Thomas v. St. Patrick's Hospital

• Decision Date: 25 April 1973
• Docket Number: No. 4149,4149
• Parties: Joyce THOMAS, Plaintiff-Appellant, v. ST. PATRICK'S HOSPITAL and Argonaut Insurance Company, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 749

276 So.2d 749

Joyce THOMAS, Plaintiff-Appellant, v. ST. PATRICK'S HOSPITAL and Argonaut Insurance Company,

Defendant-Appellee.

No. 4149.

Court of Appeal of Louisiana, Third Circuit.

April 25, 1973.

Donald M. Fendlason, Bogalusa, for plaintiff-appellant.

John W. Anthony and Lawrence R. Anderson, Jr., Talley, Anthony, Hughes & Knight, Bogalusa, for defendant-appellee.

Before SARTAIN, BLANCHE and EVERETT, JJ.

EVERETT, Judge.

This is a suit for personal injuries filed by Willmon H. Magee against Allstate Insurance Company in the Twenty-second Judicial District Court for the Parish of Washington. It is alleged that petitioner and his wife, residents of Bogalusa, Louisiana, were involved in an automobile accident in Walthall County, Mississippi. Petitioner was a guest passenger in the family owned pick-up truck being driven by his wife, Myrtle L. Magee. Suit was filed under the Direct Action Statute against Allstate in the State of Louisiana.

An Exception of No Cause or Right of Action was filed on behalf of the defendant, contending that under Mississippi law a husband does not have either a cause or a right of action against his wife and, consequently, he has no right to sue the insurance carrier.

The trial judge, without assigning written reasons for judgment, maintained the exception and dismissed the plaintiff's suit with prejudice at his costs. A devolutive appeal was taken to this court .

We affirm the decision of the district court.

It is argued by the appellant that, as a result of LSA-R.S. 22:655 and the insurance contract between Mr. Magee and Allstate, substantive rights have been conferred on Mr. Magee in Louisiana, thereby negating the Mississippi law that is set forth in Ensminger v. Ensminger, 222 Miss. 799, 77 So.2d 308 (1955), i.e. that under Mississippi law there is no liability as between husband and wife for a personal tort against the other. We reject this argument. The case of Johnson v. St. Paul Mercury Insurance Company, et al, 256 La. 289, 236 So.2d 216 (1970) was presented with the identical question and held that the rights and liabilities of the parties are determined by the laws of the place where the wrong was committed. It is the doctrine of lex loci delicti. The court held in the Johnson case that the existence of a liability insurance policy does not create a cause of action where none exists otherwise. A person can not recover in tort unless he has been given by some law a cause of action in tort and this cause of action can be given only by the law of the place where the tort was committed. Here, there is no cause of action in Mississippi so there can be...