McArthur v. Maryland Casvalts Co.

• Decision Date: 06 February 1939
• Docket Number: 33441
• Citation: 184 Miss. 663,186 So. 305
• Court: Mississippi Supreme Court
• Parties: MCARTHUR v. MARYLAND CASVALTS Co

186 So. 305

184 Miss. 663

MCARTHUR v. MARYLAND CASVALTS Co

No. 33441

Supreme Court of Mississippi

February 6, 1939

APPEAL from the chancery court of Harrison county Hon. D. M RUSSELL, Chancellor.

Suit by Robert McArthur against the Maryland Casualty Company for personal injuries. From a decree sustaining a demurrer and dismissing the bill, plaintiff appeals. Affirmed.

Affirmed.

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...