Summary
In McArthur v. Maryland Casualty Company, 184 Miss. 663, 186 So. 305 (1939), this Court has held that the Louisiana Direct Action Statute is procedural and not substantive law.
Summary of this case from McNeal v. Administrator of Estate of McNealOpinion
No. 33441.
February 6, 1939.
1. COURTS.
The construction given a statute by courts of state whose Legislature enacted it will be adopted by Mississippi courts.
2. COURTS.
An insurer under contract of liability could not be sued in Mississippi for damages arising from a tort committed by assured in absence of a statute granting right to sue insurer direct and in absence of privity of contract between injured person and insurer.
3. COURTS.
Though the court of the forum may decide for itself whether a statute of another state is substantive or procedural in absence of construction of statute by courts of other state, construction given statute by courts of state whose Legislature enacted it will be adopted by courts of other jurisdictions.
4. COURTS.
Decisions of Louisiana Court of Appeal holding that Louisiana statute giving an injured person a right of direct action against insurer under liability policy is procedural and remedial would be followed by Mississippi Supreme Court, and the statute would be given no extraterritorial effect (Act La. No. 55 of 1930, amending Act La. No. 253 of 1918; Const. La. 1921, art. 7, sec. 29).
SMITH, C.J., and McGOWEN, J., dissenting.
APPEAL from the chancery court of Harrison county; HON. D.M. RUSSELL, Chancellor.
Carl Marshall, of Gulfport, for appellant.
The learned chancellor having entered his decree sustaining the appellee's demurrers and finally dismissing the appellant's bill of complaint on the 16th day of February, 1938, on May 23, 1938, when it was too late to reopen the cause in the nisi prius court, save by voluntary agreement, the Supreme Court determined the precise point involved in this appeal adversely to the appellee's position and contention, in the case of Burkett v. Globe Indemnity Co., 181 So. 316.
The latter case being squarely in point, and on all fours with the case at bar, the decision therein rendered is conclusively determinative of the issues presented by this appeal.
The holding in the case of Burkett v. Globe Indemnity Company is so sound, and so closely accords with the principles of our jurisprudence, that it is scarcely conceivable that the distortions of bias may go so far as to take issue with it. None of the justices of this court dissented from the holding; and the case was considered with exceeding thoroughness and learning.
As the law has been established definitely in the appellant's favor, he most earnestly requests that the judgment appealed from be reversed, and the cause remanded for a trial upon its merits.
In its attack upon the appellant's suit, as usually occurs the appellee sets its position forth in numerous grounds, and from various angles; but we believe that the entire gist of the matter submitted to this court for decision of law on the pleadings may be stated in the inquiry, whether the cause of action, and the right of direct action against the appellee, accorded the appellant by the laws of Louisiana, and the facts alleged in his bill of complaint, will be recognized, conserved, and enforced civilly by the courts of Mississippi in favor of one of its citizens.
The appellee maintains here that the Louisiana statute of 1930 cannot be given extraterritorial effect, for the asserted reason that its provisions afford the appellant no substantive right, and create no primary or independent obligation of the appellee to the appellant; that it does not give the appellant a right, or cause of action against the appellee, independent of any claim that he may have against the Gulf Coast Oil Company; in short, that the statute is purely "remedial;" that it is asserted that a "remedial" statute cannot be given extraterritorial effect. The vice of the position lies in the fact that it overlooks the obvious circumstance a "remedial" law is one that provides a remedy; and in this instance the law creates at one time the substantive right and the remedy to enforce it. The substantive right, i.e., this right or cause of action directly or primarily against the respondent, is enforceable extraterritorially.
This court has repeatedly held that the statutory causes of action in Louisiana are enforceable in Mississippi; all causes of action being based on statute in Louisiana, in which there is no general, or common law.
Lloyd v. Vicksburg Cooperage Co., 126 So. 396.
Directly in point and flatly negativing the soundness of the appellee's demurrer here is the holding of the Mississippi authority of Travelers' Ins. Co. v. Inman, 157 Miss. 810, 128 So. 877, in which this court upheld the right of an employee, injured in Louisiana by negligence of his employer, to sue the employer's insurer directly in Mississippi, without joining the employer as a defendant, or having previously obtained judgment against the employer, under a Louisiana statute exactly similar in effect to the Louisiana statute upon which the appellant's suit at bar is based, as it is phrased, and as it is construed by the Louisiana courts. The court will observe that in the Inman case it first rendered a directly opposite decision, but reversed its holding on a suggestion of error. It would seem that this authority is sufficient to preclude further discussion of the point raised in the appellee's demurrer. It will be noted that in the Inman case the same argument was urged by the appellant unsuccessfully.
Was a cause of action in favor of appellant created by the provisions of the act of the Louisiana Legislature of 1930? The language of the statute itself says so expressly, providing that the appellant (the injured person) "shall have a right of action direct against the insurer company." No clearer phraseology could have been employed to create a right, or cause of action; "right of action" and "cause of action" being synonymous, or convertible terms in the vernacular of the law.
1 C.J. 937; Lloyd v. Vicksburg Cooperage Co., 126 So. 396.
That the act in question is regarded and construed by the Louisiana courts as having created a direct and primary obligation of the insurer to the party injured, wholly independent of any claim of the party injured against the assured, and wholly disconnected from any relationship between the party injured and the assured, is made perfectly manifest by the decision, and the reasoning of the opinion, of the Louisiana court, never yet overruled, in the case of Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., 138 So. 183.
In the case of Ruiz v. Clancy, 162 So. 734, the Supreme Court of Louisiana held that when the policy in question was written in the State of Louisiana, and therefore governed by the laws of that state, a provision in the policy negativing the existence of the insurer's direct primary obligation to the injured party will be ignored by the courts; as the policy must be held subservient to the provisions of the Louisiana Act of 1930, which in effect writes into the policy the provisions for direct responsibility of the insurer.
Holland v. Owners' Automobile Ins. Co., 155 So. 780; Bougon v. Volunteers of America, 151 So. 797; Rambin v. Southern Sales Co., Inc., 145 So. 46.
The legal situation thus created is not novel to us. We have a similar provision of law creating direct responsibility of the surety on builders' bonds to materialmen and mechanics. It would be different if the contract of insurance were not executed in the State of Louisiana, but in a state the laws of which do not write into the policy a direct substantive cause of action against the insurer by the injured party. In such case, even if the accident that injured the party occurred in Louisiana, and the action for damages were instituted there, the policy provisions would control a determination of the question of whether the insurer were directly liable to the injured party, independently of any claim that he might have against the assured.
Stephenson v. List Laundry Dry Cleaning, Inc., 162 So. 19; Washington National Ins. Co. v. McLemore, 163 So. 773.
The Louisiana statute in question creates the substantive right, or cause of action, simultaneously and synonymously with the creation of the remedy, which is necessarily embodied in the right. The right, or cause of action thus created against the insurer is substantive; and being transitory, it is enforceable in the tribunals of states other than Louisiana, as was held by this court in the Inman case, supra. This is the exact situation created by the Mississippi Death-By-Wrongful-Act statute, and every other statute of this nature conceivable.
We respectfully ask this Honorable Court not to recede from the position so recently and advisedly taken in the controlling authority of Burkett v. Globe Indemnity Company; to re-affirm that decision, that is so thoroughly in analogy with other holdings of this court; and to remand this cause for a trial on its merits, that a citizen of Mississippi may receive in a court of his state a hearing of his cause on its merits.
Correctly considered, the appellant's claim against the appellee insurance company, which the appellant here asks to have recognized by the courts of his state, is based upon the contract of insurance embodied in the policy, the terms of which are fixed definitely by the laws of the State of Louisiana, where it was executed. It is submitted most earnestly that no other view of the situation is consonant with logic.
By the terms of the policy as fixed by the laws of the state in which it is written, the person injured is constituted ipso facto with a vested contractual right, enforceable by direct legal action, as a party to the contract, upon his being injured by a negligent, or tortious operation of the insured automobile.
Holland v. Owners Automobile Ins. Co., 155 So. 780; Stephenson v. List Laundry Dry Cleaners, Inc., 162 So. 19; Lowery v. Zorn, 157 So. 831.
We believe that the substance of these decisions make it perfectly clear that the Louisiana courts regard the case as being on the policy (no other view can find any justification in reason) whose terms, coerced by the statute, accord the injured person a direct right of action, arising from contract, against the insurer of the negligent automobile operator. Being the only view consonant with reason, it is that announced by the courts of other jurisdictions with similar statutes.
Riding v. Travelers' Ins. Co., 48 R.I. 433, 138 A. 186; Lowery v. Zorn, 157 So. 831; Caderre v. Travelers' Ins. Co., 48 R.I. 152, 136 A. 305, 54 A.L.R. 512.
The fact that the injured person sues the insurer on the policy under these statutes to recover unliquidated damages for personal injury caused by the negligence of some other person does not affect the character of the litigation as being purely ex contractu; it being against a party defendant who can be liable only in contract. A familiar illustration of this is the instance of the entirely ex contractu action against the surety on the official bond of a sheriff to recover unliquidated damages for personal injuries sustained by the plaintiff from an unjustifiable assault committed by the sheriff in his official capacity. There, too, the liability of the surety depends altogether upon a tort of the sheriff; and the action proceeds, and the trial is had, almost entirely as one of tort, with tort action characteristics. But the action against the surety necessarily is ex contractu on the bond, whose terms are governed by the laws of the state.
The principal's tort is only the condition to the plaintiff's right of recovery on the bond. It would be perfectly competent and constitutional for our legislature to enact a statute permitting the injured person to recover in a direct action on the bond, rather than as usee.
If such a statute should be enacted it could be given effect retroactively, as against bonds previously executed; for, in view of the statutory system of recovery existing when the bond was written, the surety would be deprived of no substantial right by an application of the statute.
In this sense only do the Louisiana authorities refer to the statute before the court as being remedial or procedural. The decisions all recognize and enforce the injured person's substantive right to recover on the policy in an independent action against the insurer. There is nothing that is purely procedural about that. Beyond question it is the enforcement of a vested, substantial right of recovery on a contract whose provisions are dictated by the laws of the place of its celebration.
There is no reason why this citizen of our state cannot sue upon this contract of insurance in Mississippi, if he may sue upon it directly in the State of Louisiana, as was held by the court in Burkett v. Globe Indemnity Co., 181 So. 316; Lloyd v. Vicksburg Cooperage Co., 126 So. 396; and Travelers' Ins. Co. v. Inman, 128 So. 877. These decisions are unquestionably sound, and so recognized to be universally now; and there is no distinction between the facts and principles of the case at bar, and those involved in these previous authorities. Yet, as an inspection of the records will bear us out, every argument advanced by the appellee here was made unsuccessfully in these controlling decisions.
Leathers, Wallace Greaves, of Gulfport, for appellee.
The facts stated in the bill of complaint assert an action ex delicto in favor of the complainant, appellant here, and against the Gulf Coast Oil Company, of New Orleans, Louisiana, who is not joined in the suit as a defendant, for damages alleged to have been sustained by the complainant as the proximate result of the negligence of a servant of the alleged tort-feasor, arising under the negligence laws in effect in the state of Louisiana.
Metropolitan Casualty Ins. Co. of N.Y. v. Bowdon, 159 So. 394; Reeves v. Globe Indemnity Co. of N.Y., 162 So. 724, 164 So. 642; Louisiana Revised Civil Code, Articles 2315, 2316, 2317 and 2320.
That part of Act No. 55, Louisiana Laws 1930, providing: "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 (the insurer of an insured tort-feasor) within the terms and limits of the policy, (the contract of liability insurance between the insurer and the tort-feasor) . . . 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," creates no legal liability on the part of the insurer for damages sustained by the injured person as the proximate result of a wrongful act on the part of the insured; but it does create a new remedy for the adjudication and satisfaction of damages arising out of legal liability created by the provisions of Articles 2315, 2316, 2317 and 2320 of the Revised Civil Code of Louisiana, in addition to those remedies that existed at the time of the adoption of the Act, which operates concurrently with other remedies provided by the act and the remedies existing by virtue of other provisions of Louisiana law.
Rambin v. Southern Sales Co., 145 So. 46; Reeves v. Globe Indemnity Co. of N.Y., 162 So. 724; Lowery v. Zorn, 168 So. 297; Morrell v. LaLonde, 114 A. 178; Stone v. Inter-State Exchange, 229 N.W. 26; Morgan v. Hunt, 220 N.W. 224; Bergstein v. Popkin, 233 N.W. 572; Sweitzer v. Fox, 275 N.W. 546.
The courts of last resort of the state of Louisiana have uniformly held the provisions of Act No. 55, Louisiana Laws 1930, which is sought to be invoked here, to be purely remedial and procedural; therefore, the provisions of the statute have no extraterritorial force and effect.
Rossville Commercial Alcohol Co. v. Dennis Sheen Transfer Co., 138 So. 183; Gager v. Teche Transfer Co., 143 So. 62; Robbins v. Short, 165 So. 512; Devine v. National Life Acc. Ins. Co., 166 So. 522; Graham v. American Employers' Ins. Co., 171 So. 471.
By the provisions of the Constitution of the State of Louisiana, the courts of appeal of that state are vested with the authority to adjudicate finally the construction of Act No. 55, Louisiana Laws 1930. And those courts have uniformly held that the provisions of the Act create no substantive rights, but are purely remedial and procedural.
Adams v. N.O.T. M.R.R. Co., 115 So. 128; Metropolitan Casualty Ins. Co. of N.Y. v. Bowdon, 159 So. 394; Reeves v. Globe Indemnity Co., 162 So. 724; Louisiana Constitution, Art. 7, secs. 10 and 29; Rossville Commercial Alcohol Co. v. Dennis Sheen Transfer Co., 138 So. 183; Gager v. Teche Transfer Co., 143 So. 62; Robbins v. Short, 165 So. 512; Devine v. National Life Acc. Ins. Co., 166 So. 522; Graham v. American Employers' Ins. Co., 171 So. 471.
Other states have statutes similar to Act No. 55, Louisiana Laws 1930, and the courts of last resort of those states have uniformly construed the provisions of such statutes to be purely remedial and procedural.
Morrell v. LaLonde, 114 A. 178; Stone v. Inter-State Exchange, 229 N.W. 26.
The adoption of Act No. 55, Louisiana Laws 1930, worked no change in the nature, right and merit of a tort action arising under the provisions of Articles 2315, 2316, 2317 and 2320 of the Revised Civil Code of Louisiana; it only affects the question of who shall be parties to a tort action arising out of those articles of the Civil Code (the negligence laws), and relates solely to the remedy for the enforcement of the demand and does not relate to the nature, right and merit of the demand itself.
Graham v. American Emp. Ins. Co., 171 So. 471; Metropolitan Cas. Ins. Co. v. Bowdon, 159 So. 394; Reeves v. Globe Indemnity Co., 162 So. 724, 164 So. 642; J.B. Kirkland Co. v. Lowe Pattison Co., 33 Miss. 423.
Mississippi courts are under the strict legal obligation to adopt and follow the construction placed upon the provisions of Act No. 55, Louisiana Laws 1930, by the decisions of the courts of last resort of that state, when its provisions are sought to be invoked in a judicial proceeding in the State of Mississippi.
McIntyre v. Ingraham, 35 Miss. 25; Botanico-Medical College v. Atchinson, 41 Miss. 188; Vicksburg S. P.R. Co. v. Porterfield, 130 Miss. 585, 60 So. 652; Travelers' Ins. Co. v. Inman 157 Miss. 810, 128 So. 877; Green v. Neal, 8 Pet. 291, 8 L.Ed. 402; Town of Scipio v. Wright, 101 U.S. 677, 25 L.Ed. 1037; Louisville N.O. T.R. Co. v. State of Miss., 133 U.S. 587, 33 L.Ed. 784; McElvaine v. Bruch, 142 U.S. 155, 35 L.Ed. 971; Turner v. Wilkes County, 173 U.S. 461, 43 L.Ed. 768; Iowa Life Ins. Co. v. Lewis, 187 U.S. 335, 47 L.Ed. 204; Atl. Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 58 L.Ed. 721; Willoughby v. City of Chicago, 235 U.S. 45, 59 L.Ed. 123; St. L. K.C. Land Co. v. Kansas City, 241 U.S. 419, 60 L.Ed. 1072; First National Bank v. Weld County, 264 U.S. 450, 68 L.Ed. 784; Louisville Gas Electric Co. v. Coleman, 277 U.S. 32, 72 L.Ed. 770; Bandini Petroleum Co. v. Superior Court of California, 284 U.S. 8, 76 L.Ed. 136.
While all that relates to the substantive rights of the appellant is governed by the lex loci delicti, all matters relating to the remedy, including the question of proper and necessary parties to the action, are governed by the lex fori; therefore, the courts of this state, in this action, must apply their own remedial laws, and must enforce their own rules of practice and procedure, including the question of the parties to the suit.
J.B. Kirkland Co. v. Lowe, Pattison Co., 35 Miss. 423; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418; Interstate Life Accident Co. v. Pannell, 169 Miss. 50, 152 So. 635; Dunn Constr. Co. v. Bourne, 172 Miss. 620, 159 So. 841; Coral Gables v. Christopher, 189 A. 147, 109 A.L.R. 474, and page 485, notes; Bank of U.S. v. Donnally, 33 U.S. (8 Pet.), 361, 8 L.Ed. 974; Wilcox v. Hunt, 49 U.S. (13 Pet.), 378, 10 L.Ed. 209; LeRoy v. Beard, 49 U.S. (8 How.), 451, 12 L.Ed. 1151; Pritchard Exrx. v. Norton, 106 U.S. 124, 27 L.Ed. 104; Hdw. Dealers' Mutual Fire Ins. Co. v. Glidden Co., 284 U.S. 151, 76 L.Ed. 214; Story, Conflict of Laws, secs. 242, 263, 556, 558.
The facts stated in the bill of complaint are insufficient in law to support a cause of action against the defendant, appellee here, for the reason that no tort liability is stated against the defendant on the tort phase of the bill, and for the further reason that, upon the facts stated, there exists no exigible contractual liability in favor of the complainant, appellant here.
Brown v. Bank, 31 Miss. 454; Brooks v. Kelly, 63 Miss. 616; Meek v. Humphries Co., 133 Miss. 386, 97 So. 674; Eckford v. Hogan, 44 Miss. 398; Georgia Pac. Ry. Co. v. Baird, 76 Miss. 523, 24 So. 195; St. Paul Fire Marine Ins. Co. v. W.H. Daniel Auto Co., 121 Miss. 745, 83 So. 807; Martin v. Yazoo Delta Mtg. Co., 150 Miss. 138, 116 So. 542; Griffith's Chancery Practice, sec. 169.
As construed by the courts of last resort of the state of Louisiana, the provisions of Act No. 55, Louisiana Laws 1930, invoked here, are purely remedial and procedural, and it is not within the power of a Mississippi court to give it the force and effect of a substantive law so as to create privity of contract between the complainant, appellant here, and the defendant, appellee here.
Robertson v. Pickrell, 109 U.S. 608, 27 L.Ed. 1049; Ohio v. Chattanooga Boiler Tank Co., 289 U.S. 439, 77 L.Ed. 1307.
Under the law in effect in the state of Mississippi, governing the question of who shall be a party complainant or defendant to a suit, a person who has not an exigible legal or equitable interest in the subject matter of the suit cannot be made a party thereto.
Lewis v. Jefferson, 173 Miss. 657, 161 So. 669; Stephenson v. N.O. N.E.R. Co., 177 So. 509; Griffith's Chancery Practice, sec. 102.
The facts set forth in the bill of complaint and the pertinent provisions of the insurance contract that is exhibited in support of it disclose a cause of action ex delicto against the Gulf Coast Oil Company, the insured named in the insurance contract, which is substantive.
Louisiana Code of Practice, art. 1; Marshall v. Mansura, 41 So. 56; Graham v. American Employers' Ins. Co., 171 So. 471; Jackson State Nat. Bk. v. Merchants Bank Trust Co., 149 So. 539; Frost v. Witter, 64 P. 705, 84 A.S.R. 53; Pavelka v. St. Albert Society, 72 A. 725, 135 A.S.R. 263; Box v. C.R.I. P.R.R. Co., 78 N.W. 694; Hibbard v. Clark, 56 N.H. 155, 22 Am. Rep. 432; Boody v. Watson, 9 A. 794; Emery v. Hazard Powder Co., 22 S.C. 476, 53 Am. Rep. 730; Pomeroy, Pl. Prac., sec. 453.
The obligation of the defendant, appellee here, to the insured named in the contract of insurance exhibited, and which the complainant, appellant here, seeks to enforce, is a contingent and conditional obligation.
The contingent obligation to save the assured harmless from loss from liability imposed by law means that the defendant, appellee here, is obligated to pay and satisfy liability established by a judgment of a court of competent jurisdiction against the assured. The bill of complaint shows upon its face that no such judgment has been rendered. Hence, the bill of complaint states no cause of action against the appellee.
Travelers' Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399; Michel v. Am. Fire Cas. Co., 82 F.2d 583; 36 C.J., sec. 75, pages 1096 and 1097.
The bill of complaint shows definitely that the amount of the complainant's claim has not been rendered certain either by final judgment against the assured after trial of the issue, or by agreement between the parties with the written consent of the company. Hence, the bill of complaint states no cause of action against the appellee.
Travelers' Ins. Co. v. Holiman, 174 Miss. 220, 164 So. 36; Adam v. Maryland Cas. Co., 162 Miss. 237, 139 So. 453; Downing v. Home Ind. Co. of N.Y., 169 Miss. 13, 152 So. 841; Morgan v. Hunt, 220 N.W. 224; Bergstein v. Popkin, 233 N.W. 572; Baker v. Tormey, 245 N.W. 652; Sweitzer v. Fox, 275 N.W. 546; Grant v. Sun Ind. Co., 73 P.2d 615; Sun Ind. Co. v. Dulaney, 89 S.W.2d 307.
The chancery court is without jurisdiction to entertain the tort action set forth in the bill of complaint, which is alleged to have arisen solely out of an alleged wrongful act of a servant of the Gulf Coast Oil Company, the alleged tort-feasor, because it is stated affirmatively in the bill that such tort-feasor is a co-partnership composed of non-residents, residing in Louisiana, and that they are beyond the reach of the process of the court.
Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Freeman v. Alderson, 119 U.S. 185, 30 L.Ed. 372.
To require the defendant, appellee here, to litigate the issue of tort liability between the complainant, appellant here, and the Gulf Coast Oil Company, the alleged tort-feasor, without the joinder of such alleged tort-feasor as a party defendant; and to construe the provisions of Act No. 55, Louisiana Laws 1930, so as to impose legal liability upon the defendant, appellee here, to the complainant, appellant here, in virtue of the terms and provisions of the insurance contract, before liability is imposed by law upon the alleged tort-feasor for damages, and before the amount of the complainant's claim for damages has been fixed and rendered certain either by final judgment against the assured after trial of the issue or by agreement between the parties with the written consent of the defendant, as provided in the contract, violates Sec. 10 of Art. 1 of the Constitution of the United States, prohibiting the impairment of the obligations of contracts.
Pryor v. Goza, 172 Miss. 46, 159 So. 99; Hendrickson v. Apperson, 245 U.S. 105, 62 L.Ed. 178; Brinkerhoff-Faris Trust Sav. Co. v. Hill, 281 U.S. 675, 74 L.Ed. 1107; Herbert v. Louisiana, 272 U.S. 312, 71 L.Ed. 270; Hartford Acc. Ind. Co. v. Delta Pine Land Co., 292 U.S. 143, 78 L.Ed. 1178, 98 A.L.R. 928.
To allow this proceeding, in its present form, to continue to a final decree, in derogation of the conditions of the contract, denies to the defendant, appellee here, the benefits and protection afforded by the applicable remedial laws in effect in the state of Mississippi, resulting in a denial to the defendant of the equal protection of the laws of the state, abridges the privileges and immunities guaranteed to it by the Constitution of the United States, and deprives it of a vested property right without due process of law, in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States.
Jones v. Miss. Farms Co., 116 Miss. 295, 76 So. 880; Hartford Fire Ins. Co. v. Williams, 149 Miss. 123, 115 So. 199; Lochner v. New York, 198 U.S. 45, 49 L.Ed. 937; Coppage v. Kansas, 236 U.S. 1, 59 L.Ed. 441; Adkins v. Lyons, 261 U.S. 525, 67 L.Ed. 785; Advance-Rumely Thresher Co., Inc. v. Jackson, 287 U.S. 283, 77 L.Ed. 306; Hartford Acc. Ind. Co. v. Delta Pine Land Co., 292 U.S. 143, 78 L.Ed. 1178, 98 A.L.R. 928; Turpin v. Lemon, 187 U.S. 51, 47 L.Ed. 70; Herbert v. Louisiana, 272 U.S. 312, 71 L.Ed. 270; Brinkerhoff-Faris Trust Sav. Co. v. Hill, 281 U.S. 673, 74 L.Ed. 1107.
In so far as the decision of this Honorable Court in the case of Burkett v. Globe Indemnity Company, 181 So. 316, construes the state provisions of the Louisiana statute to be substantive law, it is in hopeless conflict with all of the decisions of the Louisiana courts whereby the meaning, force and effect of those statutory provisions have been construed and announced. It imports into the statute an entirely different meaning and much greater and different force than the Legislature of the State of Louisiana intended, when the provisions of the statute are properly considered in the light of their proper setting in the whole body of Louisiana law, which is statutory — the common law having never been in effect in the State of Louisiana — and in the light of the decisions of the Louisiana courts of last resort construing its provisions to be purely remedial and procedural. The Louisiana courts of last resort have been called upon many times to construe and apply the provisions of this statute to varying states of facts under varying circumstances and situations, and, in each and every case where it has been construed, the court deciding the case has unequivocally held its provisions to be purely remedial and procedural. The decisions proceed further and hold that the provisions of the statute confer no substantive rights or benefit whatsoever.
At the time of the advent of the decision of this Honorable Court in the Burkett case, supra, no principle of law was of more universal acceptation, or rested upon sounder reason, than that the construction placed by the proper courts upon the statutes of their own jurisdiction was conclusive of their force and effect, and would be so regarded by all foreign adjudicatures when they become the subjects of consideration. Now, we are confronted with an anomalous situation heretofore unheard of. The proper Louisiana courts have construed the provisions of a Louisiana statute, leaving no doubt as to the meaning, force and effect of such statute, and this Honorable Court has overruled those decisions for the purpose of allowing a litigant to invoke the provisions of that statute in a proceeding in a Mississippi court, when, if the decisions of the Louisiana courts were respected and followed, the provisions of the statute could not be invoked to support such proceeding.
It follows from what has been said that we entertain the hope that the court will reconsider this question, and that the decision in the Burkett case, supra, in so far as it is in conflict with the decisions of the Louisiana courts on the subject, will be overruled.
Argued orally by Carl Marshall, for appellant, and by R.A. Wallace, for appellee.
This suit is brought by the appellant in the chancery court of Harrison County, Mississippi, against the Maryland Casualty Company, the sole defendant, as insurer of the Gulf Coast Oil Company of New Orleans, Louisiana, seeking to recover damages resulting from personal injuries alleged to have been sustained by him in the State of Louisiana as the proximate result of the negligence of an employee of the said oil company while such employee was driving a truck and engaged about the duties of his employment.
The tort law of Louisiana is succinctly stated in Article 2315 of the Revised Civil Code as follows: "Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it." And Article 2320 imposes such liability on an employer for the negligent conduct of his employees.
The asserted liability of the Gulf Coast Oil Company is therefore based on negligence and is governed by the foregoing general negligence statutes of Louisiana, but is covered by a contract of liability insurance wherein the appellee herein is the insurer and the said oil company is the assured. The suit here under consideration is predicated on Act No. 55 of the Laws of Louisiana, 1930, which is amendatory of Act No. 253 of 1918, relating to contracts of liability, and which act declares, among other things, 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." The Act is set forth at length in the case of Burkett v. Globe Indemnity Company, Miss., 181 So. 316.
The bill of complaint was filed against the insurer under the above quoted provision of the foregoing Act, and the sole ground of equity jurisdiction was for a discovery as to the terms and provisions of the contract or liability insurance. Whereupon, the appellee furnished a copy of the insurance contract and the same was made an exhibit to the bill of complaint. Among other clauses, the policy contained the following provisions: "C. No action shall lie against the Company to recover upon any claim or for any loss under Insuring Agreement IV unless brought after the amount of such claim or loss shall have been fixed and rendered certain either by final judgment against the Assured after trial of the issue or by agreement between the parties with the written consent of the Company, nor in any event unless brought within two years after such final judgment or agreement."
Thereupon, a demurrer was interposed by appellee, alleging, among other grounds, that the Act in question is a procedural and remedial statute only, and creates no new cause of action in favor of the appellant against appellee, but merely prescribes the procedure which may be followed in actions brought in the courts of the State of Louisiana to enforce the tort liability imposed against an employer for the negligent acts of a servant within the meaning of the general negligence statutes of that state; and also that prior to its enactment an injured person had a right of action against an insurance company under a policy of liability insurance issued by it, based upon a judgment rendered against an assured of such insurance company, and that therefore such statute created no new right or cause of action, but merely prescribed the method and procedure by which an existing right might be enforced in an action at law in the courts of that state.
The chancellor sustained the demurrer on the ground that the Court of Appeal of Louisiana had construed the Act to be procedural and remedial; and that hence it should be given no extra territorial effect. Subsequent to that decree this court decided the case of Burkett v. Globe Indemnity Company, supra, holding that the said Act created more than a procedural or remedial right and was therefore enforceable in the courts of this state; and in consequence of which decision the appellant brought this appeal.
To sustain the decree of the court below, appellee urges that we should overrule the Burkett Case, supra, as being in conflict with the construction placed on said Act No. 55 of the Laws of Louisiana of 1930 by the courts of that state, and cites numerous decisions rendered by the Court of Appeal of Louisiana, which court, under the constitution of that state, has sole appellate jurisdiction of suits involving damages for personal injuries based on negligence, and among which cases are the following: Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., 18 La. App. 725, 138 So. 183; Gager v. Teche Transfer Co., La. App., 143 So. 62; Robbins v. Short, La. App., 165 So. 512; Graham v. American Employer's Ins. Co., La. App., 171 So. 471. These cases expressly hold that the act in question is procedural and remedial, and that it creates no substantive rights or new cause of action not theretofore given an injured party for damages arising out of legal liability created by the provisions of Article 2315 of the Revised Civil Code of Louisiana. The above cited cases will be again referred to in the course of this opinion.
The decision in the Burkett Case, supra, was based in part on the cases of Floyd v. Vicksburg Cooperage Company, 156 Miss. 567, 126 So. 395, and Travelers' Insurance Company v. Inman, 157 Miss. 810, 126 So. 399, and 128 So. 877, which involved the enforcement of the Workmens Compensation Law of Louisiana, Act La. No. 20 of 1914, as amended, in the courts of Mississippi. The Workmens Compensation Act created a new cause of action in favor of an employee against his employer, not theretofore existing under the general negligence statutes of Louisiana, supra, the liability imposed by the Workmens Compensation Act being without regard to fault or negligence. Moreover, the compensation law under consideration in those cases made compulsory the carrying of liability insurance by the employer, and gave the right to an injured employee to sue the insurer directly as an integral part of the cause of action therein created. It fixed a definite maximum and minimum of recovery, and this measure of damages pertained to the right created rather than to the remedy, Floyd v. Vicksburg Cooperage Co., supra. Prior to its enactment no liability for damages on account of personal injuries existed except for a wrongful or negligent act, and hence the law created liability for injuries not theretofore actionable at all, whereas under Act No. 55 of the Laws of 1930, it is essential that the injured person shall establish a case of negligence arising under a previous statute, Article 2315 of the Revised Civil Code of Louisiana, against the assured, whether the insured tort feasor is a party to the suit or not, as a condition precedent to recovery against the insurer.
The states of Rhode Island and Wisconsin have statutes similar to Act No. 55 of the Laws of Louisiana of 1930, and the courts of those states have likewise construed the provisions thereof to be procedural and remedial only. Morrell v. Lalonde, 44 R.I. 20, 114 A. 178; Stone v. Inter-State Exchange, 200 Wis. 585, 229 N.W. 26; Morgan v. Hunt, 196 Wis. 298, 220 N.W. 224; Bergstein v. Popkin, 202 Wis. 625, 233 N.W. 572; Sweitzer v. Fox, 226 Wis. 26, 275 N.W. 546. The only case called to our attention where the court of a sister state has failed to follow the construction placed on these acts by the courts of the state of their enactment is the case of Kertson v. Mary Johnson, Adm'x, 185 Minn. 591, 242 N.W. 329, 85 A.L.R. 1, and the report of which case fails to disclose that the Minnesota Court, in construing the Wisconsin Act there involved, had its attention called to any of the decisions of the Supreme Court of Wisconsin holding the statute to be procedural and remedial. At any rate, our Court in passing on the suggestion of error in the case of Travelers' Insurance Company v. Inman, supra, 128 So. 878, expressly stated: "In administering the laws of the state of Louisiana, of course, we are bound by the construction given such laws by the Supreme Court of Louisiana." In fact, it is well settled that the construction of a statute by the courts of the state whose legislature enacted it will be adopted by the courts of this state. McIntyre v. Ingraham, 35 Miss. 25, and Botanico Medical College v. Atchinson, 41 Miss. 188. To the same effect are the following cases: Green v. Neal, 6 Pet. 291, 8 L.Ed. 402; Town of Scipio v. Wright, 101 U.S. 665, 25 L.Ed. 1037; Louisville, N.O. T.R. Co. v. State of Mississippi, 133 U.S. 587, 10 S.Ct. 348, 33 L.Ed. 784; McElvaine v. Brush, 142 U.S. 155, 12 S.Ct. 156, 35 L.Ed. 971; Turner v. Wilkes County, 173 U.S. 461, 19 S.Ct. 464, 43 L.Ed. 768; Iowa Life Ins. Co. v. Lewis, 187 U.S. 335, 23 S.Ct. 126, 47 L.Ed. 204; Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721; Willoughby v. City of Chicago, 235 U.S. 45, 35 S.Ct. 23, 59 L.Ed. 123; St. Louis K.C. Land Co. v. Kansas City, 241 U.S. 419, 36 S.Ct. 647, 60 L.Ed. 1072; First National Bank v. Weld County, 264 U.S. 450, 44 S.Ct. 385, 68 L.Ed. 784; Louisville Gas Electric Co. v. Coleman, 277 U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770; Bandini Petroleum Co. v. Superior Court of California, 284 U.S. 8, 52 S.Ct. 103, 76 L.Ed. 136, 78 A.L.R. 826. The rule being thus almost universally established, it only remains for us to determine what construction has been placed on Act No. 55 of 1930 by the court of last resort of Louisiana having jurisdiction of suits brought under the provisions thereof. Such jurisdiction is vested in the Court of Appeal of Louisiana, Const. of 1921, Art. 7, Sec. 29; Metropolitan Casualty Insurance Company of New York v. Bowdon, 181 La. 295, 159 So. 394, and Reeves v. Globe Indemnity Company of New York, 182 La. 905, 162 So. 724, the Supreme Court of that state being without jurisdiction in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained within the meaning of the Act here in question. If it be contended that the effect of the Act is to make an injured person a party to the contract of liability insurance between the insurer and the assured, such contention is answered by the Supreme Court of Louisiana in the case of Metropolitan Casualty Company of New York v. Bowdon, supra, 159 So. 396, declining jurisdiction of a cause, and wherein it was said: "The mere fact that the plaintiff is indirectly asserting the tort action as a statutory subrogee and conventional assignee does not make this an action ex contractu. The subrogation and assignment are merely incidental to the main demand." And in the case of Reeves v. Globe Indemnity Company, supra, 162 So. 725, the Supreme Court of Louisiana said: "The plaintiff exercised her statutory optional right to institute this suit against the defendant alone rather than jointly and in solido against defendant and King. However, that fact did not change the nature of the action from one ex delicto to an action ex contractu. The cause that gave rise to the right of action has not been changed, nor does the statutory right of action against the defendant change the nature of the demand. This is a suit for damages for physical injuries, and this court is therefore without jurisdiction ratione materiae."
In determining the construction placed upon Act No. 55 of the Laws of Louisiana of 1930 by the Court of Appeal of that state, it will be found that in the case of Rossville Commercial Alcohol Corporation v. Dennis Sheen Transfer Company, Inc., et al., 18 La. App. 725, 138 So. 183, it was held that this statute, when given retrospective operation, and applied to all policies in force at the time of its enactment, does not impair the obligation of contracts contrary to Const. U.S. Art. 1, Sec. 10, U.S.C.A., since the obligation of the insurer to pay in event of damages caused by assured can not be said to be impaired merely by the fact that the payment may be demanded directly by the injured person instead of indirectly through assured, and no substantive or vested rights are thereby taken from insurer, whose liability remains contingent and dependent on some proof of fault, as was required before the passage of the act. In the course of its opinion the Court said:
". . . Likewise is it found that: `The rule that the terms of a statute or constitution are not to be interpreted as having a retrospective or retroactive operation, unless the language used plainly conveys that intention and is susceptible of no other interpretation, finds no application to remedial statutes or to the remedial provisions of organic laws. Remedial laws are an exception to the general rule, and may have retroactive or retrospective force.' Cassard v. Tracy (Cassard v. Zacharie), 52 L. Ann. 835, 855, 27 So. 368, 377, 49 L.R.A. 272.
"Here we feel that no substantial right of the insurer would be interfered with by giving to the act of 1930 retrospective effect to such extent as to hold that, into all policies in force at the time of its enactment, there was by the said statute written the terms thereof."
Again, in the case of Gager v. Teche Transfer Company, 143 So. 62, the Court of Appeal cited the Rossville Case, supra, and reaffirmed its holding that the provisions of Act No. 55 of 1930 "merely affected the method of procedure, were remedial, that such statutes are an exception to the general rule, . . . and that such legislation does not impair the obligations of contracts." In other words the Court sustained the constitutionality of the act on the ground that the legislature was procedural and remedial.
Adhering to the holding that the act here in question is procedural and remedial in its nature the Court of Appeal of Louisiana, in the case of Lowry v. Zorn et al., 157 So. 826, said:
"Plaintiff also contends that Act No. 55 of 1930 affects only the remedy or procedure. In so far as in a proper case the act permits the party injured to join the insurer, the statute is merely remedial. Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., 18 La. App. 725, 138 So., 183; Hudson v. Georgia Casualty Co. (D.C.), 57 F.2d 757.
"But if it is construed to give extraterritorial effect to the jurisdiction of the courts, it becomes more than remedial. We cannot so construe it."
The Court of Appeal, again in the case of Robbins v. Short, 165 So. 512, construed the act and said: "This act is purely remedial and does not affect any substantial rights under the contract of insurance. Hudson v. Georgia Casualty Company (D.C.) 57 F.2d 757. Nor does the act impair the obligation of contracts."
And, as late as January 1937, the Court of Appeal again held in Graham v. American Employers' Insurance Company, 171 So. 471, that: "The act in question does not furnish substantive rights. Its benefits are procedural in nature. Gager v. Teche Transfer Co. (La. App.), 143 So. 62; Tuck v. Harmon (La. App.), 151 So. 803, 805. The statute merely gives a right of action against the insurer when the claimant has a cause of action against the insured."
Our Court in the case of Dunn Construction Company v. Bourne, 172 Miss. 620, 159 So. 841, construing the Louisiana Workmens Compensation Act, requiring compensation proceedings to be instituted within one year from the time the cause of action accrued, held that since the one year limitation period constituted part of the substantive law, which would be enforced in Mississippi while procedural statutes would not be so enforced, said:
"The controlling principle governing the decision of this case was announced and determined by this court in the case of Louisville Nashville R. Co. v. Dixon, 168 Miss. 14, 150 So. 811, wherein this court held, with reference to the particular act here under review, that it created a right of action not existing under the common law, and by its own terms fixed the time within which the action must be begun and that this time limit is a substantive condition inherent in the statute and not a statute of limitations or prescription, and that the right to institute action thereunder becomes extinct after the time fixed therein has elapsed." In that case this Court cited with approval the case of White v. Louisiana Western Ry. Company, 174 La. 308, 140 So. 486, and said that the Supreme Court of Louisiana had held that the period of one year limitation referred to "was so much a matter of substance integral in the statute that a change in it with regard to the allowable period for suits could not be made so as to affect suits on liability occurring prior to the change or amendment, and further held that such a change in the statute would impair the obligation of a contract." Thus it will be seen that the Supreme Court of Louisiana has placed an entirely different construction upon the provisions of the Workmens Compensation Law of Louisiana than that placed by the Court of Appeal on the said Act No. 55 of the Laws of 1930 here involved, the Supreme Court holding that the former created substantive rights and the Court of Appeal holding that the latter was merely procedural and remedial. Therefore our Court in the decision of the cases of Floyd v. Vicksburg Cooperage Company, supra; Travelers' Insurance Company v. Inman, supra; Louisville N.R. Company v. Dixon, supra, and Dunn Construction Company v. Bourne, supra, merely followed the interpretation given the Louisiana Workmens Compensation Law by the Supreme Court of that state, and gave the statute extraterritorial effect because it created a right of action not existing under the common or civil law.
The act here in question affects the question of who may be parties to a tort action arising out of the general negligence statutes contained in the Revised Civil Code of Louisiana, and it was held in Kirkland Co. v. Lowe, Pattison Co., 33 Miss. 423, 69 Am. Dec. 355, that questions as to who are the proper parties to suits, relate rather to the form of the remedy than to the right and merit of the claim, and are therefore to be determined by the law of the forum. And of course an insurer under a contract of insurance liability could not be sued in Mississippi for damages arising from a tort committed by the assured, in the absence of a statute granting the right to sue the insurer direct, and where no privity of contract exists between the injured person and the insurer.
It is true that it was held in the case of Chicago, etc., R. Company v. Doyle, 60 Miss. 977, that: "a right of action created by the statute of another State, of a transitory nature, may be enforced here, where it does not conflict with the public policy of this State to permit its enforcement." But in that case the foreign statute under consideration created the right of action sued on in this state, whereas Act No. 55 of the Louisiana Laws of 1930 merely gave a direct remedy against the insurer to enforce a cause of action already existing under the general negligence statutes of that state against the person responsible for the injury complained of, in lieu of requiring the injured person to take the circuitous course of first obtaining a judgment against the tort feasor and thereafter asserting the liability against the insurer.
While there may be expressions found in reported cases and contained in the work of some text writers which may support the contrary view, we are of the opinion that, although the court of the forum is entitled to decide for itself whether a statute of another state is substantive or procedural in the absence of a construction of the statute by the courts of the state of its enactment, the better rule is that the construction given a statute by the courts of the state whose legislature enacted it will be adopted by the courts of other jurisdictions, with certain exceptions not present in the case at bar. In fact, it was said by this court in the case of McIntyre et al. v. Ingraham et al., hereinbefore cited, that "no principle of law is of more universal acceptation, or stands upon sounder reason than that the construction put by the proper courts upon the statutes of their own jurisdiction, is conclusive of their force and effect, and will be so regarded by all foreign judicatures, when they may become the subjects of consideration. Story's Confl. Laws, secs. 272, 277. `This course,' says Chief Justice MARSHALL [Elmendorf v. Taylor, 10 Wheat. 152, 6 L.Ed. 289] `is founded on the principle, supposed to be universally recognized, that the judicial department of every government, when such department exists, is the appropriate organ for construing the legislative acts of that government.'" Such a rule is supported by the long list of authorities hereinbefore cited on that point; is sanctioned in a manner by Rest. Conflict of Laws, subsection (b) of section 584; and was expressly adhered to by this Court in Travelers' Insurance Company v. Inman, 157 Miss. 810, 126 So. 399, 128 So. 877, where it was said that: "In administering the laws of the state of Louisiana, of course, we are bound by the construction given such laws by the Supreme Court of Louisiana;" and in the case of Dunn Construction Company v. Bourne, 172 Miss. 620, 159 So. 841, where the Court held that the substantive law of Louisiana would be enforced in Mississippi while procedural statutes would not be so enforced. We do not feel justified in undertaking to say that the courts of Louisiana have misunderstood the statute now under consideration, and to then attempt to correct such a misunderstanding. Therefore, in view of the decisions of the Court of Appeals of Louisiana, hereinbefore referred to, holding that Act No. 55 of 1930 is procedural and remedial, and which we feel obligated to follow, whether we are inclined to fully agree with that interpretation of the act or not, it results that the same should be given no extraterritorial effect; that the case of Burkett v. Globe Indemnity Company, (Miss.), 181 So. 316, should be overruled; and that the decision of the court below sustaining the demurrer and dismissing the bill should be affirmed.
Affirmed.
Burkett v. Globe Indemnity Company (Miss.), 181 So. 316 (not yet reported in the State Reports), was rightly decided and should not be overruled. What I shall here say is merely supplementary to what was there said, and the opinion therein should be read in connection herewith. An interesting and well thought out review of that case by L.A. Wyatt, a student of the University of Mississippi, appears in 11 Miss. Law Journal 234, which may be read with profit, as also the comments thereon by O.B. Triplett, Jr., a member of the bar, in the same volume at
The case we have before us is a suit in equity by a citizen and resident of Harrison County, Mississippi, against the appellee, a foreign corporation doing business in Mississippi, to recover from it damages for an injury alleged to have been negligently caused him by the Gulf Coast Oil Company in Louisiana, to which company the appellee had issued a policy in that state insuring it against damages negligently inflicted by it on persons.
Act No. 55, Louisiana Laws of 1930, provides that when such a policy is issued: "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."
If this statute confers a right of action, it should be enforced by the courts of this state unless so to do would violate its public policy, Rest. Conflict of Laws, Sec. 607, Chicago, St. L. N.O.R. Company v. Doyle, 60 Miss. 977, and Travelers' Insurance Company v. Inman, 157 Miss. 810, 126 So. 399, 128 So. 877; but not if it simply provides a procedure for the enforcement of a right of action otherwise conferred. Cf. Floyd v. Vicksburg Cooperage Company, 156 Miss. 567, 126 So. 395, wherein a Louisiana Statute was enforced which created a right of action unknown to our law and against the state's policy which the legislature has several times refused to change — a workman's compensation act creating liability without fault and which was "cribbed, cabined and confined" by administrative and procedural requirements. See Rest. Conflict of Laws, page 486, and 2 Beale, The Conflict of Laws 1317. The statute here under consideration in plain and unmistakable language confers a right of action by the injured person against the insurer in a policy of the character here under consideration and the Louisiana Courts so hold. Graham v. American Employers' Ins. Company (La. App.), 171 So. 471. But according to the controlling opinion herein, the statute confers no right of action but merely a procedure for enforcing such a right. That opinion does not determine as an original proposition whether this statute confers a right of action or merely a procedure to enforce such a right, but rests on the fact that the Louisiana Courts have said that it was remedial and procedural. It is true that the Louisiana Courts while saying that the statute confers a right of action have also said that it is remedial and procedural in character. This latter language was not used in connection with any conflict of laws rule, but mainly in cases wherein the validity and retroactive character of the statute was under consideration; but aside from that the universal rule is that the court of the forum determines for itself whether the right given by a foreign statute is one of substance or procedure. Rest. Conflict of Laws, Sec. 584; 3 Beale, The Conflict of Laws 1601. There is no peculiar magic in either the word "substance" or "procedure" and the line of demarcation between them is shadowy, but I have no doubt that if called on to construe a similar statute of this state this court would hold that a substantive right was conferred thereby — a right of action can be no other. What the statute here under consideration does is to obligate the insurer to pay the damages suffered by an injured person direct to him. This necessarily follows from the grant to the injured person of a right of action directly against the insurer. It is true that this right of action here given the injured person is on a cause of action which without the statute he would have had only against the person who inflicted his injury; Graham v. American Employers' Ins. Company, supra; but that is not the test under the conflict of laws rule, the test there is the right to an action on a given state of facts. A cause of action as distinguished from a right of action is merely the fact or facts out of which a right of action arises. 1 Am. Jur. Action, Sec. 8(c); Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316. The appellant's right of action against the appellee arises out of the facts which constitute his cause of action against the Gulf Coast Oil Company, plus the insurance policy and the Louisiana Statute. When a statute of another state confers a right of action for the recovery of a sum of money, here damages, that right, in a transitory action, will be enforced by the courts of another state. Rest. Conflict of Laws, Sec. 607, Comment a.
Where the question simply is who are proper and necessary parties to an action, the law of the forum governs, but when a right of action is expressly conferred against a designated party no such question arises.
In this day when the tendency is toward uniformity in the administration of justice among the states of our federal union, it is unfortunate that it should be held that the rights and obligations that inhere in this insurance policy vary because of the forum in which an action is brought for their enforcement. Rest. Conflict of Laws 699. The effect of what is here being held is to deny to a citizen of this state access to its courts for the enforcement of a right accruing to him under the laws of another state against a corporation doing business in this state. Whether this violates the full faith and credit clause of the Federal Constitution, U.S.C.A., Const. art. 4, sec. 1, I will not pause to inquire.
McGowen, J., concurs in this opinion.