RIVES, Circuit Judge.
On December 8, 1953, the Industrial Accident Board of Texas entered its order denying appellant's claim to workmen's compensation. The order of denial showed his employer to be "Temco Aircraft Corporation" and its insurance carrier, "Pacific Indemnity Company, 315 Mercantile Commerce Bldg., Dallas, Texas." Pursuant to Section 5 of Article 8307 of the Revised Civil Statutes of Texas,
Those motions were sustained by the district court and the action dismissed on March 1, 1954.
Whether any such corporation exists as Pacific Indemnity Insurance Company, a Massachusetts corporation, does not appear from the record, but we would think that from the geographical designations that is most unlikely. The plaintiff's original complaint further described the defendant as the company insuring plaintiff's employer under the terms of the Texas Workmen's Compensation Act, and attached to and made a part of the complaint as Exhibit A was a copy of the award of the Industrial Accident Board showing the name of this insurance carrier to be Pacific Indemnity Company. It is not denied that Pacific Indemnity Company was in fact such insurance carrier. It had, in fact, defended the claim before the Industrial Accident Board. Still further the original complaint alleged: "Service of process may be had upon V. T. Bartley, an agent of Defendant, 315 Mercantile Commerce Bldg., Dallas, Texas." This was the name and address of an agent of Pacific Indemnity Company. The record thus plainly shows that Pacific Indemnity Company was the defendant intended to be named and served in this action. The mistake in name did not mislead or cause any prejudice to the Pacific Indemnity Company.
In the case of Davis v. L. L. Cohen & Co., 268 U.S. 638, 45 S.Ct. 633, 69 L.Ed. 1129, relied on by the district court, the suit was filed in a Massachusetts State Court against the New York, New Haven & Hartford Railroad Co., described as a corporation "operated and controlled by the United States Railroad Administration". The Railroad Company itself appeared and filed an answer. No further proceedings were had for more than two and a half years, when on the ex parte motion of the plaintiff the writ and declaration were amended by striking out the name of the Railroad Company and substituting the name of James C. Davis, Agent, and the Director General of Railroads, as the party defendant. As a matter of pleading, this amendment was permissible under the liberal provisions
The question of consent of the Government to be sued, and the question of substituting a new party for an actually existing party defendant, upon which questions Davis v. L. L. Cohen & Co., supra, turned, are not involved in the present case.
Instead, this case is governed by the Federal Rules of Civil Procedure, particularly Rules 4(h) and 15, 28 U.S.C.A. Under those liberal rules, the Pacific Indemnity Company should not be permitted to take advantage of a mere misnomer that injured no one, and the district court erred in refusing to permit the amendment of the summons and of the complaint and in dismissing the action. United States v. A. H. Fischer Lumber Co., 4 Cir., 162 F.2d 872. We think that Professor Moore, citing that case with approval, accurately stated the rule:
The judgment is, therefore, reversed and the cause remanded.
Reversed and remanded.
FootNotes
"In the United States Supreme Court, the case of Davis v. [L. L.] Cohen [& Co.] 268 U.S. [638, 45 S.Ct. 633, 69 L. Ed. 1129], held that the amendment striking out the original defendant, and, substituting a new party defendant, was, in effect, the commencement of a new, and, independent proceeding to enforce the asserted liability, and, therefore, the time of limitation ran up to the time of the filing of that new suit."
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