Burkett v. Globe Indemnity Co

• Decision Date: 23 May 1938
• Docket Number: 33102
• Citation: 181 So. 316,182 Miss. 423
• Court: Mississippi Supreme Court
• Parties: BURKETT v. GLOBE INDEMNITY Co

181 So. 316

182 Miss. 423

BURKETT v. GLOBE INDEMNITY Co

No. 33102

Supreme Court of Mississippi

May 23, 1938

Division A

Suggestion Of Error Overruled June 30, 1938.

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

Action by J. Robert Burkett against the Globe Indemnity Company and another for personal injuries sustained in an automobile wreck. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leathers, Wallace & Graves, of Gulfport, for appellee.

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

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

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

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