Burkett v. Globe Indemnity Co.

Full title: BURKETT v. GLOBE INDEMNITY CO

Court: Supreme Court of Mississippi, Division A

Date published: Jun 30, 1938

182 Miss. 423 (Miss. 1938)

181 So. 316

Opinion

No. 33102.

May 23, 1938. Suggestion of Error Overruled June 30, 1938.

1. AUTOMOBILES.

Where it was alleged that motor company through its agents had negligently left a steering arm adjustment tool attached to automobile so that steering gear became inoperative when steering arm came in contact with grease cups and that company concealed that fact from owner, company could not escape liability for injuries sustained by owner's guest because of failure of steering gear to function, on ground that company was an independent contractor whose repair work had been accepted by owner (Civ. Code La. arts. 2315-2317).

2. VENUE.

An action for damages to a person is transitory in its nature.

3. INSURANCE.

The Louisiana statute relating to liability insurance policies and authorizing right of direct action against insurer creates not only a procedural right, but also creates a right of action against insurer in favor of third parties not parties to contract, for whose ultimate benefit insurance may be said to have been procured (Act La. No. 55 of 1930).

4. COURTS.

When a statute of another state confers a right of action that is substantive, the Mississippi court will enforce it where it has machinery with which to do so.

5. COURTS.

Where Louisiana statute authorized party negligently injured by act of insured to bring action against liability insurer without making insured a party thereto, suit could be maintained in Mississippi against insurer for injuries sustained by Mississippi resident in Alabama while riding as guest in automobile which plunged into a ditch because of alleged negligence of insured's employees in repairing automobile in Louisiana, notwithstanding that policy stated that insurer should not be liable until liability had been established against insured (Act La. No. 55 of 1930).

6. COURTS.

That Louisiana statute giving an injured person a right of direct action against insurer under liability policy also provided that such action could be brought in parish where injury occurred or insured had his domicile did not render statute local, and did not preclude its application in suit in Mississippi by a Mississippi resident against a liability insurer for injuries allegedly resulting from negligence of insured's servants in Louisiana.

APPEAL from the circuit court of Harrison county; HON.W.A. WHITE, Judge.

White Morse and Jno. W. Savage, all of Gulfport, for appellant.

The lower court having held that the declaration stated a cause of action on liability, we will confine our argument to the right of appellant to sue the insurer under Act 55 of the Laws of Louisiana of 1930.

The decision in Rossville Com'l Alchol Corp. v. Dennis Sheen Trans. Co., 138 So. 183, holds the act constitutional.

The right of appellant, in this case, to sue depends upon his establishing negligence on the part of the principal. If that negligence is established, then the insurer is liable, if not, there is no liability. Certainly the insurance company can obtain as fair and impartial trial in the courts of our state as it can in the courts of Louisiana.

Rambin v. Southern Sales Co., 145 So. 46; Bougon v. Volunteers of America, 151 So. 797; Holland v. Owners Automobile Ins. Co. of New Orleans, 155 So. 780.

The Legislature of the State of Louisiana having determined and enacted a law giving an injured person a right of direct action against an insurer, and the courts of last resort of that state having held the act constitutional, let us inquire into the decisions of Mississippi to see if the enforcement of the right of action given by Act 55 is contrary to the public policy or good morals of the State of Mississippi.

In one of the earlier Mississippi cases, Chicago, St. Louis Mo. R.R. Co. v. Doyle, 60 Miss. 977, Mr. Chief Justice CAMPBELL, speaking for the court, said: "The right of action for damages for killing a husband given by the statute of Tennessee may be asserted in the courts of this state, because of the coincidence of the statutes of the two states on this point, and, independently of this, because a right of action created by the statute of another state, of a transitory nature, may be enforced here when it does not conflict with the public policy of this state to permit enforcement, and our statute is evidence that our policy is favorable to such rights of action instead of being inimical to them."

It will be noticed that this decision says "when a right of action is created by statute of a foreign state." Compare this with Act 55, which says a direct right of action is given against the insurer.

Travelers Ins. Co. v. Inman, 157 Miss. 810, 128 So. 877.

If in administering the workmen's compensation laws of the State of Louisiana, the court is bound by the construction given the laws by the Supreme Court of that State, why would not the court be bound by the construction given Act 55 by the Supreme Court of Louisiana? Can it be said that it is against public policy in one instance and not in another?

Flovd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395.

The demurrer of Globe Indemnity Company does not contend that the enforcement of the right of action in Mississippi is contrary to public policy or repugnant to good morals or would be injurious to citizens in Mississippi. Those seem to be the only grounds the courts have recognized in refusing to enforce rights of action under foreign statutes.

Floyd v. Cooperage Co., 156 Miss. 567, 126 So. 395; Hudson v. Georgia Casualty Co., 57 F.2d 757; Tennessee Coal Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997, L.R.A. 1916D 685; Clark v. Russell, 97 Fed. 900, 38 C.C.A. 541; Higgins v. Central R.R. Co., 155 Miss. 176, 31 Am. St. Rep. 544; Curtiss v. Campbell, 76 F.2d 84; Mosby v. Manhatten Oil Co., 52 Fed. 2d 364; Northern Pac. R. Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958.

By reference to the allegations in the declaration and amendment thereto, it will be seen that the Packard New Orleans, Inc., is charged with negligence as creating a dangerous instrumentality by leaving the alignment tool under the car in such position that it would likely cause injury not only to the driver, but to guests, pedestrians and users of the roads or highways. That the tool was easily removable and should have been removed; that Packard New Orleans, Inc., knew the tool was left under the car and concealed that fact from Clay Reeves, the owner. Those allegations are admitted by the demurrer.

City of Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454; Pate Auto Co. v. Elevator Co., 142 Miss. 419, 107 So. 552.

The court asks the question if the Louisiana law does not apply on this point? We admit it does. The court asks the further question if the Louisiana law conforms to the Mississippi law on this point? It does and we will give the court the benefit of the Louisiana statutes and decisions controlling on this point.

Article 2315 of Civil Code of Louisiana provides: "Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it . . ."

Article 2316 of Civil Code of Louisiana provides: "Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence or his want of skill."

Article 2317 of Civil Code of Louisiana provides: "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of things we have in our custody . . ."

There are the three articles of the Civil Code of Louisiana upon which all acts of negligence are based. They are very broad and cover every form of negligence.

Mahon v. Spence, 123 So. 349; Delvin v. Smith, 89 N.Y. 470, 42 Am. Rep. 311; Huset v. J.I. Case Threshing Machine Co., 120 F. 865, 57 C.C.A. 237, 61 A.L.R. 303.

One who sells or delivers an article which he knows to be imminently dangerous to life or limb of another, without notice of its qualities is liable to any person who suffers an injury therefrom, which might have reasonably been anticipated, whether there were any contractual relations between the parties or not.

Huset v. Threshing Machine Co., 120 F. 865; Pate Auto Co. v. Elevator Co., 142 Miss. 419.

In holding a manufacturer liable in the early case of McPherson v. Buick Motor Co., 217 N.Y. 382, L.R.A. 1916F 696, 111 N.E. 1050, Ann. Cas. 1916C 440, 13 N.C.C.A. 1029, Judge CARDOZA, speaking for the court, held the manufacturer's liability extended to third persons not in contractual relationship.

We are aware of some of the same holdings of this court with reference to liability of a manufacturer to a remote buyer. In the instant case though we are dealing with a defendant that held itself out as being competent to align wheels, and in aligning said wheels it committed a positive act of negligence by placing a tool under the car and leaving it there in a position where it would come in contact with the steering apparatus.

Baxter v. Ford Motor Co., 168 Wn. 456, 12 P.2d 409, 88 A.L.R. 521; A.L.I., Restatement of Law of Torts, pars. 388 and 389; 17 A.L.R. 683; Heckel v. Ford Motor Co., 128 A. 242, 39 A.L.R. 989.

The plaintiff in this case has to establish the acts of negligence complained of before the insurer can be held liable. We do not contend that we have any vested right in the policy of insurance as an insurance contract, except that we have the right to sue the insurance company under Act 55 of 1930 of Louisiana, produce our proof as in other negligence cases as to the negligence of Packard New Orleans, Inc. This suit is within the terms and limits of the policy. By the terms and conditions of the policy the insurance company is obligated to defend negligence cases; it is obligated to pay any damages caused by the negligence of the insured. It is authorized to appear and defend cases filed against the insured. In other words, insofar as suits for negligence are concerned, it is the alter ego of Packard New Orleans, Inc., within the limits of its policy, which in this case is $100,000.00.

Rossville Com'l. Alcohol Corp. v. Sheen, 138 So. 182; Holland v. Owners Automobile Ins. Co., 155 So. 780.

Leathers, Wallace Graves, of Gulfport, for appellee.

Under the procedural law in effect in the State of Mississippi, the misjoinder of inconsistent and antagonistic causes of action in a declaration in a suit at law is not permissible.

Town of Hazlehurst v. Cumberland T. T. Co., 83 Miss. 303, 35 So. 951; I.C.R.R. Co. v. Abrams, 84 Miss. 456, 36 So. 542.

An independent contractor is not liable for injuries to third persons, with whom he has no contractual relations, occurring after he has completed his work and has turned it over to the owner, or the person with whom he contracted, and the same has been accepted by the owner, or person with whom the contract was made, even though he was negligent in the performance of the contract and the injury to the third person results from his negligence in the performance of such contract.

City of Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469; Kilcrease v. Galtney Motor Co., 149 Miss. 703, 115 So. 193; Herring v. Planters' Lbr. Co., 169 Miss. 327, 163 So. 164; First Presbyterian Congregation v. Smith, 163 Pa. 561, 30 A. 279, 26 L.R.A. 504; Curtin v. Somerset, 140 Pa. 70, 21 A. 244, 12 L.R.A. 322; Casey v. Wrought Iron Bridge Co., 114 Mo. App. 47, 89 S.W. 330; Young v. Smith Kelly Co., 124 Ga. 475, 4 Ann. Cas. 226; Thornton v. Dow, 60 Wn. 622, 111 P. 899, 32 L.R.A. (N.S.) 968; Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457, 32 L.R.A. 837; Wharton on Negligence, sec. 368.

In cases of the nature and character of the one at bar, it is a principle of law, of universal application, that the courts of one state, in the enforcement of substantive legal rights afforded by the laws of another state, will give full faith and credit to the provisions of the law of the other state which creates the substantive right, but they will apply the remedy provided by the law of the forum and will enforce their own rules of procedure; therefore, the trial court and this Honorable Court must enforce the procedural and remedial laws in effect in this state in this case.

Interstate Life Accident Co. v. Pannell, 169 Miss. 50, 152 So. 635; Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395; Dunn Const. Co. v. Bourne, 172 Miss. 620, 159 So. 841; North Pacific R.R. Co. v. Babcock, 154 U.S. 190, 36 L.Ed. 958; 32 C.J., pages 876 and 977, sections 5 and 6.

The declaration shows affirmatively that the plaintiff, appellant here, is not a party nor a privy to the contract of insurance sued upon; and that he has no vested interest in the contract, nor any benefits provided by it that can constitute the basis of a valid cause of action in his favor against the appellee, the insurer in the contract of insurance.

Anderson v. Williams, 24 Miss. 684; Hathcock v. Owen, 44 Miss. 799; St. Paul Fire Marine Ins. Co. v. W.H. Daniel Auto Co., 121 Miss. 745, 83 So. 807; C.H. D.R.R. Co. v. Metropolitan Nat. Bank, 53 Ohio St. 117, 42 N.E. 700, 31 L.R.A. 653; Baxter v. Camp, 71 Conn. 245, 41 A. 803, 42 L.R.A. 514; Fid. Cas. Co. of N.Y. v. Martin, 163 Ky. 12, 173 S.W. 307, L.R.A. (N.S.) 1917D 924; 15 Encyc. Pl. Pr., pages 499 and 500; 13 C.J. 701, sec. 805.

The contract expressly provides that the appellee, as the insurer, will pay on behalf of the insured (Packard New Orleans, Inc.) all sums which the insured shall become obligated to pay by reason of the liability imposed upon it by law for damages sustained by any person caused by an accident arising out of the ownership and maintenance of an automobile dealer or repair shop.

The declaration shows affirmatively that the contingency the insured was insured against, "liability imposed upon him by law for damages," has not yet happened, and that a suit on the contract is prohibited by the provision therein that no action shall lie against the insurer until the amount of its obligation to pay shall have been finally determined either by judgment against the insured after actual trial, or by written agreement of the insured, the claimant and the insurer.

Fugate v. Hendricks, 31 Miss. 306; R.T. Clark Co. v. Miller, 154 Miss. 233, 122 So. 475; Travelers Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399; Reeves v. Globe Indemnity Co., 162 So. 724, 164 So. 642, 168 So. 488; Bougon v. Volunteers of America, 151 So. 797; Michel v. American Fire Cas. Co., 82 F.2d 583; 31 C.J., pages 437 and 438, secs. 32 and 33; 36 C.J., pages 1096 and 1097, sec. 75.

Under the remedial and procedural laws in effect in the State of Mississippi governing suits at law upon a contract such as is presented here, the plaintiff, appellant here, is not allowed to institute a suit directly against the defendant, the appellee here, in any event.

Anderson v. Williams, 24 Miss. 684; Hathcock v. Owen, 44 Miss. 799; St. Paul Fire Marine Ins. Co. v. W.H. Daniel Auto Co., 121 Miss. 745, 83 So. 807; C.H. D.R.R. Co. v. Metropolitan Nat. Bank, 53 Ohio St. 117, 42 N.E. 700, 31 L.R.A. 653; Baxter v. Camp, 71 Conn. 245, 41 A. 803, 42 L.R.A. 514; Fid. Cas. Co. of N.Y. v. Martin, 163 Ky. 12, 173 S.W. 307, L.R.A. (N.S.) 1917D 924; 15 Encyc. Pl. Pr., pages 499 and 500; 13 C.J. 701, sec. 805.

The question of law, in respect of the liability vel non of the Packard New Orleans, Inc., to the plaintiff, appellant here, upon the facts stated in the declaration, and the supplemental amendment thereto, which arises out of the appellee's demurrer to the declaration and the judgment of the trial court sustaining it, is controlled by Gordon v. Bates-Crumley Chevrolet Co., 158 So. 223, which was affirmed by the Louisiana Supreme Court, 162 So. 634, and the authorities upon which those courts rested their decisions, all of which are in harmony with the adjudications of this court on the question of the law involved, and with the decisions of other courts upon which this court has rested its decisions. In this connection, it is noteworthy that, in Louisiana, as well as in Mississippi, it is held that an automobile is not per se an intrinsically and inherently dangerous instrumentality.

Vicksburg Gas Co. v. Ferguson 140 Miss. 543, 106 So. 258; Ford Motor Co. v. Myers, 151 Miss. 73, 117 So. 362; Moore v. Jefferson Distilling Denaturing Co., 126 So. 691; Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 66 L.R.A. 924; McCaffrey v. Mossberg Granville Mfg. Co., 23 R.I. 381, 50 A. 651, 55 L.R.A. 822, 91 Am. St. Rep. 637; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 27 L.R.A. 583; National Sav. Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621; Losee v. Clute, 51 N.Y. 494, 10 Am. Rep. 638; Railway Co. v. Ballentine, 28 C.C.A. 572, 84 Fed. 935.

The authorities cited above make it at once clear that, under Louisiana law, in respect of the question of the liability vel non of the Packard New Orleans, Inc., for the damages alleged to have been sustained by the plaintiff as a proximate result of the defective workmanship on the automobile, after the Packard New Orleans, Inc., the contractor, turned the automobile and the work over to Clay Reeves, the owner, and it was accepted by him, the Packard New Orleans, Inc., incurred no further liability to third parties by reason of the condition of the work, but the responsibility for maintaining and using it in its defective condition was shifted to Clay Reeves, the owner, which is in accord with the general rule announced by all of the English and American decisions on the question.

Winterbottom v. Wright, 10 Mees. W. 109; Wharton's Law of Negligence (2 Ed.) secs. 24, 438, 439 and 440; Moore v. Jefferson Distilling Denaturing Co., 126 So. 691; Gordon v. Bates-Crumley Chevrolet Co., 162 So. 634.

Nowhere in the declaration is it stated that Reeves, the owner of the automobile, made any inspection whatever to determine the quality of the work done by the Packard New Orleans, Inc., the contractor, before he invited the plaintiff to ride in it with him, while he was operating it. Under the decisions of the Louisiana courts, as well as under the decisions of a great majority of the other American courts, including the decisions of this court, inspection of the work performed by the contractor, by the employer, is essential in a case like the one we have here.

Mahon v. Spence, 123 So. 349; Davlin v. Smith, 89 N.Y. 470, 42 Am. Rep. 311; Huset v. J.I. Case Threshing Mch. Co., 120 Fed. 865, 61 L.R.A. 303; Casey v. Wrought Iron Bridge Co., 114 Mo. App. 47, 89 S.W. 330; Howard v. Radden, 93 Conn. 604, 107 A. 509, 7 A.L.R. 198; Canal Constr. Co. v. Clem, 163 Ark. 416, 260 S.W. 442, 41 A.L.R. 4; Wood v. Sloan, 20 N.M. 127, 148 P. 507, L.R.A. 1915E 773.

The court will take judicial knowledge of the fact that the steering arms, which are component parts or members of the steering mechanism on a Packard automobile such as is described in the declaration, are located immediately behind the front axle and are in such positions that they, and their immediately related members, are capable of intelligent observation by a casual inspection.

Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Luckett v. La. Oil Corp., 171 Miss. 570, 158 So. 199.

No rule of law is better settled than that fraud is never inferred and that it cannot be charged in general terms; and that the particular facts that constitute the alleged fraud, upon which an action for deceit may be maintained, must be set out positively, if known to the complaining party, or, if not known to him, on information and belief.

McInnis v. Wiscasset Mills, 78 Miss. 52, 28 So. 725; Masters v. Cleveland, 162 So. 51; Great Eastern Oil Ref. Co. v. Bullock, 91 So. 680; E.J. Deas Co., Inc., v. Texas Co., 129 So. 678.

It is well settled law that a party alleged to have been deceived by the fraud of another must have been so situated as to have had no means of detecting the deceit.

Slaughter v. Gerson, 13 Wall. (U.S.) 379, 20 L.Ed. 627; Farnsworth v. Duffner, 142 U.S. 43, 35 L.Ed. 931; 2 Pomeroy's Equity Jurisprudence, sec. 892.

The substantive rights of the plaintiff against the Packard New Orleans, Inc., the contractor, are found in the provisions of Articles 2315, 2316 and 2317 of the Civil Code of Louisiana. These codal provisions afford the plaintiff the identical substantive legal rights against the Packard New Orleans, if his suit had been instituted in a Louisiana court, that is afforded him by the common law of negligence in effect in this state. However, no service of process was had upon the defendant, Packard New Orleans, Inc., in this case.

The Louisiana Code of Practice is silent upon the subject of joinder of parties. The rules of practice and procedure in respect of the joinder of proper parties to a suit, in effect in the state of Louisiana, are taken from the common law, as it has been announced in and applied by the adjudications by the courts of last resort of that state, and Act 55 of 1930.

Gill v. City of Lake Charles, 43 So. 897; Courtney v. L.R. N. Co., 59 So. 994; Dubuisson v. Long, 143 So. 494; Officer v. American Eagle Fire Ins. Co., 139 So. 719.

It is clear that Act No. 55 of the Laws of Louisiana, 1930, relied on here by the plaintiff, creates an innovation upon the common law rules of practice and procedure in respect of the joinder of parties in law actions; and that it is exactly what the courts of last resort of the State of Louisianan have held it to be, namely: "a remedial and procedural statute, conferring no substantive rights."

Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., 139 So. 183; Gager v. Teche Transfer Co., 143 So. 62; Rambin v. Southern Sales Co., 145 So. 46; Bougon v. Volunteers of America, 151 So. 797; Tuck v. Harmon, 151 So. 803; Graham v. American Employers' Ins. Co., 171 So. 471; Hudson v. Georgia Casualty Co., 57 F.2d 757.

Argued orally by R.A. Wallace for appellee.

McGowen, J., delivered the opinion of the court.

Appellant, J. Robert Burkett, sued the Globe Indemnity Company and Packard New Orleans, Inc., for damages for personal injuries sustained by him in an automobile wreck. A demurrer to the amended declaration was sustained. The appellant declined to amend further, the cause was dismissed, and an appeal is prosecuted here from that judgment.

The declaration shows that the Globe Indemnity Company was subject to process in the State of Mississippi, but that Packard New Orleans, Inc., was not subject thereto. It alleges that appellant is a citizen of Harrison county, Miss., and on account of his poverty was unable to go to Louisiana to prosecute a suit. Appellant alleges that the Packard New Orleans, Inc., was engaged in business in New Orleans, La., in selling and repairing Packard automobiles, and that on March 26, 1937, the company repaired the steering apparatus and aligned the wheels on an automobile belonging to Clay Reeves and delivered it to him telling him that the steering apparatus was in perfect condition. The declaration averred that the steering apparatus was not in a reasonably safe condition for the reason that the repairman "negligently turned the grease cups on said steering arms from their original position in the back of said arms to the front thereof, and negligently left a steering arm adjustment tool attached to a place under said automobile designed for that purpose, so that in steering said automobile the said steering arm came in contact with the grease cups and negligently caused the injuries to plaintiff;" when the steering arm came in contact with the grease cups the steering gear became inoperative. The amended declaration alleged that Packard New Orleans, Inc., "by leaving said steering adjustment tool under said car created a dangerous instrumentality not only to persons using said car but persons riding in said car and pedestrians alike; that said Packard New Orleans, Inc., through its agents, knowingly, wilfully and negligently left said tool under said car and concealed the fact that said tool was under said car from the said Clay Reeves, the owner of the said car, and plaintiff avers that the said Clay Reeves, the owner of the said car, did not know that said tool was left under said car, and did not know that Packard New Orleans, Inc., had created a dangerous instrumentality until after the said car had been wrecked on account of the said tool being left under said car as hereinabove described." Appellant further averred that due to the tool coming in contact with the grease cups the car became unmanageable while he was riding as the guest of Clay Reeves, in Alabama, plunged into a ditch and seriously injured him, for which he brought suit. The declaration further stated that Packard New Orleans, Inc., had in force at the time of the accident, and at the time of the repair of the automobile, a policy of insurance in the sum of $100,000, indemnifying the insured against injuries sustained by persons on account of the negligence of its employees, and that the said Globe Indemnity Company, the insurer, was liable directly in an action for damages sustained by appellant as alleged. This liability was asserted to be created in appellant's favor by Act No. 55, Louisiana Laws of 1930, which is as follows:

"Section 1. That, after the passage of this act, it shall be illegal for any company to issue any policy against liability unless it contains a provision to the effect that the insolvency or bankruptcy of the assured shall not release the company from the payment of damages for injury sustained or loss occasioned during the life of the policy, and any judgment which may be rendered against the assured, for which the insurer is liable, which shall have become executory, shall be deemed prima facie evidence of the insolvency of the assured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person or his or her heirs against the insurer company. Provided further that the injured person or his or her heirs, at their option, shall have a right of direct action against the insurer company within the terms, and limits of the policy, in the parish where the accident or injury occurred, or in the parish where the assured has his domicile, and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido.

"Provided that nothing contained in this act shall be construed to affect the provisions of the policy contract if the same are not in violation of the laws of this State.

"It being the intent of this act that any action brought hereunder shall be subject to all of the lawful conditions of the policy contract and the defenses which could be urged by the insurer to a direct action brought by the insured; provided the term and conditions of such policy contract are not in violation of the laws of this State."

The insurance policy, exhibited with the declaration, disclosed that the insurer stipulated in the policy that it was not to be liable to a third person until liability had been established against the insured in the manner set forth therein.

The demurrer may be considered as presenting two points for decision: (1) The declaration shows that Packard New Orleans, Inc., was an independent contractor employed to repair the car for Clay Reeves, and that having so repaired it and delivered the same to the owner, who accepted it, there is no liability of the independent contractor to a third person on account of the negligence alleged; (2) that Act No. 55, Louisiana Laws of 1930, is remedial and procedural and confers no substantive rights upon the plaintiff under the conditions set forth in the declaration, and therefore an action thereunder is not cognizable by the courts of Mississippi.

From the statements of the declaration it is to be observed that it charges the Packard New Orleans, Inc., with highly culpable negligence and a breach of duty to the appellant and others riding in the car or likely to come in contact with it as pedestrians. It well-nigh charges the crime of manslaughter.

The laws of Louisiana as to the substantive rights of appellant are applicable here. On the subject of liability for negligence, the applicable portion of article 2315, Louisiana Civil Code of 1932, is, "every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it." Article 2316 provides: "Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill." Article 2317 provides: "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody." The above statutes are the basis for all actions of negligence in Louisiana.

In our own state the general rule is found in the case of City of Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.), 469, where the court held that, after a contractor has turned over the work and it has been accepted by the proprietor, the contractor incurs no further liability to third parties by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in a defective condition, is shifted to the proprietor. However, in that case the court recognized the generally accepted exception to the rule, which is as follows (page 455): "Before the city can be held liable to complainants, it must be shown that there was some element of deceit, or concealment of the dangerous instrumentality. It is not sufficient to allege negligent construction. It must also be alleged that there was a concealment of this dangerous condition when the building was turned over to its owners and accepted by them. We think the bill of complaint may reasonably be construed to mean that the negligent construction and poor material used in the building was obvious, and that the owner accepted the work without demur; and, if this be true, it follows that the owner knew of the defect when it accepted the building. It must be shown that the owner was unaware of the danger, and it must be shown that the city, or its agent, concealed the defective material and workmanship. For a collation of the authorities, we cite Thornton v. Dow, 60 Wn. 622, 111 P. 899, 32 L.R.A. (N.S.) 968, and notes; O'Brien v. American Bridge Co., 110 Minn. 364, 125 N.W. 1012, 32 L.R.A. (N.S.) 980, 136 Am. St. Rep. 503." This exception to the general rule was also recognized in Pate Auto Co. v. Elevator Co., 142 Miss. 419, 107 So. 552.

The case of Mahon v. Spence, 11 La. App. 604, 123 So. 349, appears to us to fully recognize the same rule that has been approved by our own court, and if the independent contractor is a repairman the same rule of law applies to him. See 2 Rest. Torts, sec. 388, comment C.

The numerous cases cited by the appellee to sustain the demurrer upon this ground point toward the general rule about which there is no contention in the case at bar. For instance, in the case of Gordon v. Bates-Crumley Chevrolet Co., La. App., 158 So. 223, the facts are clearly distinguishable from the facts in the case at bar. The court in effect stated there that there was no evidence that the repairer concealed the facts from the owner of the car. This case made by the declaration is not for breach of contract, but is a breach of duty on the part of the repairer.

It may be said that an automobile is not inherently dangerous but the repair made on this automobile, and the condition in which it was alleged to have been knowingly delivered to the owner, with a concealment from him of such facts, rendered the automobile highly dangerous from the moment it was thus delivered to all who might come in contact with it while it was in motion, whether as a guest riding therein or a pedestrian. See MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440; Hudson v. Moonier, 8 Cir., 94 F.2d 132.

On the second ground of the demurrer, we think this case is so clearly analogous to the cases of Travelers' Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399, 128 So. 877, and Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395, that we could content ourselves by saying that the case at bar is controlled thereby. By clear language Act No. 55, Louisiana Laws of 1930, relieves a party, who is injured negligently by the act of the insured within the coverage of the insurance policy, of the necessity of bringing an action against the insured, but confers upon such injured party the right of action against such insurer without making the insured a party thereto. This statute has been construed many times by the appellate courts of the state of Louisiana. In the case of Rambin v. Southern Sales Co., La. App., 145 So. 46, the court held that the injured person had the right of direct action either against the insurer alone or against both the insured and the insurer, and that the insurance company could not insert in the contract terms and limits that would contravene the right of the injured party to bring a direct action. Also see Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., 18 La. 725, 138 So. 183; Bougon v. Volunteers of America et al., La. App., 151 So. 797; Holland v. Owners' Automobile Ins. Co. of New Orleans, La. App., 155 So. 780.

An action for damages to a person is transitory in its nature. Act No. 55, Louisiana Laws of 1930, is the controlling law of Louisiana invoked here and confers more than a procedural right; it creates a right of action against the insurer in favor of third parties not a party to the contract, for whose ultimate benefit the contract of insurance may be said to have been procured by the insured. When a statute of another state confers a right of action that is substantive this court will enforce it where it has the machinery with which to do so. In Travelers' Ins. Co. v. Inman, supra, we permitted a third person to maintain the action on a similar statute to the one here under consideration, conferring upon a third party the right of direct action against the insurer for the liability of the insured. Likewise, we so held in Floyd v. Vicksburg Cooperage Co., supra.

But it seems to us that the case is not even attended with difficulty when we consider the decision of our court in the case of Chicago, St. L. N.O.R.R. Co. v. Doyle, 60 Miss. 977. There we held that the right of action for the negligent death of a person given by a Tennessee statute might be asserted in the Mississippi courts, because of the coincidence of that statute with ours, and also because a right of action of a transitory nature created by the statute of another state may be enforced here if not in conflict with the public policy of this state. See Tennessee Coal, Iron R.R. Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997, L.R.A. 1916D, 685.

A case in point is Kertson v. Mary Johnson, Adm'x, 185 Minn. 591, 242 N.W. 329, 85 A.L.R. 1.

As to the public policy of this state we need only refer to Floyd v. Vicksburg Cooperage Co., and Travelers' Ins. Co. v. Inman, supra, where that question is set at rest. It might be added that our statutes permit a direct action against the surety company which makes the bond of a contractor by direct suit against such surety company upon default, without the necessity of first procuring a judgment against the principal of the bond. Nor can we lend ear to the argument of counsel that the statute is local because the venue in that state is set forth by the statute. In the light of our decisions and what we consider to be the weight of authority, which we have followed in the three cases relied on, we cannot close the doors of our courts to one of our own citizens.

The demurrer in this case should have been overruled.

Reversed and remanded.