Mock v. Maryland Cas. Co.

Decision Date16 February 1942
Docket Number17647.
Citation6 So.2d 199
CourtCourt of Appeal of Louisiana — District of US
PartiesMOCK ET AL. v. MARYLAND CASUALTY CO.

Rehearing Denied March 16, 1942.

Adam H. Harper, of New Orleans, for plaintiffs-appellants.

Rosen Kammer, Wolff & Farrar, of New Orleans, for defendant-appellee.

JANVIER Judge.

This is an appeal by plaintiffs from a judgment dismissing on exception of no right of action their suit for damages for the death of their brother, John A. Mock, who died on March 15, 1936, as the result of physical injuries or drowning caused by an automobile accident in which the car in which he had been riding as a guest passenger was being driven by Frank Weiland, who, at the time, was an employee of L. B. Price Mercantile Company.

According to the original and supplemental petitions the Price Company secured from Maryland Casualty Company of Baltimore a policy of public liability insurance under which the said Company agreed to indemnify and hold harmless against liability for damage caused by automobiles, the said Price Company and those individuals who might be named in any participation certificates which might be issued. Such a participation certificate had been issued in the name of Weiland prior to the accident in which Mock was killed.

The accident was caused solely by negligence of Weiland.

Both Mock and Weiland were citizens of Louisiana and it is alleged that the participation certificate in the name of Weiland had been delivered in New Orleans.

Plaintiffs are a brother and a sister of the said John A. Mock, and they allege that they "are the only surviving relatives of the deceased, John A. Mock, and were his only survivors on said date of March 15th, 1937, deceased having left surviving him, no ascendants, descendants, brothers, sisters, adopted children or a surviving spouse other than petitioners."

It is also alleged--and the exception is founded on this allegation--that the accident occurred in the State of Texas. This exception challenges the right of plaintiffs to maintain an action for the death of their brother since the laws of the State of Texas, Vernon's Ann.Civ.St. Tex. arts. 4671-4678, do not permit recovery by brothers or sisters for wrongful death of a brother or of a sister.

In the exception itself the laws of the State of Texas on the subject are set forth, and it is conceded by counsel for plaintiffs that they are correctly set forth therein. We therefore find it unnecessary to quote either the laws themselves or the jurisprudence which is set forth in the exception and in the briefs.

Counsel for plaintiffs maintain that since the two persons who were involved in the accident, to-wit, Weiland and Mock, were both citizens of Louisiana, and since the certificate of insurance was delivered in Louisiana, the rights of the parties are controlled by the laws of Louisiana and not by those of the State of Texas, and that because by Act 55 of 1930 plaintiffs are given the right to bring suit directly against the insurer of the person whose negligence caused the accident, plaintiffs may recover in Louisiana and under the laws of Louisiana. Counsel's argument is that because of the effect of that statute, there has been created a contract between plaintiffs and the Insurance Company, or at least a stipulation "pour autrui" in favor of plaintiffs, and that therefore their suit is one sounding in contract and that the rights of the parties thereto should be determined under the laws of the state in which that contract was entered into.

It is conceded by counsel for plaintiffs that had they sued Weiland their rights as against him would have been controlled by the laws of the State of Texas.

Even if the Act of 1930 created any substantive rights in plaintiffs, the contract of insurance contained no provision which by any stretch of the imagination could be construed as rendering the insurer liable in any case in which the insured would not himself have been liable. The policy stipulated in Clause A that it would protect the insured "against loss from liability imposed by law" and it is clear and has been conceded that so far as Weiland is concerned the law--that of Texas--imposes on him no liability in favor of plaintiffs for the death of their brother.

The legal situation is not the same as that presented in Rome v. London & Lancashire Indemnity Company of America, La.App., 169 So. 132, nor is it the same as that found in Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191, and Palmer v. Edwards, La.App., 155 So. 483, rehearing denied La.App., 156 So. 761. Nor is it the same as was found in Ruiz v. Clancy, 182 La. 935, 162 So. 734, for in each of those cases it was held that the only reason for which there might be recovery from the insurer, though not from the insured, was that the insured enjoyed an immunity which was personal and of which immunity the insurer could not take advantage. But in each of those cases the insurer was held liable because the court found that the insured too would have been liable but for the immunity. Here there would have been no liability in Weiland because the law gave no rights under the circumstances, and since the law gave no rights against Weiland, the Act of 1930 gave none either. As we have said, that statute created no substantive rights. See Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., Inc., 18 La.App. 725, 138 So. 183; Gager v. Teche Transfer Co., Inc., La.App., 143 So. 62; Tuck v. Harmon, La.App., 151 So. 803; Robbins v. Short, La.App., 165 So. 512, and Graham v. American Employers' Ins. Co., La.App., 171 So. 471.

In Tuck v. Harmon, La.App., 151 So. 803, 805, the court said: "The right granted under Act No. 55 of 1930 was procedural and not substantive." Citing Gager v. Teche Transfer Co., La.App., 143 So. 62.

In Graham v. American Employers' Ins. Co., La.App., 171 So. 471, 476, the court, referring to the Act of 1930, said: "The act in question does not furnish substantive rights. Its benefits are procedural in nature.", and in that case the court also said: "* * * the statute merely gives a right of action against the insurer when the claimant has a cause of action against the insured."

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