Stephenson v. List Laundry & Dry Cleaners, Inc.

Decision Date29 April 1935
Docket Number33343
Citation182 La. 383,162 So. 19
PartiesSTEPHENSON v. LIST LAUNDRY & DRY CLEANERS, Inc., et al
CourtLouisiana Supreme Court

Judgment annulled, rule nisi made absolute, writs perpetuated, and case remanded with directions.

Irion &amp Switzer and Malcolm E. Lafargue, all of Shreveport, for relator.

Barksdale Bullock, Warren, Clark & Van Hook, of Shreveport, for respondents.

FOURNET Justice. O'NIELL, Chief Justice.

OPINION

FOURNET, Justice.

Relatrix, in her capacity as natural tutrix of her minor child, filed suit for damages against List Laundry & Dry Cleaners, Inc., a Louisiana corporation doing business in the state of Texas, and its assurer, Central Surety & Insurance Corporation, a Texas corporation, authorized to do business in the state of Louisiana, in solido. She alleged that her minor son received personal injuries as a result of the negligence on the part of the driver of a truck which belonged to defendant, List Laundry & Dry Cleaners, Inc.

The insurance carrier is made a party defendant under the provisions of Act No. 55 of 1930.

Respondent List Laundry & Dry Cleaners, Inc., filed an exception of vagueness and the Central Surety & Insurance Corporation filed a plea of lis pendens and both defendants filed, jointly, the following exceptions:

"Now into court comes defendants and with respect show that they are improperly joined for the reason that the action against one is on alleged tort and against the other is on alleged contract of insurance.

"And defendant Central Surety and Insurance Corporation shows further:

"(a) The alleged contract is to indemnify the insured if and when the latter may be cast in a final judgment for a liability within the terms of the contract and on which no action lies, by express provision of the contract, until a judgment shall have been thus obtained against the insured.

"(b) The contract contains no provision whereby the insurer may be sued jointly with the insured.

"(c) Said contract was issued and delivered in the State of Texas, insuring primarily against liability arising from the operation of certain described vehicles usually kept and operated in the State of Texas, and is governed by the law of Texas.

"(d) The law of Texas does not authorize a joint action against the insurer and the insured for an insured liability, nor require that insurance policies so provide.

"(e) The Louisiana statute in that respect is not applicable and the courts of the state are without jurisdiction to enforce it with respect to a policy issued and delivered out of the state."

The record does not show whether the exception of vagueness and the plea of lis pendens were disposed of by the trial judge. He overruled the exception of misjoinder but sustained the plea to the jurisdiction. This matter is now before us for review on writs granted by this court.

The plea of misjoinder was based on the proposition that the plaintiff's cause of action against List Laundry & Dry Cleaners, Inc., was one arising in tort and the action against the insurance carrier was based on the insurance policy and was, therefore, ex contractu. We think the trial judge was correct in overruling this exception. See Stephenson et al. v. New Orleans Ry. & Light Co. et al., 165 La. 132, 115 So. 412.

The exception to the jurisdiction was maintained by the district judge, who based his reasons therefor on the case of Lowery v. Zorn, 157 So. 826, rendered by the Court of Appeal for the Second Circuit of Louisiana, and Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S.Ct. 634, 636, 78 L.Ed. 1178, 92 A. L. R. 928.

The trial judge fell into the same error as the Court of Appeal did in the case of Lowery v. Zorn, supra, in maintaining the exception to the jurisdiction. The Hartford Case, supra, is not authority in support of his contention but rather against same. The Supreme Court of the United States, in that case, held:

" A legislative policy which attempts to draw to the state of the forum control over the obligations of contracts elsewhere validly consummated and to convert them for all purposes into contracts of the forum, regardless of the relative importance of the interests of the forum as contrasted with those created at the place of the contract, conflicts with the guaranties of the Fourteenth Amendment. AEtna Life Ins Co. v. Dunken, supra [266 U.S. 389, 45 S.Ct. 129, 69 L.Ed. 342]; Home Ins. Co. v. Dick, supra [281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926, 74 A. L. R. 701]. Cases may occur in which enforcement of a contract as made outside a state may be so repugnant to its vital interests as to justify enforcement in a different manner. Compare Bond v. Hume, 243 U.S. 15, 22...

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