Elbert v. Lumberman's Mut. Cas. Co.

201 F.2d 500

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 17, 1953
• Docket: 14353_1
• Status: Published

Opinion

PER CURIAM.

Brought under the provisions of LSA-Revised Statutes 22:655, the Louisiana Direct Action Statute, against the insurer in an automobile liability policy issued by it to . one S. W. Bowen, and .covering .the members of. his household, the suit was for damages sustained.by plaintiff as the result of the alleged negligence of Mrs. Bowen, the- driver of the car. '

The defendant moved to dismiss the action on the ground that the complaint fails to state a ¡claim against defendant upon which relief can be granted, and that there is, no diyersity of citizenship between the plaintiff and Mrs. Bowen, the real party in interest as defendant.

The district judge, in a detailed opinion, 1 fully discussing the reasons presented for and against the motion, and canvassing the applicable authorities, concluded,' contrary to the contention of plaintiff, that the question presented for decision was not fore closed by our cases 2 but was still open to him. So concluding, he sustained the motion and dismissed the action.

Plaintiff is here insisting that upon principle and authority, and particularly upon that of our cases cited in the note, the judgment was wrong and must be reversed.

We agree. The judgment is, therefore, reversed and the cause remanded for further and not inconsistent proceedings.

1 . Eübert v. Lumbermen’s Mutual Cas. Co., D.C., 107 F.Supp. 299. Cf. to the contrary Lewis v. Manufacturers Cas. Ins. Co., D.C., 107 F.Supp. 465.

2 . New Amsterdam Cas. Co. v. Soileau, 5 Cir, 167 F.2d 767, 6 A.L.R.2d 128; Fisher v. Home Indem. Co, 5 Cir, 198 F.2d 218; and Cushing v. Maryland Cas. Co., 5 Cir, 198 F.2d 536.