In the opinion on rehearing it is stated that:
"It appears to us that it is not clear from the pleadings before us that Union Indemnity Company has assumed the liability of New York Indemnity Company to Florida Motor Lines Incorporated, and, therefore, relator has failed to show that a clear right exists to have peremptory writ issue."
Leave was given to amend the alternative writ of mandamus herein. An amended petition was filed by the relator and an amended writ was issued thereon in which it is alleged that:
"On May 22d 1931, Union Indemnity Company and New York Indemnity Company made a contract for reinsurance, by the terms of which the former assumed the liability of the latter upon all of its outstanding unexpired policies of insurance and uncancelled fidelity and surety bonds, and agreed to fulfill all of the insuror's *Page 773 or surety's obligations thereunder. Union Indemnity Company, by the provisions of the reinsurance agreement, assumed all outstanding and unpaid claims, known and unknown, against New York Indemnity Company, and agreed to adjust and settle with the assureds, the obligees, and any other persons entitled thereto, all losses, damages or benefits arising under such policies or bonds. That, among other liabilities, your Relator, Union Indemnity Company assumed the liability of New York Indemnity Company upon that certain automobile public liability insurance policy theretofore issued by New York Indemnity Company in favor of Florida Motor Lines, Inc., to the same extent that the New York Indemnity Company was liable thereupon as fully and as completely as though your Relator had originally issued such policy of insurance, and now remains so liable upon said public liability insurance policy to Florida Motor Lines, Inc., the said policy being the identical policy referred to in Respondent's return to the original writ in this cause. * * * * * Union Indemnity Company now remains liable and obligated on all policies of insurance and surety bonds of New York Indemnity Company heretofore issued by it, and the bonds deposited by Union Indemnity Company with the Treasurer of the State of Florida, as set forth in paragraph 1 hereof, are held as security not only for the performance of contracts of suretyship executed by it, but also for those made by New York Indemnity Company and assumed by Union Indemnity Company under the reinsurance agreement between them."
The following stipulation was filed in the cause:
"The Relator, having filed an amended petition pursuant to the opinion and order of the Court entered herein on July 19th, 1932, and the amended writ having issued,
IT IS STIPULATED AND AGREED between counsel for the respective parties that the Respondent's return filed herein to the original writ shall stand as his return to the amended writ and the Relator's motion for a peremptory writ heretofore filed herein, shall be *Page 774 taken, deemed and considered to have been renewed as of this date, and
That the Court may forth with proceed to consideration of the cause upon the issues made by the amended writ, the return and the Relator's motion for a peremptory writ and let such judgment herein as ought, in the premises, be rendered."
It now appears that Union Indemnity Company has "assumed all outstanding claims, known or unknown against New York Indemnity Company" including "that certain automobile public liability insurance policy heretofore issued by New York Indemnity Company in favor of Florida Motor Lines, Inc." etc., which particular liability insurance policy is referred to in the return of the respondent herein. In view of this showing in the amended alternative writ and of the stipulation of counsel that the return made to the original alternative writ shall stand as respondent's return to the amended writ, the relator's motion for a peremptory writ of mandamus is granted.
It is so ordered.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL AND DAVIS, J.J., concur.
BROWN, J., concurs in the conclusion.