Hartford Accident & Indemnity Co. v. Delta & Pine Land Co.

• Citation: 150 So. 205,169 Miss. 196
• Decision Date: 09 October 1933
• Docket Number: 30445
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. DELTA & PINE LAND CO
• Court: United States State Supreme Court of Mississippi

150 So. 205

169 Miss. 196

HARTFORD ACCIDENT & INDEMNITY CO. v. DELTA & PINE LAND CO

No. 30445

Supreme Court of Mississippi

October 9, 1933

Division A

Suggestion Of Error Overruled November 6, 1933.

APPEAL from circuit court of Bolivar county, HON. Wm. A. ALCORN JR., Judge.

Action by the Delta & Pine Land Company against the Hartford Accident & Indemnity Company. From an adverse judgment defendant appeals. Affirmed.

United States Supreme Court reversed and remanded this case on April 9, 1934.

Affirmed.

William M. Hall, of Memphis, Tennessee, for appellant.

A contract is made at the time when the last act necessary for its formation is done, and at the place where that final act is done.

American Law Institute's Restatement of the Law of Contracts, section 74; Couret v. Conner, 118 Miss. 374, 392.

The law of the place where the contract is made governs its validity and interpretation, unless it is to be performed elsewhere.

Couret v. Conner, 119 Miss. 374, 392; 5 R. C. L., p. 931, sec. 25, p. 938, sec. 27; 12 C. J., p. 449, sec. 30, p. 451, sec. 34, p. 482, secs. 88 and 89; American Law Institute's Restatement of Law, Conflict of Laws, Tentative Draft No. 4, secs. 370 and 371.

When the contract is silent on the subject, the place of the making of the contract is presumed to be the place of performance.

Jones v. Perkins, 29 Miss. 139, 64 Am. Dec. 136; Pac. Mut. Life Ins. Co. v. Hale, 267 S.W. 282, 284.

Where a contract made and to be performed in one state, is sued upon in another state, the laws of the latter state govern the procedure in that suit.

5 R. C. L. 941, sec. 28; 12 C. J. 483, sec. 92.

Under the foregoing general rules it has been held, in states of the forum, in the case of life insurance contracts, upon facts similar to those appearing in the case at bar, that the law of the place where the contract was made, governs and determines the validity of suit limitation provisions in such contracts, notwithstanding the law of the forum prohibited and made invalid such provisions in contracts made there.

Clarey v. Union Central Life Ins. Co., 143 Ky. 540, 136 S.W. 1014, 33 L. R. A. (N. S.) 881; Union Central Life Ins. Co. v. Barnes, 194 S.W. 339; Dolan v. Royal Neighbors, 123 Mo.App. 154, 100 S.W. 500; Roberts v. Modern Woodmen, 133 Mo.App. 207, 113 S.W. 726.

These rules apply of course to fidelity bonds as they do to other insurance contracts.

25 C. J. 1092; Hare v. Nat. Surety Co., 49 F.2d 447, 456.

Where a contract made and to be performed in one state is sued upon in another state, the courts of the latter state must give full faith and credit to the laws of the state where the contract was made and performable, and cannot apply laws of the forum to add to or take from that contract, under article 4, section 1; Article 1, section 10; and section 1 of the Fourteenth Amendment, of the Constitution of the United States.

Aetna Life Ins. Co. v. Dunken, 266 U.S. 389, 69 L.Ed. 342; Home Ins. Co. v. Dick, 281 U.S. 397, 74 L.Ed. 926; Berry v. Lamar Life Ins. Co., 142 So. 445.

Sillers & Roberts, of Rosedale, for appellee.

The provision in the bond requiring any claim thereunder to be duly made upon the surety within fifteen months after the termination of the suretyship for the defaulting employee is not a valid provision under the laws of the state of Mississippi.

Section 2294, Code of 1930; Section 2575, Code of 1906; Standard Accident Ins. Co. v. Broom, 111 Miss. 409, 71 So. 653; General Accident & Assurance Co. v. Walker, 99 Miss. 404, 55 So. 51; Dodson v. Western Union Telegraph Co., 97 Miss. 104, 52 So. 693; Illinois Central R. R. Co. v. Jordan, 108 Miss. 140, 66 So. 406; Sovereign Camp v. Miller, 125 Miss, 502, 87 So. 892; Stuyvesant Ins. Co. v. Smith Motor Sales Co., 135 Miss. 585, 99 So. 575; Berry v. Lamar Life Ins. Co., 142 So. 425; New York Life Ins. Co. v. Alexander, 122 Miss. 813, 85 So. 93; United States Fidelity & Guaranty Co. v. Williams, 96 Miss. 10, 49 So. 742; Ballard v. U. S. F. & G., 150 S.W. 1; Union Central Life Ins. Co. v. Spinks, 119 Ky. 261, 83 S.W. 615, 69 L. R. A. 264; Union Central Life Ins. Co. v. Barnes, 194 S_ W. 339; Adams Express Co. v. Walker, 119 Ky. 121, 83 S.W. 106, 67 L. R. A. 412; Western Union Telegraph Co. v. Eubanks, 100 Ky. 591, 38 S.W. 1068, 36 L. R. A. 711.

The provision in the bond requiring any claim thereunder to be duly made upon the surety within fifteen months after the termination of the suretyship for the defaulting employee violates the law and public policy of the state of Mississippi.

13 C. J. 255, sec. 26; Ivey v. Lalland, 42 Miss. 444; Mahomer v. Hooe, 9 S. & M. 247; Hinds v. Brazelle, 2 How. 837; Mitchell v. Wells, 37 Miss. 235; Western Union Telegraph Co. v. Hill, 50 So. 248; Ascher & Baxter v. Edward Moyse & Co., 57 So. 299, 101 Miss. 36; Bothwell 4. Buckbee, 275 U.S. 274, 72 L.Ed. 277; Union Trust Co. v. Glosman, 245 U.S. 412, 62 L.Ed. 368; Augusta Bank v. Earle, 13 Pet. 519, 10 L.Ed. 274; Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606; Grosman v. Union Trust Co., 228 F. 610; Northern Pac. R. R. Co. v. Kempton, 138 F. 992; Parker v. Moore, 115 F. 799, 187 U.S. 644; Couch v. Hutchinson et al., 57 So. 75; Georgia Fruit Exchange v. Turnipseed, 62 So. 542; Atlantic Railroad Co. v. Beazley, 45 So. 761; Union Central Life Ins. Co. v. Spinks, 83 S.W. 615, 119 Ky. 261, 69 L. R. A. 264; 6 Words & Phrases (1st series) 5814; 4 Words & Phrases (2d series) 27; J. & S. Goodman v. Swett, 104 Miss. 228, 66 So. 535.

The validity and interpretation of the entire fidelity bond, including the fifteen month provision above referred to, is to be determined according to the laws of the state of Mississippi.

13 C. J. 250, 251; 5 R. C. L. 938, sec. 27; Middling Valley R. R. Co. v. Moran Bolt, etc., Mfg. Co., 80 Ark. 399, 97 S.W. 679, 10 Ann. Cas. 372; Section 5131, Code of 1930; Fidelity Mutual Life Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817; Stuyvesant Ins. Co. v. Smith Motor Sales Co., 135 Miss. 585, 99 So. 575; Aetna Life Ins. Co. v. Duncan, 266 U.S. 389, 69 L.Ed. 342.

The lex fori governs the limitation of action (the time within which a suit can be brought).

Wright v. Mordaunt, 77 Miss. 537; L. & N. R. R. Co. v. Pool, 72 Miss. 487, 16 So. 753; Y. & M. V. R. R. Co. v. Willis, 111 Miss. 303, 71 So. 563; Fisher v. Burke, 123 Miss. 718; Phillip v. Hicks, 73 So. 610, 112 Miss. 581; 14 R. C. L. 1418; 37 C. J. 729; 12 C. J. 483; Adams Express Co. v. Walker, 67 L. R. A. 412, 119 Ky. 121, 83 S.W. 106, 5 R. C. L. 941; Townsend v. Jemison, 9 How. 407, 13 L.Ed. 194; Hanger v. Abbott, 6 Wall. 532, 18 L.Ed. 939; Williard v. Wood, 164 U.S. 502, 41 L.Ed. 531; Great Western Telegraph Co. v. Purdy, 162 U.S. 329, 40 L.Ed. 986; Galliher v. State Mutual Life Ins. Co., 43 So. 833; Page on Contracts, sec. 3624.

The law is well settled that all questions relating to remedy are to be determined by the law of the forum.

Page on Contracts, sec. 3617; D'Antoni v. Teche Lines, Inc., 143 So. 415; Boothe v. Teche Lines, Inc., 143 So. 418; Ivey v. Lalland, 42 Miss. 444.

In Mississippi we have a statute (section 2294 of Mississippi Code of 1930) which provides that the limitation of actions in Mississippi shall not be changed in any way whatsoever by any contract stipulation.

Under the Mississippi statute such stipulations are declared to be void whenever they change or attempt to change the statute of limitations as prescribed by that state no matter where the contract is made or to be performed, and any attempt to enforce a stipulation of this sort, contained in any contract, in the courts of Mississippi will be denied.

Galliher v. State Mutual Life Ins. Co., 43 So. 833.

The identical question which is presented in this case was presented to the Supreme Court of Alabama in the Galliher case, supra, and the Supreme Court of that state held that the stipulation in the contract was void, even though the contract was made in a state other than the state where the suit was brought.

Also, see St. Louis & S. F. R. R. Co. v. Bryce, 110 S.W. 529; Southern Kansas Railroad Co. of Texas v. Burgess Co., 90 S.W. 189; National Surety Co. v. Architectural Decorating Co., 57 L.Ed. 221.

We do not think it is necessary to argue the question as to whether or not under the Federal Constitution, the courts of the state of Mississippi must give full faith and credit to the contract, because if the court holds that the fifteen month stipulation relates to adjective rights under the contract and not to substantive rights under the contract, then the Federal Constitution would not prevent this court from permitting the limitation of actions of Mississippi to be applied, or if the court should hold that the entire bond is a Mississippi bond, the validity and interpretation of which to be determined under the laws of Mississippi, then the Federal Constitution would not apply because the bond is a Mississippi bond and would be governed under the laws of this state.

It is a principle of universal acceptation in all civilized states that the statutes of one state do not operate extraterritorially.

Crippen, Lawrence & Co. v. Laighton, 69 N.H. 540, 46 L. R. A. 467.

Since statutes of limitation pertain to the remedy and not to the essence of contracts, an act extending the time for commencing suits is valid.

12 C. J. 1079; National Surety Co. v. Architectural Decorating Co., 57 L.Ed. 221; Ex parte Kemmler, 34 L.Ed. 524.

The due process clause can have no bearing on the case under consideration for the reason that the fifteen month stipulation in the bond relates to the remedy under the contract and not to substantive rights under the contract.

Campbell v. Holt, 29 L.Ed. 483.

Argued orally by W. C. Roberts, for appellee.

OPINION

McGowen, J.

A judgment was...