Sanders v. Atlas Assur. Corp., 1125

• Decision Date: 01 July 1963
• Docket Number: No. 1125,1125
• Citation: 156 So.2d 245
• Parties: Carolyn Faye NICHOLSON, wife of Luther Jerry SANDERS v. ATLAS ASSURANCE CORPORATION et al.
• Court: Court of Appeal of Louisiana — District of US

Page 245

156 So.2d 245

Carolyn Faye NICHOLSON, wife of Luther Jerry SANDERS v. ATLAS ASSURANCE CORPORATION et al.

No. 1125.

Court of Appeal of Louisiana, Fourth Circuit.

July 1, 1963.

Rehearing Denied Oct. 2, 1963.

Certiorari Refused Dec. 16, 1963.

Burglass & Burglass, Harry A. Burglass, Metairie, for plaintiff-appellant.

Lemle & Kelleher, Shirley C. Friend, Jr., New Orleans, for defendants-appellees.

Before REGAN, YARRUT and HALL, JJ.

HALL, Judge.

Plaintiff brought this suit against her husband and his public liability insurer for damages for personal injuries suffered by her in an automobile accident. The accident occurred in the state of Mississippi and the suit was instituted in the Civil District Court for the Parish of Orleans, Louisiana. Defendants filed an exception of no cause or right of action which was maintained by the Trial Court and judgment was entered dismissing plaintiff's suit. Plaintiff appealed.

Plaintiff's petition alleges that the accident occurred on or about May 13, 1960 on Highway 15 about three miles south of Newton, Mississippi, while she was a passenger in an automobile owned and operated by her husband; that she received her injuries when the automobile left the highway and plunged down an embankment and that the accident was caused by her husband's negligence in exceeding the speed limit, failing to keep a proper lookout and in failing to maintain proper control over the automobile.

Defendants based their exception of no cause or right of action on the following contentions:

(a) That under the law of Mississippi, which is controlling, a wife may not sue her husband for torts committed during coverture.

(b) That Mississippi has no direct action statute and that under Mississippi law a claimant must file suit and exhaust all remedies against the insured before he can bring suit against the insurer, and that since no action may be prosecuted by the wife against her husband under Mississippi law none may be had against the husband's insurer.

(c) That the Louisiana Direct Action Statute is unavailing to plaintiff since the accident occurred in Mississippi.

Plaintiff does not dispute defendants' contention that under Mississippi law a wife may not sue her husband for torts committed during coverture. On this point see the decisions of the Supreme Court of Mississippi in the following cases: Ensminger v. Ensminger, 222 Miss. 799, 77 So.2d 308; Durham v. Durham, 227 Miss. 76, 85 So.2d 807; Tobias v. Tobias, 225 Miss. 392, 83 So.2d 638; nor does plaintiff dispute defendants' contention that under Mississippi law she would have no right of action either directly or otherwise against the husband's insurer. See discussion of the Mississippi law in Burke v. Massachusetts Bonding & Ins. Co., 209 La. 495, 24 So.2d 875.

Plaintiff contends for two propositions. First, she contends that her capacity to sue her husband should not be determined by the law of Mississippi but by the law of Louisiana. Second, she contends that the law of Louisiana allows or should allow a married woman to sue her husband for torts committed during the marriage where 'the marriage benefits from the action.'

Plaintiff argues that under European Civil Law authorities and under some of the more modern Common Law authorities the capacity of husbands and wives to sue one another is determined neither by the Lex fori nor the Lex deliciti but by the place of the matrimonial domicile, and in the instant case the matrimonial domicile of the parties is in Louisiana.

However intriguing plaintiff's theory may be we are obliged to follow the well settled jurisprudence of this state. In Burke v. Massachusetts Bonding & Ins. Co. supra where there was a legal and factual situation entirely similar to the one presented here, our Supreme Court said:

'Where the action is brought in one jurisdiction for a tort committed in another the rights and liabilities of the parties are determined by the laws of the place where the wrong is committed and not by the laws of the place where the right of action is asserted. 11 American Jur., sec. 490, p. 182; (11) American Law Institute, Conflict of Laws, sec. 384, p. 470. In the latter comprehensive work the rule is concisely stated as follows: 'If no cause of action is created at the place of...