Summary
In Barnett v. National Surety Corp., 195 Miss. 528, 15 So.2d 775 (1943), the supreme court ruled that a Mississippi trial judge could refuse to exercise jurisdiction over an action against an Alabama sheriff on his surety bond because the action implicated the internal police regulations of another state.
Summary of this case from Trust Co. Bank v. U.S. Gypsum Co.Opinion
No. 35458.
December 6, 1943.
1. COURTS.
In determining whether action against surety on bond of Alabama sheriff for damages for sheriff's wrongful seizure in Alabama of plaintiff's truck load of liquor was transitory or local, basis of action was contract and not tort, notwithstanding breach of the bond consisted of a tort (Code 1930, sec. 3309; Code Ala. 1940, Tit. 41, secs. 50, 104).
2. COURTS.
A cause of action which might have arisen anywhere is "transitory," but if it could only have arisen in one place it is "local."
3. COURTS.
In determining whether action against surety on bond of Alabama sheriff for damages for sheriff's wrongful seizure of truck load of liquor belonging to plaintiff was transitory, or local to courts of Alabama, differences in governing statutes of the two states with reference to who may sue and the procedure and fact of inconvenience that would result from trial in Mississippi should be considered (Code 1930, sec. 3309; Code Ala. 1940, Tit. 41, secs. 50, 104).
4. COURTS.
An action against surety on bond of Alabama, sheriff for damages for sheriff's wrongful seizure in Alabama of plaintiff's truck load of liquor as contraband was not "transitory," but "local" to courts of Alabama, and hence case was properly dismissed by Mississippi court (Code 1930, sec. 3309; Code Ala. 1940, Tit. 41, secs. 50, 104).
APPEAL from circuit court of Warren county, HON. R.B. ANDERSON, Judge.
H.F. Case, of Quitman, and Culkin, Laughlin Thames, of Vicksburg, for appellant.
This is an appeal from a judgment of the circuit court of Warren County, Mississippi, dismissing this cause for want of jurisdiction and venue. The trial court overruled plaintiff's demurrer to defendant's special plea, challenging the jurisdiction and venue of the court below, and thereupon entered the judgment from which this appeal is prosecuted. The merits of the controversy are not in issue here.
The plaintiff alleged, in his declaration, that he is a resident citizen of Jasper County, Mississippi; that one Howard G. Davis was the duly elected, qualified and acting sheriff of Pickens County, Alabama; that the National Surety Corporation, a New York corporation, had become, under the laws of the State of Alabama, surety on the official bond of the said Davis; that the said Davis, while acting in his official capacity, committed a trespass on the plaintiff, and that by reason thereof was liable to, and should respond in damages to, the said plaintiff; that the said National Surety Corporation, a nonresident corporation, was doing business in Warren County, Mississippi.
The defendant did not plead to the merits of this cause, but filed a special plea challenging the right of the circuit court of Warren County, Mississippi, to proceed to adjudicate the merits of this cause, because the said court lacked jurisdiction and venue so to do. The said plea sets up: (1) That it is an unlawful interference with the police regulation of Alabama. (2) That the suit cannot be brought in the State of Mississippi. (3) That it is in violation of the public policy of the States of Alabama and Mississippi. (4) That the sheriff was not joined as a party defendant. (5) That the action is local, not transitory. (6) That to proceed would be contrary to the doctrine of forum non conveniens. (7) That Section 497, Code of 1930, denies the circuit court of Warren County, Mississippi, venue of this case. The plaintiff demurred to this special plea, raising thereby the question of the legal sufficiency of the matters and things set out in the said plea.
The question here presented is whether a citizen of Mississippi can invoke the aid of a Mississippi court, in a county in Mississippi wherein a nonresident corporation is found doing business, to enforce his right of recovery against the said nonresident corporation, arising out of a trespass committed upon him in an adjoining state, his right of recovery against the said nonresident corporation having been created by the law of the said adjoining state.
This is purely and simply a personal action by Mr. Barnett to recover damage for a trespass committed upon him in the State of Alabama, by the sheriff of Pickens County. Under the law of the State of Alabama, he had a right to sue the National Surety Corporation, the surety on the bond of Sheriff Davis, without joining the said sheriff as a defendant; and further, under the law of the State of Alabama, the said National Surety Corporation, by its own voluntary act in becoming surety on said bond, placed itself "in the shoes" of the said sheriff, and then and there became liable in its own name for the torts of the said sheriff.
A personal action to recover damages for a tort is not local, but transitory, and can as a general rule be maintained wherever the wrongdoer can be found.
Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; New Orleans, J. G.N.R. Co. v. Wallace, 50 Miss. 244; Leath v. Smith, 240 Ala. 639, 200 So. 623; Pullman Car Mfg. Corporation of Alabama v. Hamilton et al. (Ala.), 181 So. 244; Shell v. Pittman, 229 Ala. 380, 157 So. 205; National Surety Co. v. Plemmons, 214 Ala. 596, 108 So. 514; Tennessee Coal, Iron R. Co. v. George, 233 U.S. 354, 58 L.Ed. 997; Mississippi Code of 1930, Sec. 4166; 11 Am. Jur. 487, Sec. 3180.
The plaintiff had the right to proceed against this defendant, without joining the sheriff.
American Surety Co. of New York v. O'Hara (Ala.), 169 So. 229; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Bradford et al. v. State, 201 Ala. 170, 77 So. 696; State v. U.S.F. G. Co. (Ala.), 195 So. 426; American Bonding Co. v. New York Mexican Whiting Co. (Ala.), 66 So. 847; Alabama Code of 1940, Title 41, Sec. 50 (2612), (1500), (3087), (273), (179), (169), (130).
Section 497 of the Mississippi Code of 1930 is not applicable to the case at bar. The actions which this statute contemplates and govern are those arising ex contractu. Even a casual reading of this statute clearly and conclusively shows that this statute has no application to transitory actions arising ex delicto. That this is an action ex delicto, and should be governed by the law applicable thereto, under the law of Alabama, is not open to question. This is no action upon a policy of insurance, but is an action to recover damages for a tort committed on the plaintiff, in Alabama.
Shell v. Pittman et al. (Ala.), supra; Albright et al. v. Mills (Ala.), 5 So. 591.
Plaintiff's demand is not contrary to the laws and public policy of the states of Alabama and Mississippi.
See Floyd et al. v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395.
The principles of law announced in the case of Brower v. Watson, 146 Tenn. 626, 244 S.W. 362, 26 A.L.R. 991, are in direct conflict with the law of Mississippi and Alabama applicable here.
The so-called doctrine of forum non conveniens has no application whatever to the suit at bar. The sheriff is not a party. If his testimony is desired on a trial of the cause appellee might try taking his deposition if his official duties are so great that he cannot attend the trial.
Appellee argues that the case at bar is not a transitory action. In the absence of statute, actions against public officers for matters concerning their official acts are held to be transitory.
67 C.J. 77.
It is argued that this suit is in fact a suit on contract since the plaintiff has sued on the bond and has attached a copy thereof to the declaration. By the same logic the action of replevin, which is unquestionably an action ex delicto, can be proven an action ex contractu whenever the plaintiff attaches to his declaration as an exhibit a copy of a conditional sales contract or any other contract which furnished a basis for his claim to the right of possession of the automobile or whatever the subject of the replevin action is.
Butler Snow, of Jackson, and D.D. Patton, of Carrollton, Ala., for appellee.
The appellant states that the question here presented is as follows: "Can a citizen of Mississippi invoke the aid of a Mississippi court, in a county in Mississippi wherein a nonresident corporation is found doing business, to enforce his right of recovery against the said nonresident corporation, arising out of a trespass committed upon him in an adjoining state, his right of recovery against the said nonresident corporation having been created by the law of the said adjoining state?"
We respectfully submit that this is not the question presented in this case at all. The question as asserted by appellant is predicated upon and assumes that this is an ordinary transitory action for damages. The question as asserted by appellant as being the question presented here based on the predicate and assumption that this is an ordinary transitory action for damages would of necessity be answered in the affirmative. It is so well settled as to be axiomatic that jurisdiction of an ordinary transitory action for damages may be had in any jurisdiction where valid service of process may be had on the defendant.
The cases cited by the appellant, to-wit: Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; New Orleans J.G.N.R. Co. v. Wallace, 50 Miss. 244; Pullman Car Mfg. Corporation of Alabama v. Hamilton (Ala.), 181 So. 244; Tennessee Coal Iron Co. v. George, 233 U.S. 354, 58 L.Ed. 997; and the text, 11 Am. Jur. 487, but reannounce this well-recognized rule. Likewise, Section 4166 of the Mississippi Code of 1930 throws no light whatsoever upon the real question before the court in this case.
The real question involved is whether a suit such as this can be maintained in Warren County, Mississippi, against the surety on the official bond of a sheriff of a county in the State of Alabama given pursuant to and as required by the laws of the State of Alabama for a breach of said bond which occurred in the State of Alabama and within the jurisdiction of the sheriff, the principal therein. We say that this question should definitely be answered in the negative.
This is an unlawful interference with the police regulations of Alabama and the action is local, not transitory.
State for Use of Smith v. Smith, 156 Miss. 288, 125 So. 825; Interstate Life Accident Co. v. Pannell, 169 Miss. 50, 152 So. 635; Bank of Louisiana v. Williams, 46 Miss. 618; Crippen, Lawrence Co. v. Laighton, 69 N.H. 540, 44 A. 538, 46 L.R.A. 467; McLean v. State ex rel., (Fifth Circuit), 96 F.2d 741; Brower v. Watson, 146 Tenn. 626, 244 S.W. 362, 26 A.L.R. 991; Pickering v. Fisk, 6 Vt. 102; Judge of Probate for the County of Sullivan v. Hibbard, 44 Vt. 597; Southern Surety Co. v. Illinois Powder Manufacturing Co. (Tex.), 31 S.W.2d 314; Alabama Code of 1940, Title 41, Sec. 55; A.L.I. Restatement, Conflict of Laws, Ch. 12, par. 585, 587; 67 C.J. 25; 27 R.C.L. 786; 15 C.J.S. 948, Sec. 22.
The suit cannot be brought in Mississippi.
McArthur v. Maryland Casualty Co., 184 Miss. 663, 186 So. 305; Monsour v. Farris, 181 Miss. 803, 181 So. 326; Fireman's Fund Ins. Co. v. Cole, 169 Miss. 634, 152 So. 872; Judge of Probate for the County of Sullivan v. Hibbard, supra; Southern Surety Co. v.v. Illinois Powder Manufacturing Co., supra; Spratley v. L. A.R. Co., 77 Ark. 412; Schuglar County v. Mercer County, 9 Ill. 20; Walton v. Walton, 96 Tenn. 25; Thompson v. Cloyd, 110 Mont. 343; Hall v. Ocean Accident Co. (W. Va.), 93 S.E.2d 45; Alabama Code of 1940, Title 41, Secs. 50, 73, 74, 91, 104.
For this court to entertain jurisdiction of this cause is in violation of the public policy of the State of Mississippi and of the State of Alabama.
Holyfield v. State, to Use of Adams, 194 Miss. 91, 10 So.2d 841; State ex rel. Weems v. U.S.F. G. Co., 157 Miss. 740, 128 So. 503; Mississippi Code of 1930, Secs. 495, 3309; Alabama Code of 1940, Title 41, Sec. 104.
The sheriff should have been joined as a party defendant.
McArthur v. Maryland Casualty Co., supra; Kirkland v. Lowe, 33 Miss. 423; Mississippi Code of 1930, Sec. 3309; Alabama Code of 1940, Title 41, Secs. 50, 73, 74, 91, 104; A.L.I. Restatement, Conflict of Laws, Ch. 12, par. 588.
To proceed would be contrary to the doctrine of forum non conveniens.
Strickland v. Humble Oil Refining Co., 194 Miss. 194, 11 So.2d 820; Universal Adjustment Corporation v. Midland Bank, 281 Mass. 303, 184 N.E. 152, 87 A.L.R. 1407; 14 Am. Jur. 424.
Section 497 of the Mississippi Code of 1930 denies the circuit court of Warren County, Mississippi, venue of this cause.
Fireman's Fund Ins. Co. v. Cole, supra; Mississippi Code of 1930, Secs. 497, 5129, 5130.
This is an action in the circuit court of Warren County in this state by the appellant Barnett against the National Surety Corporation, surety on the official bond of H.G. Davis, Sheriff of Pickens County, Alabama, to recover damages for a tort committed by the Sheriff in Pickens County, in seizing as contraband certain property belonging to Barnett. The cause is here on the pleadings alone, therefore, the facts are unquestioned. The court below rendered final judgment in favor of the Surety Company dismissing the cause. From that judgment Barnett prosecutes this appeal.
The sole question in the case turns on whether or not the action is transitory or local to the courts of the State of Alabama. The trial court held, and we think rightly, that it was local. We reach that conclusion upon the following considerations: Barnett, a resident of Jasper County in this state, was engaged in this state in the unlawful sale of intoxicating liquors. He went to the State of Illinois and purchased a truck load of liquor which he was transporting through the State of Alabama, including Pickens County, in order to reach Jasper County, Mississippi. Davis was Sheriff of Pickens County. He was required by the laws of Alabama to execute an official bond as such sheriff in the penal sum of $5,000 payable to the state, conditioned upon the faithful performance of his duties as such officer; such bond to have a sufficient surety. Accordingly, he executed the bond here sued on with the National Surety Corporation as surety. While Barnett was passing through Pickens County, Alabama, Davis seized the truck and its contents, the truck being of the value of about $1,000 and the liquors of the value of about $5,600. The seizure was under the guise of enforcing an Alabama statute authorizing such action against contraband intoxicating liquors. Barnett fought the procedure through the courts of Alabama, including the Supreme Court of the state. That court held that Section 2 of Amendment 21 to the Federal Constitution did not authorize such seizure. That provision of the Constitution is in this language: "The transportation or importation into any state, territory or possession of the United States for delivery or use therein of intoxicating liquors in violation of the laws thereof is hereby prohibited." And the court held that, therefore, under the commerce clause of the Federal Constitution, Art. 1, Sec. 8, cl. 3, Barnett had the right to pass through the state without being molested by the Alabama authorities. Thereafter this suit was brought in this state in a county where the surety on Davis' official bond was doing business and subject to process. The action is against the Surety Company alone and is brought in the name of Barnett and not in the name of Mississippi or Alabama for the benefit of Barnett. Davis, when this suit was brought, was still a resident of Pickens County, Alabama, and the surety was subject to suit in that county.
The basis of the suit is contract, not tort. The suit is on the bond. It is true the breach of the bond consisted of a tort, but that does not make it an action of tort. State for Use of Smith v. Smith, 156 Miss. 288, 125 So. 825.
Going now to the question whether the action is transitory or local to the courts of Alabama, "if the cause of action is one that might have arisen anywhere, then it is transitory; but if it could only have arisen in one place, then it is local. No court will take cognizance of a matter which concerns the internal police regulations of another state." Wharton on Conflict of Laws, p. 711; Cooley on Torts, 471; 67 C.J. 25; 27 R.C.L. 786; Crippen v. Laighton, 69 N.H. 540, 541, 44 A. 538, 46 L.R.A. 467, 76 Am. St. Rep. 192; McLean v. State, 5 Cir., 96 F.2d 741, 119 A.L.R. 670; Brower v. Watson, 146 Tenn. 626, 244 S.W. 362, 26 A.L.R. 991; Pickering v. Fisk, 6 Vt. 102.
The Brower case, supra, was a suit in Tennessee against the surety on the bond of a Mississippi sheriff, the ground of the suit was that the sheriff had breached his bond by unlawfully shooting and wounding the plaintiff, which took place in Mississippi. The suit was brought in the name of Brower alone. The Supreme Court of Tennessee held that the courts of that state were without jurisdiction on two grounds: (1) That it ought to have been brought in the name of the state, as required by the statutes of this state; and (2) that the action was not transitory but local to the courts of Mississippi. The opinion discusses the latter question fully and ably.
In the Pickering case, supra, there was involved an action against the surety on the bond of a sheriff in New Hampshire. The Vermont court held that the action was not transitory and jurisdiction was confined to the courts of New Hampshire.
In considering this question the differences in the governing statutes of the two states with reference to who may sue and the procedure, should be taken into consideration in determining whether the action is transitory or local. Title 41, Sec. 104, of the Alabama Code of 1940, provides that a suit on any bond may be brought in the county of the residence of the principal or in which he resided at the time of the execution of the bond, but a suit by the state may be brought in Montgomery County. Title 41, Sec. 50, of that Code, provides that the official bond shall be for the use and benefit of any person injured by the wrongful act committed under color of office. The Alabama law authorizes suit on official bond against a surety alone, while our statute, Section 3309, Code of 1930, provides that remedy on a sheriff's bond shall be joint and several against all or any one or more of the obligors, but in all suits thereon against the surety or sureties the liability of the sheriff shall be first fixed, except when the sheriff is a party to the suit, or has died, or removed, or is not found. The fact of the inconvenience that would result from a trial in this state should be considered. The whole transaction took place in another state. The indications are that all of the witnesses are there, except the plaintiff. In Strickland v. Humble Oil Refining Co., 194 Miss. 194, 11 So.2d 820, although not in point on its facts, the court in that case declined jurisdiction on the ground of inconvenience and held that the parties should be relegated to another state.
Furthermore, if the full penalty of the bond should be recovered in an action in another state, the sheriff would be without a bond in his home state, unless the proper home authorities were notified of the recovery and required a new bond. The sheriff might be the only person in his state who knows of such recovery. If he is not the right sort of man he might yield to the temptation to go on without a bond.
The Alabama statutory regulations referred to are governmental and are so intimately connected with the rights of the parties that it cannot be said that this action was transitory.
Affirmed.