McArthur v. Maryland Casualty Co. , 184 Miss. 663 ( 1939 )

Burkett v. Globe Indemnity Company (Miss.), 181 So. 316 (not yet reported in the State Reports), was rightly decided and should not be overruled. What I shall here say is merely supplementary to what was there said, and the opinion therein should be read in connection herewith. An interesting and well thought out review of that case by L.A. Wyatt, a student of the University of Mississippi, appears in 11 Miss. Law Journal 234, which may be read with profit, as also the comments thereon by O.B. Triplett, Jr., a member of the bar, in the same volume at

The case we have before us is a suit in equity by a citizen and resident of Harrison County, Mississippi, against the appellee, a foreign corporation doing business in Mississippi, to recover from it damages for an injury alleged to have been negligently caused him by the Gulf Coast Oil Company in Louisiana, to which company the appellee had issued a policy in that state insuring it against damages negligently inflicted by it on persons.

Act No. 55, Louisiana Laws of 1930, provides that when such a policy is issued: "that the injured person or his or her heirs, at their option, shall have a right of direct action against the insurer company within the terms, and limits of the policy, in the parish where the accident or injury occurred, or in the parish where the assured has his domicile, and said action may be brought either against the insurer company alone or against both the assured and the insurer company, jointly and in solido."

If this statute confers a right of action, it should be enforced by the courts of this state unless so to do would violate its public policy, Rest. Conflict of Laws, Sec. 607, Chicago, St. L. N.O.R. Company v. Doyle, 60 Miss. 977, and Travelers' Insurance Company v. Inman, 157 Miss. 810,126 So. 399, 128 So. 877; but not if it simply provides a procedure for the enforcement of a right of action otherwise conferred. Cf. Floyd v. Vicksburg Cooperage Company, 156 Miss. 567, 126 So. 395, wherein a Louisiana Statute was enforced which created a right of action unknown to our law and against the state's policy which the legislature has several times refused to change — a workman's compensation act creating liability without fault and which was "cribbed, cabined and confined" by administrative and procedural requirements. See Rest. Conflict of Laws, page 486, and 2 Beale, The Conflict of Laws 1317. The statute here under consideration in plain and unmistakable language confers a right of action by the injured person against the insurer in a policy of the character here under consideration and the Louisiana Courts so hold. Graham v. American Employers' Ins. Company (La. App.), 171 So. 471. But according to the controlling opinion herein, the statute confers no right of action but merely a procedure for enforcing such a right. That opinion does not determine as an original proposition whether this statute confers a right of action or merely a procedure to enforce such a right, but rests on the fact that the Louisiana Courts have said that it was remedial and procedural. It is true that the Louisiana Courts while saying that the statute confers a right of action have also said that it is remedial and procedural in character. This latter language was not used in connection with any conflict of laws rule, but mainly in cases wherein the validity and retroactive character of the statute was under consideration; but aside from that the universal rule is that the court of the forum determines for itself whether the right given by a foreign statute is one of substance or procedure. Rest. Conflict of Laws, Sec. 584; 3 Beale, The Conflict of Laws 1601. There is no peculiar magic in either the word "substance" or "procedure" and the line of demarcation between them is shadowy, but I have no doubt that if called on to construe a similar statute of this state this court would hold that a substantive right was conferred thereby — a right of action can be no other. What the statute here under consideration does is to obligate the insurer to pay the damages suffered by an injured person direct to him. This necessarily follows from the grant to the injured person of a right of action directly against the insurer. It is true that this right of action here given the injured person is on a cause of action which without the statute he would have had only against the person who inflicted his injury; Graham v. American Employers' Ins. Company, supra; but that is not the test under the conflict of laws rule, the test there is the right to an action on a given state of facts. A cause of action as distinguished from a right of action is merely the fact or facts out of which a right of action arises. 1 Am. Jur. Action, Sec. 8(c); Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316. The appellant's right of action against the appellee arises out of the facts which constitute his cause of action against the Gulf Coast Oil Company, plus the insurance policy and the Louisiana Statute. When a statute of another state confers a right of action for the recovery of a sum of money, here damages, that right, in a transitory action, will be enforced by the courts of another state. Rest. Conflict of Laws, Sec. 607, Comment a.

Where the question simply is who are proper and necessary parties to an action, the law of the forum governs, but when a right of action is expressly conferred against a designated party no such question arises.

In this day when the tendency is toward uniformity in the administration of justice among the states of our federal union, it is unfortunate that it should be held that the rights and obligations that inhere in this insurance policy vary because of the forum in which an action is brought for their enforcement. Rest. Conflict of Laws 699. The effect of what is here being held is to deny to a citizen of this state access to its courts for the enforcement of a right accruing to him under the laws of another state against a corporation doing business in this state. Whether this violates the full faith and credit clause of the Federal Constitution, U.S.C.A., Const. art. 4, sec. 1, I will not pause to inquire.

McGowen, J., concurs in this opinion.