Johnson v. St. Paul Mercury Ins. Co.

Decision Date07 January 1969
Docket NumberNo. 11137,11137
Citation218 So.2d 375
PartiesBessie JOHNSON, Plaintiff-Appellant, v. ST. PAUL MERCURY INSURANCE COMPANY et al., Defendants-Appellees.
CourtCourt of Appeal of Louisiana — District of US

Love, Rigby, Donovan, Dehan & Love, Shreveport, for appellant.

Mayer & Smith, Shreveport, for appellees.

Before AYRES, BOLIN and PRICE, JJ.

BOLIN, Judge.

This case arises out of an automobile accident occurring at approximately 8:40 a.m. on June 11, 1966, near Beebe, Arkansas. Plaintiff, Mrs. Bessie Johnson, while a guest passenger in an automobile owned and driven by Mr. Harley DeMoss, was injured when the DeMoss vehicle struck the rear of a vehicle driven by Leon Rutledge of Newport, Arkansas. Both Mrs. Johnson and Mr. DeMoss are Louisiana residents and the car of the latter was registered in Louisiana and insured by St. Paul Mercury Insurance Company. The damages sued for by Mrs. Johnson were alleged caused by the negligence on Mr. DeMoss and he was joined with his insurer as defendant in the suit. From judgment favoring defendants plaintiff appeals.

Pretermitting for the time a discussion of Mrs. Johnson's injuries we will proceed to the legal questions which must first be determined.

It is admitted by defendants in brief that, should the law of Louisiana be applicable, Mr. DeMoss was guilty of negligence and no question would arise as to insurance coverage or liability. As a consequence of this admission we consider the only remaining question to be whether the law of Louisiana or that of Arkansas is applicable. Secondly, should we determine Arkansas law is applicable we must examine all the facts to determine if there is sufficient proof of negligence to impose liability on defendants under the so-called Arkansas Guest Statute:

'No person transported as a guest in any automotive vehicle upon the public highways or an aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft, unless such vehicle or aircraft was wilfully and wantonly operated in disregard of the rights the of others.' Arkansas Statutes, Section 75--913 (Act 61 of 1935).

The trial judge assigned no written reasons for his judgment from which we conclude, in light of defendants' admissions, he applied the Arkansas tort law and found the actions of defendants did not constitute wanton and willful negligence when measured by the standard of care established by cases interpreting the quoted statute.

Appellee contends the decision of the lower court was correct and that the jurisprudential law of Louisiana requires application of the substantive law of the place where the tort is committed to determine whether the courts will impose liability on the tort-feasor under the facts of the case.

Opposing this contention appellant urges this court to follow the trend of recent jurisprudence from other jurisdictions and to apply the law of the forum where that court finds a substantial 'grouping of contacts' within its territorial area so as to justify departure from the formerly accepted rule. Appellant observes with acuity that Louisiana has many times given lip service to the earlier conflicts rule, i.e., the substantive law of the place of commission of the tort will be applied by a foreign forum, nevertheless, the issue has in fact never been squarely presented nor passed on as a 'conflicts' question.

This observation has lead us to scrutinize the Louisiana conflict of laws rule with regard to torts. We have been cited to numerous Louisiana cases which are alleged to have recognized as controlling the early common law conflicts rule that the law of the place where the tort is committed is the law to be followed in determining the degree of negligence necessary to fix liability.

In Mock v. Maryland Casualty Co., 6 So.2d 199 (La.App.Orl.1942) plaintiffs sued for damages for wrongful death of their brother resulting from a Texas accident. Under Texas law no liability was imposed on a negligent defendant in favor of persons suing for death of a brother and plaintiffs conceded that if they had sued the tort-feasor, Weiland, their rights against him would have been controlled by the law of Texas. However, they contended Act 55 of 1930 (the Louisiana 'long-arm' statute) gave them a direct action against the insuer of the person whose negligence caused the accident, arguing that by reason of the statute there had been created a contract between plaintiffs and the insurer.

They asserted, therefore, their suit was one sounding in contract and the rights thereunder should be determined by Louisiana law where the policy was delivered. The court rejected this reasoning and held the statute only afforded a remedy for recovery for the tort of the insured and whether a right was created in plaintiffs for a Texas tort was governed by Texas law, citing Blashfield, C.J.S., American Jurisprudence and the first Restatement of Conflict of Laws.

Since plaintiffs in the Mock case had conceded that Texas law would govern insofar as tort liability was concerned the court was not called upon to decide whether, having concluded the action was not created by a Louisiana contract, the Louisiana tort law would apply. Thus its pronouncement of the general rule, referred to by the quoted authorities, was not essential to a resolution of the case.

In Matney v. Blue Ribbon, Inc., 202 La. 505, 12 So.2d 253 (1943) our supreme court held: a married woman, domiciled in Texas, who was injured in an automobile accident in Louisiana could maintain an action in damages in Louisiana notwithstanding under Texas law her right of action was community property and recoverable only by her husband. The court repeated the oftquoted rule that in cases of tort, the law of the place where the wrong was committed is paramount and the law of the domicile will not ordinarily be recognized in such matters. In conclusion, the court stated:

'However, in exceptional circumstances where the law of domicile is not inimical to the public policy of the forum, the latter will recognize and enforce the law of domicile for reasons of comity.'

The supreme court purported to distinguish the rationale of Matney from the principle of law enunciated in the 1900 case of Williams v. Pope Manufacturing Co., 52 La.Ann. 1417, 27 So. 851, 50 L.R.A. 816, 78 Am.St.Rep. 390. In Williams a married woman domiciled in Mississippi, while sojourning with her daughter in Louisiana, was defamed, unlawfully arrested and imprisoned as the result of the wanton and illegal acts of defendant corporation, which was domiciled in Connecticut. Defendant urged the law of Louisiana (lex fori) should control and that at the time of suit a married woman could not sue in Louisiana in her own name for her injuries. The supreme court reversed the lower court and held: since the claim of Mrs. Williams was transitory in its nature and since it was a personal right to which she was entitled under the law of Mississippi the courts of Louisiana would entertain the suit filed by her in her own name, even though a married woman domiciled in Louisiana had no such right of action.

It is apparent from a reading of the two cases noted above the law of the domicile was applied in one while the law of the forum was applied in the other and in both instances the more liberal of the two was applied which permitted recovery in both.

In a case emanating from this court, Cone v. Smith, 76 So.2d 46 (La.App. 2 Cir. 1954) the court, apparently without objection on part of plaintiff, applied the Texas guest statute and found defendant's excessive speed was not the cause of the accident and rejected plaintiff's claim, citing as authority therefore 60 C.J.S. Motor Vehicles § 259; Restatement of Conflict of Laws, § 391, 378. It should be pointed out that in Cone plaintiff specifically set forth in his petition that defendant's excessive speed, his failure to keep his car under control and other acts of negligence would, if proved, constitute heedlessness or reckless disregard of the rights of others. The court commented in the opinion that the obvious purposes of the latter allegation was to expressly state a cause of action under the Texas guest statute. Here again the appellate court was not called upon to decide the conflicts point, it having been conceded by plaintiff that the only issues were whether he could recover under Texas law and his quantum of damages, if recovery was allowed.

Later, in Blount v. Blount, 125 So.2d 66 (La.App. 1 Cir. 1960) the court, following without question the decision in Cone, pointed out the parties stipulated the Texas guest statute, and the Texas cases interpreting it, controlled the determination of negligence in the case.

In Watkins v. Cupit, 130 So.2d 720 (La.App . 1 Cir. 1961) the court applied Louisiana law, both with regard to the degree of negligence and the liability of a Mississippi father for wrongful injury inflicted by his minor son, to an accident occurring in Louisiana, even though the father was domiciled in Mississippi under whose law the father would not be liable.

It was held a wife could not sue her husband in Louisiana for a tort committed in Mississippi since Mississippi allows no such action during marriage in Nicholson v. Atlas Assurance Corp., 156 So .2d 245 (La.App. 4 Cir. 1963). The court observed, however, that plaintiff would have fared no better if the Louisiana law was applied since no such action would be allowed here. In conclusion the court held:

'Neither could she maintain a direct action against her husband's insurer since the Louisiana Direct Action Statute is inapplicable to accidents occurring outside of this state . See LSA-R.S. 22:655; Honeycutt v. Indiana Lumbermens Mutual Ins. Co., 130 So.2d 770 (La.App. 3 Cir. ...

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4 cases
  • Johnson v. St. Paul Mercury Ins. Co.
    • United States
    • Louisiana Supreme Court
    • March 30, 1970
    ...right to recovery. This latter defense was sustained by the trial court. On appeal to the Second Circuit the judgment was reversed. 218 So.2d 375. We issued certiorari on defendant's application. 253 La. 872, 220 So.2d The trial court's decision was based upon the theory that the law of Ark......
  • Myers v. Government Employees Ins. Co., 43965
    • United States
    • Minnesota Supreme Court
    • December 27, 1974
    ...panel, two of whom had sat on the Finn case, indicated that the statute was basically substantive. Johnson v. St. Paul Mercury Insurance Company, 218 So.2d 375 (La.App.1969). However, this court regards the decision of the Louisiana Supreme Court in West v. Monroe Bakery, 217 La. 189, 46 So......
  • Etienne v. National Automobile Ins. Co., 98-1946.
    • United States
    • Court of Appeal of Louisiana — District of US
    • June 23, 1999
    ...interpreting prior law held that the insured was not required to be named as a party to the suit. See e.g., Johnson v. St. Paul Mercury Ins. Co., 218 So.2d 375 (La. App. 2 Cir.), writ granted, 253 La. 872, 220 So.2d 457 (1969), reversed on other grounds, 256 La. 289, 236 So.2d 216 (La. 1970......
  • Johnson v. St. Paul Mercury Ins. Co., 49732
    • United States
    • Louisiana Supreme Court
    • April 3, 1969

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