April 19, 1943.
An action to recover for injuries sustained by bus passenger in Louisiana was maintainable in Mississippi against bus company, a Louisiana corporation operating in Mississippi and having a resident agent for service of process in Mississippi, even though the passenger was only a temporary resident of Mississippi, since the right to sue did not depend upon domicile of plaintiff (Code 1930, secs. 496, 4140).
An action brought in Mississippi against a Louisiana corporation operating a passenger bus service in both states, to recover for injuries sustained by passenger in Louisiana, would not be enjoined on ground that punitive damages were not allowable in Louisiana but may be imposed in Mississippi, where action sought only actual damages and not punitive damages.
An action brought in Mississippi against a Louisiana corporation operating a passenger bus service in both states to recover for injuries sustained by passenger in Louisiana would not be enjoined on ground that contributory negligence is a complete defense in Louisiana and only a pro tanto defense in Mississippi, since the courts of Mississippi would apply the substantive law of Louisiana, including that of contributory negligence, in the trial of the case.
An action brought in Mississippi against a Louisiana corporation operating a passenger bus line in both states, to recover for injuries sustained by passenger in Louisiana, would not be enjoined on ground that statements passenger made to others regarding the extent of her injuries are admissible against her in Louisiana but not admissible in Mississippi, since such statements unless made under conditions recognized as confidential are admissible in Mississippi.
An action brought in Mississippi against a Louisiana corporation operating a passenger bus service in both states, to recover for injuries sustained by passenger in Louisiana, would not be enjoined on ground that in Louisiana the proof must show fault on part of defendant before liability can be imposed but that in Mississippi mere proof of injury from operation of the bus without proof of negligence makes out a prima facie case of liability, since statute so providing only applies to carriers running on tracks (Code 1930, sec. 1580).
The right to maintain action in Mississippi for injuries sustained by bus passenger in Louisiana would not be denied on ground that the appellate courts of Louisiana had broader powers than the appellate courts of Mississippi, since jurisdiction of the court of one state will not be denied because of difference in rules of procedure or in the powers of the respective courts.
An action brought in Mississippi against a Louisiana corporation operating a passenger bus service in both states, to recover for injuries sustained by passenger in Louisiana, would not be enjoined on ground that in Louisiana a doctor examining plaintiff's injuries could testify over plaintiff's objection but not so in Mississippi, since the practical operation of the rule was of doubtful benefit and jurisdiction would not be denied to one court because the rules of evidence were different from those of the state where the right of action arose.
An action brought in Mississippi against a Louisiana corporation operating a passenger bus service in both states, to recover for injuries sustained by passenger in Louisiana, would not be enjoined on ground that all defendant's witnesses resided in Louisiana and their evidence would have to be given by deposition, where the bill for injunction was only sworn to by counsel and defendant's answer denying such allegations was sworn to by defendant and was not overthrown by the bill (Code 1930, sec. 383).
A bill sworn to by a solicitor of complainant is not within statute abolishing the rule requiring two witnesses, or one witness and corroborating circumstances, to overthrow an answer denying the allegations of the bill, when the bill is sworn to by complainant (Code 1930, sec. 383).
An action brought in Mississippi against a Louisiana corporation operating passenger bus service in both states, to recover for injuries sustained by passenger in Louisiana, would not be enjoined on ground that the doctor who had examined passenger's injuries and found them to be slight would not be available as a witness in Mississippi, where defendant's answer denying such allegation was sworn to by defendant and the truth of such allegation was not established by complaint sworn to by complainant's counsel.
11. APPEAL AND ERROR.
An action brought in Mississippi to recover for injuries sustained by passenger in Louisiana would not be enjoined on ground that carrier procured an injunction in Louisiana restraining passenger from prosecuting action in Mississippi, where record was incomplete and failed to show that such contention had been presented to chancellor.
An action brought in Mississippi to recover for injuries sustained by passenger in Louisiana would not be enjoined on ground that such action had been enjoined in Louisiana, since injunction cannot be made the ground for issuance of another injunction.
APPEAL from chancery court of Marion county, HON. BEN STEVENS, Chancellor.
R.H. Dale, of Columbia, and Benj. W. Miller, of Bogalusa, La., for appellant.
This is a bill in equity in which an injunction was issued by the chancery court of Marion County on the grounds that the plaintiff in a suit at law was domiciled in the State of Louisiana, and that she had temporarily absented herself from that state for the purpose of evading the laws of her domicile. The suit at law which was enjoined had been filed by her in the circuit court of Marion County under the allegation that she was an adult resident of Mississippi. The accident upon which the suit was predicated happened in Louisiana, during the time when Rainer Mondy was, by her own admissions, domiciled in the State of Louisiana, the alleged tort-feasor being likewise domiciled in the State of Louisiana. She had moved to Mississippi, upon her own admissions, about one week before the filing of the suit. She had, according to her admissions, consulted with Mississippi attorneys and arranged about the suit while still domiciled in the State of Louisiana. Her good faith was attacked. The writ was dissolved on motion to that effect. A supplemental bill was filed, setting out that the defendant Rainer Mondy had been enjoined by the courts of her own state, to which bill was attached a copy of the preliminary judgment of the Louisiana court, duly certified in accordance with the Acts of Congress.
The domicile of each person is where he has his home, his affairs, his principal establishment.
Vatell, Treatise on the Law on Nations, p. 163; Pothier, Treatise on the Customers of Orleans, par. 8; Code Civile des Francais, Art. 102; Revised Civil Code of Louisiana, Art. 38.
A married woman has no other domicile than that of her husband.
Revised Civil Code of Louisiana, Art. 39; Civil Code of 1825 of Louisiana, Art. 48; Code Civile des Francais, Art. 108.
Where there is any doubt as to the force or effect of any expression used in the Revised Civil Code of Louisiana, the French Text of the edition of 1825 is controlling.
There is a radical distinction between "domicile" and "residence." A person may have as many residences as he pleases, but can have but one domicile.
Estopinal v. Michel et al., 121 La. 879, 46 So. 907, 19 L.R.A. (N.S.) 759.
Every presumption lies against a change of domicile, and the party pleading the change bears the burden of proof.
Kinder et al. v. Scharff et al., 125 La. 594, 51 So. 654; Succession of Simmons, 109 La. 1097, 34 So. 102; State ex rel. J.C. Egan, Attorney General, v. Hiram R. Steele, 33 La. Ann. 910; Desmare v. United States, 39 U.S. 609, 23 L.Ed. 959.
The intention to change one's domicile in the State of Louisiana must be made by the recordation of an express declaration.
Revised Civil Code of Louisiana, Art. 42; Code Civile des Francais, Art. 104.
In default of such a declaration the proof of the intention depends upon circumstances.
Revised Civile Code of Louisiana, Art. 43; Code Civile des Francais, Art. 105.
The original domicile persists unless one has (1) lost the old domicile, or (2) acquired the new. If either element is lacking, no new domicile is acquired.
Beason v. State, 34 Miss. 602; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 530; Allgood v. Williams, 8 So. 722; 1 Marcade, Explication du Code Napoleon, par. 318.
When the witnesses of a party are in a state foreign to the forum, no process can compel their attendance in the foreign state. This places a grievous and undue burden on that party.
There is a radical difference in the theory of the assessment of damages between the legal systems of the States of Louisiana and Mississippi. In the former state (1) the obligation of an alleged tort-feasor is reparation; (2) no punitive damages can be recovered in any case; and (3) the claimed damages must be itemized, in order that they may be confined to reparation. In Mississippi, punitive damages may be awarded, though great caution must be used in their assessment. As no itemization of damage is required, it is a practical impossibility to tell from the award of the jury whether or not they have been inflicted.
Yazoo M.V.R. Co. v. May, 104 Miss. 422, 61 So. 449, 44 L.R.A. (N.S.) 1138; Illinois Cent. R. Co. v. Dodds, 97 Miss. 865, 53 So. 409; Janssen Catering Co. v. Abadie, 157 La. 357, 102 So. 428; Vincent v. Morgan's Railroad and Steamship Co., 140 La. 1027, 74 So. 541; Howell v. Vicksburg, Shreveport Pacific R. Co., 144 La. 428, 80 So. 613; Dunson v. Baker, 144 La. 167, 80 So. 238; Overhultz v. Row, 152 La. 9, 92 So. 716; Revised Civil Code of Louisiana, Art. 2315.
There is a radical difference between the systems of the States of Louisiana and Mississippi as regards the admissibility of medical evidence. In Louisiana the results of an examination by a physician are not privileged and the physician may be required to divulge what he finds. The courts may appoint a doctor as an expert to examine a plaintiff and report upon his physical condition, on its motion, or at the motion of a party to the suit. In Mississippi the reverse is true. Any communication to a physician or anything found by him in an examination is privileged. The application of the "privileged communications statute" is held to be a matter of evidence and procedure rather than a substantive law.
Yazoo M.V.R. Co. v. Messina, 109 Miss. 143, 67 So. 963; New Orleans N.E.R. Co. v. Jackson, 145 Miss. 702, 110 So. 586; Paderas v. Stauffer (La.), 120 So. 886; Walker v. White Wood Products Co., 4 La. App. 405; Miss. Code of 1930, Sec. 1536; Code of Practice of Louisiana, Art. 442.
There is a radical difference between the systems of Louisiana and Mississippi as to the proof required of the plaintiff in a case where an injury occurs by a common carrier. In Louisiana the controlling word of Article 2315 of the Revised Civil Code is "fault" and unless fault can be shown there cannot be a recovery. In Mississippi a presumption of negligence on the part of the carrier is inferred, and this is held to be a rule of procedure and evidence rather than of substantive law.
Myers v. Lamb-Fish Lumber Co., 106 Miss. 766, 64 So. 727; Easterling Lumber Co. v. Pierce, 106 Miss. 672, 64 So. 461; New Orleans, J. G.N.R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98; Olivier v. Majors, 145 La. 815, 83 So. 23; Plummer v. Gulf, Mobile Ohio R. Co., 153 So. 322; Mississippi Code of 1930, Sec. 1580.
There is a radical difference between the laws of the State of Louisiana and the State of Mississippi as regards contributory negligence. In Louisiana contributory negligence is an absolute bar to recovery. In Mississippi it goes merely to the mitigation of the damages, and as a practical matter this avails the defendant nothing, as a grossly negligent plaintiff can still recover from a slightly negligent defendant. A jury being untrained in the law cannot actually weigh and measure degrees of negligence. This is often beyond the most erudite of judges.
Yazoo M.V.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Thompson v. Morgan, 167 La. 335, 119 So. 69; Belle Alliance Co. v. Texas Pacific R. Co., 125 La. 777, 51 So. 846, 19 Ann. Cas. 1143; Schwartz v. Crescent City R. Co., 30 La. Ann. 15; Mississippi Code of 1930, Sec. 511.
There is a radical difference in the laws of the States of Louisiana and Mississippi as regards the finality of the judgments of decrees of an original court. In Louisiana, all appeals are on the law of the facts, and the appellate court renders such judgment as the court below should have rendered. It is far from unusual to have a reversal on the facts in that state. In Mississippi the finding of fact by a jury will be disturbed only where there is no evidence to support it.
Illinois Cent. R. Co. v. Smith, 102 Miss. 276, 59 So. 87; Ellis et al. v. Kolb et al. (La.), 196 So. 89; Constitution of Louisiana, Article VII, Secs. 10, 29.
Where a party to a cause has a certain witness, related to them, and the witness is at court when the case is tried, and presumably knows the facts if any one does, and the party fails to call this witness, it raises the presumption that this witness would have testified against the party, or that the facts certain to be within his knowledge did not exist.
The Louisiana injunction was properly issued.
As a matter of comity it should have been recognized by the court below.
Fisher v. Pacific Mutual Life Ins. Co., 112 Miss. 30, 72 So. 846; Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 539; Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, 82 A.L.R. 696.
Henry Mounger, Bernard Callender, and Hall Hall, all of Columbia, for appellee.
The burden of proof was on appellant to sustain the allegations of the bill, failing in which it was proper to dismiss the bill and dissolve the injunction.
Davis v. Hart, 66 Miss. 642, 6 So. 318; Derdeyn v. Donovan, 81 Miss. 696, 33 So. 652; Richardson v. Lightcap, 52 Miss. 508; Foxworth v. Magee, 48 Miss. 532.
Since the bill was sworn to by appellant's attorney on information and belief, and since the answer was sworn to by appellee on personal knowledge, appellant failed to meet the burden of producing two witnesses or one witness and corroborating circumstances to overthrow the answer.
Appellee was unquestionably domiciled in Mississippi when her action at law was filed. Domicile is acquired as soon as residence is established with intent to acquire domicile, the duration of such residence being immaterial.
Hairston v. Hairston, 27 Miss. 704; McHenry v. State, 119 Miss. 289, 80 So. 763; LeBlanc v. Loughridge (La.), 95 So. 419; Brewster v. Emlet (La.), 122 So. 54; Succession of Dancie (La.), 186 So. 14; Succession of Webre (La.), 136 So. 67; Mississippi Constitution, Sec. 8; 19 C.J. 393, 404-406.
Appellant has a full, complete and adequate remedy in the law court, and therefore the chancery court has no jurisdiction of its suit.
Learned v. Holmes, 49 Miss. 290; Ricks v. Richardson, 70 Miss. 424, 11 So. 935; New Orleans Shell Lime Co. v. Lowenstein (Miss.), 11 So. 187; International Harvester Co. v. Still, 98 Miss. 127, 53 So. 394; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; Mississippi Code of 1930, Sec. 496; Griffith's Miss. Chancery Practice, Sec. 438.
No punitive damages have been sought in this case, but, even if sued for, the courts of Mississippi would not allow punitive damages in a cause of action originating in Louisiana.
Pullman Palace Car Co. v. Lawrence, supra.
On trial in the circuit court the appellant may get the benefit of the Mississippi decisions as to privileged communications.
This case involves the wrecking of a passenger bus on a public highway, and the Mississippi prima facie statute, applying only to railroads, has no earthly application here.
Mississippi Code of 1930, Sec. 1580.
The Louisiana defense of contributory negligence will be recognized and applied by the courts of Mississippi.
Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415; Lucius v. Harris, 169 Miss. 385, 153 So. 390; Mangum v. Reid, 178 Miss. 352, 173 So. 284.
None of the charges made by appellant have been sustained by the proof.
The judgment for an injunction obtained in Louisiana is void and may be so treated in Mississippi or anywhere else, because it was rendered on constructive process against Rainer Mondy when she was not a citizen of or domiciled in Louisiana.
Fisher v. Pacific Mutual Life Ins. Co., 112 Miss. 30, 72 So. 846; Ory v. Bosio, 178 La. 221, 151 So. 187; Cole v. Cunningham, 133 U.S. 107, 33 L.Ed. 539; Bradford v. Clapper, 286 U.S. 145, 76 L.Ed. 1026; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.
Argued orally by Benj. W. Miller, for appellant, and by Lee D. Hall, for appellee.
On August 20, 1942, appellee Mondy filed a declaration in the circuit court of Marion County, Mississippi, seeking to recover a personal judgment against appellant, Tri-State Transit Company of Louisiana, Inc. (which will be called Transit Company in this opinion), for personal injuries she claims resulted to her from negligence of the Transit Company while she was a passenger on its bus in the City of Bogalusa, Louisiana, October 18, 1941. Transit Company is a corporation chartered, organized and existing under the laws of Louisiana, but is domesticated and has an agent for personal service of process and is operating as a common carrier of passengers by bus in Mississippi; and its operations extend through Marion County.
On September 15, 1942, Transit Company filed the present bill in the chancery court of Marion County to enjoin the prosecution of said law action, on which a temporary injunction issued without notice.
Mondy answered the bill and moved a dissolution of the injunction. The chancellor, on the pleadings and proof, dissolved the injunction, dismissed the bill, assessed Transit Company with all costs, and awarded Mondy $250 damages, from which decree the Transit Company appeals.
The bill sets out a number of grounds for enjoining the law action, the first and principal one being that at the time of the alleged tort she was a resident citizen of, and domiciled in, the Parish of Washington, Louisiana, where the cause of the action arose, and that she came to Mississippi a short time before instituting her action here with the intention of remaining here temporarily and only until the litigation shall have terminated, for the purpose of evading the laws of Louisiana, and to obtain the advantage of trial under the laws and in the courts of Mississippi, which, it is asserted, are more favorable to her case than those of Louisiana. Practically all of the testimony taken on the hearing was directed to the question of whether Mississippi, at the time she filed her suit, was the domicile or the temporary residence of Mondy. The question is immaterial; she had the right to resort to the courts of this state even though a temporary resident thereof. In Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53, 55, although both plaintiff and defendant were citizens of Illinois, where the tort and injury occurred, the court, on the point under consideration, said: "Until the hearing of the able and exhaustive oral argument of appellant's counsel in support of this assignment, we had supposed there was, in our own state, no ground left for dispute that in transitory actions, whether in tort or on contract, our courts were wide open to any suitor, resident or nonresident, against his adversary, whether resident or nonresident, whether a natural person or an artificial one, regardless of where the right of action occurred, if only the courts had jurisdiction of the subject-matter, and could obtain jurisdiction of the party, either by a voluntary appearance, or by service of process," citing a number of authorities. Transit Company operates a motor transportation line for the conveyance of passengers through Marion County, and, under Section 496, Code of 1930, the action could be brought in that county, and has designated an agent resident in Hinds County, Mississippi, upon whom process can be served and jurisdiction of the person of the Transit Company acquired under Section 4140, Code of 1930.
But if the right to sue depends upon residence or domicile of plaintiff, as appeared to be the theory of the Transit Company on the trial of this cause, the chancellor evidently decided the fact in favor of domicile. There was ample evidence to support the finding.
Transit Company next says the law action should be enjoined because punitive damages are not allowable in Louisiana but may be imposed in Mississippi. The answer to that in this case is that no such damages are sought in this action; it is a suit purely for actual damages.
It is next urged as a ground for injunction that contributory negligence is a complete defense in Louisiana and only a pro tanto defense in Mississippi. It is sufficient response to that contention, as well as the one next preceding, to say that the courts of this state will apply the substantive law of Louisiana, including that of contributory negligence, in the trial of this case in Mississippi. Pullman Co. v. Lawrence, supra; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415; Lucius v. Harris, 169 Miss. 385, 153 So. 390; Mangum v. Reid, 178 Miss. 352, 173 So. 284.
It is said in the bill in support of the injunction that statements which plaintiff might have made to others regarding the nature and extent of her injuries are admissible against her in Louisiana but not admissible in Mississippi. This is a misconception of the rule in Mississippi unless, perhaps, such statements are made under condition recognized as confidential in this state.
It is next said that in Louisiana the proof must show "fault" on the part of defendant before liability can be imposed, but that in Mississippi mere proof of injury from operation of the bus, without proof of negligence, makes out a prima facie case of liability against defendant. Transit Company has misread Section 1580, Code of 1930; that section applies only to engines, cars, etc., "running on tracks."
It is further urged as a ground for the injunction that "Under the jurisprudence of Louisiana, the Appellate Courts review both the law and the facts in every case, and render such judgment as the Court below should have rendered," but "under the laws of Mississippi, the Appellate Courts will not disturb the finding of the facts by a jury unless there is no evidence to support the same." We do not undertake to state the exact degrees of variance between the rules of Louisiana and Mississippi governing consideration by their respective appellate courts of fact-finding by the juries, or whether the rule in Louisiana has been accurately stated, but the quoted statement does not accurately state the rule in Mississippi. A number of adjectives have been used by this court in describing conditions under which it will override the findings of the jury, such as where the verdict is manifestly incorrect, or against the preponderance or the great weight of evidence; and it has often happened that this court has held that a peremptory instruction on the facts should have been given to one party or the other, and has entered the judgment here which should have been rendered by the lower court. But no authority is cited, and we know of none which denies jurisdiction to the court of one state because of differences in rules of procedure, or in the powers of the respective courts as compared one with the other. Such differences exist between courts of all the states.
It is next said that Mondy was examined by a doctor in Louisiana after her alleged injury and that this doctor can testify, over her objection, in that state, but not in Mississippi. That is true in Mississippi; but, looking to the merits and effect in practical operation of the rule, there is much room for doubt whether it is of benefit or disadvantage to defendants. Refusal of plaintiff to waive the privilege, objection by plaintiff to the doctor's evidence when offered, all in the presence of the jury, and the granting unto defendant, if requested, an instruction that the failure of plaintiff to introduce an available witness justifies the conclusion his testimony would be against plaintiff, as was held proper in Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 131 A.L.R. 684, greatly mitigate, if they do not entirely eliminate, any supposed injury from the stated rule. But, be that as it may, no case has been cited, and we have found none, which holds that the courts of one state have no jurisdiction because, and only because, the rules of evidence may be different from those of the state where the right of action arose. There are varying degrees of differences in the rules of evidence of all the states.
It is stated in the bill that all of the witnesses for the Transit Company reside in Louisiana and cannot be brought to Mississippi by compulsory process and their evidence will have to be given by depositions — an unsatisfactory manner of introducing testimony. This contention would carry much force if the facts, as stated, had been proved. But they were not proved. The bill was sworn to by local counsel for the Transit Company, "to the best of his knowledge and belief." The bill does not waive answer under oath. The answer denies the foregoing allegations in the bill, and it is sworn to by Mondy as of personal knowledge. There was no testimony taken on these allegations. The burden was upon the Transit Company to establish the facts. A bill sworn to by a solicitor of complainant is not within Section 383, Code of 1930, abolishing the rule requiring two witnesses, or one witness and corroborating circumstances, to overthrow an answer denying the allegations of the bill, where the bill is sworn to by the complainant. Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500; Fant v. Fant, 173 Miss. 472, 162 So. 159.
It is also said in the bill that a Dr. Lafferty, a prominent surgeon of Bogalusa, is the chief witness of the Transit Company, that he examined Mondy shortly after the accident and found her injuries to be slight, and that he would not be available as a witness at the trial in Marion County, Mississippi. The answer denies all of these allegations except the fact of the examination; and the state of proof as to them is the same as that set out in the next preceding paragraph.
The last contention of the Transit Company is that it procured an injunction in the equity court of Washington Parish, Louisiana, restraining Mondy from prosecuting this action at law. The proceeding was under Louisiana Act No. 179, of 1918, reading: "Where the defendant in any suit or proceeding has his legal domicile in the parish where a suit is pending but has no agent or other legal representative in the parish, and no fixed place of residence, with a person living there competent to receive service of process, and is shown by proof to the court to be in another State, then the court on proper application may appoint a curator ad hoc to represent him, and upon whom service may be made." Section 1 (15). There was no personal service of process on Mondy. The judgment was rendered October 24, 1942. Mondy contends that the facts do not bring her within that statute; but whether that be true or not, if issues were joined and proof taken thereon, we do not think that injunction can be made the basis for obtaining another injunction in this proceeding for these reasons:
1. This record does not show what consideration, if any, was given, or should have been given, this contention by the chancellor. The proceedings in the Louisiana court are presented in this cause as exhibits to a supplemental bill herein, which recites that it was filed after leave of the court had been obtained, but no order granting such leave is in the record. Nor is the date of the filing of this supplemental bill shown. The affidavit to it is dated October 28, 1942. That was the day this cause was tried before the chancellor. There is no process on, nor answer to, the supplemental bill. The final decree does not mention it. That decree mentions only the bill. We cannot put the chancellor in error on this, if there was error, when it is not shown it was properly a part of the case and was presented to and heard and considered by him.
2. But, conceding the validity of the injunction proceeding, we do not think that injunction can be made the ground or the issuance of another injunction here. Its validity and effect are matters to be, and properly may be, pleaded and contested as a defense in the law action, and, as to that, the Transit Company has an adequate remedy at law.