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TRAVELERS INSURANCE CO. v. BUSY ELECTRIC CO.

No. 18778.

294 F.2d 139 (1961)

TRAVELERS INSURANCE COMPANY, Appellant, v. BUSY ELECTRIC COMPANY, Z. Kermit Remy and Raymond Voelker, Appellees.

United States Court of Appeals Fifth Circuit.

July 17, 1961.

Attorney(s) appearing for the Case

Michael J. Molony, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendant and appellant and third party plaintiff, the Travelers Ins. Co.

Dermot S. McGlinchey, Carl J. Schumacher, Jr., New Orleans, La., for third party defendant and appellee, Z. Kermit Remy and Raymond Voelker, d/b/a Busy Electric Co.; Lemle & Kelleher, New Orleans, La., of counsel.

Before CAMERON, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

We deal here with the problem of third party impleader sought by a defendant tort-feasor against another tortfeasor. Complicating what is otherwise a simple application of a rule simply stated, F.R.Civ.P. 14, 28 U.S.C.A., is the fact that this is a diversity case. Both the enabling Act, 28 U.S.C.A. § 2072, and Erie combine to forbid the accidental creation of a substantive right through the operation of this procedural device.

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