lawson August 23rd. policy therefore, plain, It is against filed, person It was who policy indemnity was an held Lawson given (such the bad checks as was required payment, and immediate against Luckenbach), done third certified that he endorsed the drafts persons, here, appellants had come who payment of in full received amount possession into the the cars which the policy. him under the due rights covered. bad checks Whatever writings nature and fixed the These Casualty had third these obligation policy character of persons were not such were dealt with facts, performance. there- of its contemplation within were from Lucken- fore, the case differentiate Luckenbach loan case where the trans- quotation from case In bach. approved. action was supra show that the italicized words It is further clear that the entire trans- obligation pay insurer Georgia Casualty action between until the insured liti- the insured gated payment Lawson was the of the amount liability question policy due under with Lawson of its Company carrier; Insurance liability ninety-five per entire cent carrier was not. if the was liable his loss. idea of the loan complimented What originated seems not until De- ingenuity led business was the (appel- when the cember defendant provision make men to began taking lant) deposition during period the insured insurer to Manager the Assistant General Claims liability the carrier was be- when the Georgia Casualty, responsible *7 offi- ing litigated. had its The loan there handling cer this transaction. At that genesis charac- in the its sole basis and attorney Casualty time, is There insurance contract. er Company produced the loan contract insurance no basis such ap- time the man was the first who by required us, its terms which before proved the drafts and authorized upon payment insured immediate supervised payment policy lia- filing proper a claim. bility or had ever seen it been advised policy makes no mention before us The document existence. any or of the insurer advances receipt He admitted that the loan even insured, pro- possible played part Company’s paying loan to no subrogation policy.3 the insurer it owed its no vides what Ray- agrees indemnify Company 551; Services Automo F.2d United “The 1. Russom, Cir., Auction 5 bile Ass’n v. 241 Lawson F. mond d/b/a against pecuniary Chattanooga, Tenn., 2d 301. given by purchas- owing to checks loss Georgia Casualty 3. When the officer of guaranteed by ing endorsed dealer giving deposition he made the fol- assured.” lowing answers: provision: “Any policy the further And and from whom did “Q. When Company may be which the losses Casualty Surety Company obtain that upon immediately payable he silall receipt? liable Company proof claim Georgia Casualty “A. Com- provided above.” pany today it received from Mr. Smith attorney] got Corp. it, g., [its America John I v. don’t Celanese E. —where Inc., Industries, know.” Clark ordinarily All of these facts were established names, sue in their own parties may all joined contradiction. Under the test without in interest be un- language set forth in the italicized from der Rule 19.” The result was all supra injured Luckenbach is parties it clear that three company, and the insurance August “transfer” paid part which had of their parties respective Lawson was intended losses, proceed could in one payment obliga- of its unconditional suit. tion himto and not as a loan. This, genius me, it seems is the question opin parties is, my law, amplified by ion, under of this case to be Court in United States Aetna determined federal law as estab Co., 1949, Insurance 338 U.S. 17, F.R.Civ.P., lished Rule U.S. S.Ct. question 94 L.Ed. 171. The C.A. An en banc of this decision Court company there was an whether insurance construing bearing has on the bring Rule against suit in own name question presented. here District upon the United States a claim to which for the Northern District of Tex subrogated by payment it had become motion had denied a of the United an insured who would have been able personal injury States dismiss from bring the action. court answered company suit the claim insurance question in the affirmative and dis- injured parties paid which had Rule, evolution of cussed the which subrogated to their claims.4 become formerly Equity Rule 37 and now reversed, Judge with This Court first dissenting.5 one 17(a). Rule This some lan- of its rehearing Upon by the (338 guage page 380, U.S. at S.Ct. permitted banc,6 Court en the Court page 215): injured parties also the the three tain tive amounts due sorted own “ insurance C.P., an ** injured name; opinion to, * company against usees are but persons in full could not main said company them. recover the wrongdoer under Rule longer interested In the settling before F.R. to be re respec course in its If must sue in ify tire ^[*] both “If the them real ^[*] loss has ^[*] suffered paid only part insured and the insurer subrogee real have substantive its own tortfeasor has name. interest and in interest. insured, * * * an en- rights qual- loss, ascertaining McKay, indispensable party, Now, as an Mr. court “Q. “ * * * honored, say, I must shall stated: as al- whether- these drafts *8 part that, ways happens cases, receipt plays very in does in these counsel the loan it? very understandably desperate make a ”* * * get before the man It hasn’t effort “A. policy clear that the loan has an insurance which Prom all of this it is is the ul- part receipt a of the aim this not constitute timate of all business. I don’t responsible of- shown think under file in the hands here that Casualty. pro- Georgia grounds Georgia It was for me to make ficer of there is hearing by Casualty plaintiff. deposition party the at- a at the Since duced part torney. be, why a of the I don’t It did not form have elected not to see company paid right which Mr. Lawson doesn’t transaction to be insured, party plaintiff, and was not and I so it owed the rule.” what typewritten form, company is a but on a States, D.C., document, F.Supp. in or contem- mentioned 4. Hill United not only policy. plated conclu- 129. from drawn these can be sion which Hill, Cir., a mere 5. that the loan United States v. facts is 171 F.2d utilized in connection with the 404. device exigencies litigation. appellant denying . 6. 5 the motion 174 F.2d In company bring into the ease the insurance subrogation partial pelled. Lawson, “In cases owning, pro as tanto suit whether question arises insurer, only per cent, permitted the may self five brought by insurer owning company ninety- be the insurance brought alone, be per litigation whether five cent to take hold his insured in the name and conduct it in his name. That did not insur- present of the use and for the situation, own use true a but was a sham. par- company, all pleadings whether ance did not and assert “reveal join ac- in interest must ties plaintiff.” actual interest prac- tion. common-law Under the have sued Lawson could Granted that subrogation rights acquired tice per for his five cent Geor- an action in could enforced be gia Casualty joined him or insured in the name law- ninety-five independently per sued cent, for its * ** use, Mr. insurer’s as such a situation we do not have Justice characterized Stone filing action, from here. This vestige the common ‘a rule as complaint to the rendition that a to admit law’s reluctance unitary judgment, final handled as a assigned, may be chose in action part claim Lawson and owned formality today a [which] being part by Casualty, widely abolished which has been of an undivided interest. asserted owner * * * legislation.’ Under long ago Seeley v. This Court held as practice Rules, ‘use’ Federal Cornell, Cir., 1934, an 74 F.2d long unnecessary, obviously has an interest chose owner of undivided a * ** equity Rule true separately to recover could sue action 17(a) almost verbatim was taken including the without own interest Equity No reason Rule 37. joint has held But other owners. why practice appears should steadfastly action involves an partial required now in cases be present party can- the interest of a not subrogation, insured and since both prosecuted name of a or in the portions of sub- insurer ‘own’ owning only partial party interest. appear in should stantive Newell, Cir., 1949, 172 Hudson v. See litigation in names. their own general question F.2d where the “Although sue, either These indispensable is discussed. timely upon mo- States, the United being undisputed the interest facts joinder. may compel tion, being before ** * pleadings should admittedly by the dealt with actual assert the reveal and made to leading it, proceedings and all of plaintiff, indi- and to interest court below I error for the think it was any others in cate the interests of bring deny motion to supplied.] [Italics the claim.” party. I, indispensable respectfully therefore, dissent. I think even under the Shields v. joinder test, CAMERON, Rehearing denied; Cir- Barrow company dissenting. here com- Judge, should have been cuit *9 note, in a est is true of such a nature that a final decree clearly parties were affecting such cannot be Court said made without either indispensable interest, leaving Bar controversy Shields v. not row, 130, 139, How. L.Ed. condition that its final termina- wholly in laid down test tion inconsistent dispensable equity good “an inter- must have conscience.”