Robbins v. Short
| Decision Date | 28 January 1936 |
| Docket Number | 1561 |
| Citation | 165 So. 512 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | ROBBINS v. SHORT et al |
Pugh & Buatt, of Crowley, for appellant.
Welton P. Mouton, of Lafayette, for appellees.
Plaintiff sues to recover damages in the sum of $ 10,000 which she claims to have sustained in an automobile accident on June 13, 1933, in the parish of Lafayette, on the Old Spanish Trail Highway No. 90. She avers that the said accident resulting in her injuries was caused by the negligence of the defendant, Mrs. Short, in running into the side of a bridge or against a post while plaintiff was riding in the automobile as an invited guest of Mrs. Short; that Mrs. Short was driving the car which belonged to her husband Thompson Short, with his permission and consent. Both Mr. and Mrs. Short are made defendants in the suit. As both of these defendants are nonresidents of state, they were cited through the secretary of state under Act 86 of 1928, as amended.
The Maryland Casualty Company of Baltimore, an insurance company authorized to do business in Louisiana, was joined in the suit as an insurer of the owner of the car in the sum of $ 5,000, and this company was cited through the secretary of state and judgment asked for against it in that amount. This insurance company filed an exception of misjoinder, which exception was sustained, and the suit dismissed as to the insurance company. Plaintiff has appealed from that judgment, and the appellee has filed a motion in this court to dismiss the appeal.
On Motion to Dismiss.
On June 26, 1935, plaintiff secured an order of appeal suspensive and devolutive, returnable to this court in 50 days from that date. Under that order of appeal no bond was filed by the appellant, nor was the transcript filed in this court within the time fixed in the order. On August 27, 1935, plaintiff obtained an order for a devolutive appeal returnable to this court on September 28, 1935, in which order the appellee was ordered to be cited to answer the appeal. Counsel for appellee accepted service of the order and citation of appeal on August 29, 1935. The bond fixed in this order was filed August 30, 1935, and the transcript was filed in this court in due time.
The motion to dismiss is based on the failure of appellant to perfect the first order of appeal by filing the transcript in this court within the time fixed in the order, appellee claiming that this failure to perfect said appeal operated as an abandonment of same.
Until the bond for an appeal is filed, there is no appeal to abandon. Appellant had never filed a bond to perfect the first order of appeal, and when he obtained the order for the devolutive appeal on August 27, 1934, the situation was the same as though no order of appeal had ever been granted. The order for the devolutive appeal was well within the year. This motion to dismiss is controlled by the decision in the case of Vacuum Oil Co. v. Cockrell, 177 La. 623, 148 So. 898. The motion to dismiss the appeal is overruled.
Merits.
The exception of misjoinder filed by the Maryland Casualty Company and sustained by the trial court was based on the ground that the policy by which this insurance company obligated itself to hold Thompson Short, the owner of the car, harmless by reason of any claims for damages in the operation of the car was confected in the state of Missouri between the insured and the insurer and the contract was therefore a Missouri contract governed by the laws of that state; that said insurance policy contained a clause to the effect that no action would lie against the company to recover for any loss or damage under the policy until the amount of the loss or claim had been fixed by a judgment of court against the assured or by agreement of the parties with the written consent of the company, nor in any event unless the action was brought within two years after the judgment or agreement. That no action can be maintained against the company by this plaintiff on said policy until the above requirement has been complied with, and, therefore, plaintiff's petition does not set forth a right or cause of action against the company; that in so far as Act No. 55 of 1930 attempts to give plaintiff a right to join the insurer in an action against the insured for damages for the negligent operation of the car, said act is unconstitutional, null, and void as said act cannot have any extraterritorial effect, the said contract of insurance between said company and the insured, Short, being governed by the laws of Missouri, where the stipulation above referred to is legal and binding.
As it appears from the depositions of two lawyers in Missouri that, under the laws of that state, the insurance company which has written a policy of automobile liability insurance cannot be joined initially with the assured in an action of damages, and as the provision in the policy stipulated that no action could be brought on the policy until a judgment was first obtained against the assured, it follows that plaintiff cannot join this insurer with the assured, Short, in this action if the law of Missouri and the provision in the policy are to control. The learned judge of the lower court gave a very elaborate written opinion in sustaining the exception of misjoinder, basing his judgment on the ground that the contract is governed by the laws of Missouri where it was made, and where the provision in the policy is binding and enforceable. He held that Act No. 55 of 1930 permitting a third person to join the insurer in an action against the assured for damages in a case of this kind only applied to contracts of insurance governed by the laws of Louisiana and consequently, the act could not apply where the contract must be governed by the laws of another state.
In the policy of insurance which the defendant company wrote in Missouri in favor of the defendant, Short, the company insured Short against liability for accident and injury by reason of the operation of the automobile in question within the United States or Canada, and further agreed to defend all suits filed against Short, the insured, even if groundless and to pay the expenses incident to the defense of said suits. As Short is now being sued on a claim arising in Louisiana by reason of the alleged negligent operation of said car, the insurance company, by the terms of its own contract, is obligated to defend that suit now pending in a competent court of this state. Moreover, we do not understand that the defendant...
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