Petition for Writ of Certiorari — Cook v. State Farm Insurance (No. 351)

‘an bee FL PATS 1

eauP” + ; THOURT. U. S ALG

IN THE —

Supreme Court of the United States

OCTOBER TERM, 1961

No. 35 ]

MRS. VIRGIE COOK,

Petitioner,

versus

STATE FARM INSURANCE COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

W. E. MORSE,

Plaza Building

Jackson, Mississippi

INDEX

Opinions Below

Jurisdiction

Questions Presented for Review

Constitutional Provisions and Statutes Involved

Concise Statement of the Case

Statement of the Case

Argument Amplifying Reasons Relied on for the

Allowance of the Writ

Conclusion

Certificate

14

Il

INDEX TO AUTHORITIES

Page

Banker's Ind. Co. v. Green,

Sth Cir. 181 Fed. 2d 1 10

Belanger v. Great Am. Ind. Co..

Sth Cir., 188 Fed. 2d 196 10

Bradford Elec. Light Co., Inc. v. Clapper,

. 286 U.S. 145, 160, 52 S. Ct. 571, 76 L. Ed. 1026,

82 ALR 696 paras. ae

Jackson v. State Farm Mutual,

211 La. 19, 29 So. 2d 177 oo

John Hancock Mutual Life Ins. Co. v. Yates (Ga.),

57 S. Ct. 129, 299 U.S. 178, 81 L. Ed. 106 ee

Kimball] v. Audubon Ins. Co..

103, So. 2d 529 (1958) Rea ee 6

Lumbermen’s Mutual Casualty Co. v. Elbert,

75 S. Ct. 151, 348 U.S. 48, 99

L. Ed. 60 (1954) 2, 6, 7, 3, 9

Maryland Cas. Co. v. Cushing,

74S. Ct. 608, 347 U.S. 409 (1954) Latte ae

McDowell v. National Surety Corp.,

68 So. 2d 189, 74 S. Ct. 867, 347 US. 995 .. 10

Miller v. Standard Ins. Co.,

199 La. 515, 526; 6 So. 2d 646, 649 ae

New Amsterdam Cas. Co. v. Soileau, 5th Cir.,

167 Fed. 767, ALR 2, 128; 336 U.S.

822, 69 S. Ct. 45, 93 L. Ed. 376 Pee

III

AUTHORITIES — (Continued )

Rome v. London & Lancashire Indemnity Co. of

America, 2a App.. 169 So. 132 -

Watson v. Employer's Liability Ins. Corp.,

75 S. Ct. 166, 348 U.S. 66, 99 L. Ed 74

West v. Monroe Bakery,

217 La. 189, 46 So. 2d 122 (1950)

OTHER AUTHORITIES

28 U.S.C. Section 1257 (3)

LSA:RS Title 22. Sec. 655

U. S. Const. Art. IV, Sec. 1

LSA - Rev. Stat. 1950, Sec. 22:655

LSA - Rev. Stat. 1950, Sec. 22:983

Vol. 4, ALR 2d 761

IN THE

UPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

No.

MRS. VIRGIE COOK,

; Petitioner,

~ versus

STATE FARM INSURANCE COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

TO THE HONORABLES, THE CHIEF JUSTICE AND AS-

SOCIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

Mrs. Virgie Cook, the petitioner herein, pravs that a writ

of certiorari issue to review the judgment of the Supreme

Court of the State of Mississippi entered in the above en-

titled case on the 27th day of March, 1961.

OPINIONS BELOW

The opinion of the Supreme Court of the State of Missis-

sippi has not yet been reported in tne state reports, but is

reported in advance sheet No. 2, 128 So. 2d 363, and is

printed in appendix A hereto, infra, page 15. The judgment

to

of the Supreme Court of the State of Mississippi is printed

in appendix A hereto, infra. page 26.

JURISDICTION

The judgment ef the Supreme Court of tiie viii of ~—

sissippi was entered on March 27, 1961 (infra, appendix A, p 26)

anu is a final judgment. No rehearing was requested or a

ed and an extension through 24 August was granted by J ustice

Black to petition for certiorari. The statutory provision be-

lieved to vonier on this court jurisdiction to ay oe See

ment in question by writ of certiorari is 28 U.S.C. $1257 (3).

QUESTIONS PRESENTED FOR REVIEW

The Supreme Court of the State of Mississippi in its epin-

ion and judgment referred to held that the Louisiana In-

surance Direct Action Statute (LSA:RS Tiile 22, $655) was

procedural only and conferred no substantive right which

could be enforced in the courts of the state of Mississippi

and held also that the decision of this court in Lumber-

men's Mutual Casualty Co. v. Elbert. 75 S. Ct. 151, 348

U.S. 48, 99 L. Ed. 60 (1954) did not affect the power of the

state court so to decide. This presents the question of

whether if a substentive foreign rule is embodied in a

statute and the court of forum erroneously decided tnat

the point involved is procedural rather than substantive,

thereby applying its own rule instead of the foreign statute,

there is a denial of full faith and credit to the foreign

statute under the Constitution of the United States, Art.

IV, §I.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Constitution of the United States, Art. IV, $I pre-

vides:

“Full faith and credit shall be given in each state

to the public acts, records, and judicial proceed-

ings of every other state. And Congress may by gen-

era! laws prescribe the manner in which such acts,

records and proceedings shal] be proved, and the

effect thereof.”

Louisiana Statutes Annotated, Revised Statutes, Title

22, § 655 provides: :

“The injured person or his or her heirs, at their

option, shall have a right of direct action against

the insurer within the terms and limits of the poli-

cy in the parish where the accident or injury oc-

curred or in the parish where the insured has his

domicile, and said action may be brought against

the insurer alone or against both the insured and

the insurer, jointly and in solido. This right of

direct action shall exist whether the policy of in-

surance sued upon was written or delivered in the

State of Louisiana or not and whether or not such

policy contains a provision forbidding such direct

action, provided the acgidunt or injurv occurred

within the State of Louisiana.* * * * It is the intent

of this Section that any action brought hereunder

shall be subject to all of the lawful conditions of

the policy or contract and the defenses whizn could

be urged by the insurer to a direct action brought

by the insured, provided the terms and conditions

of such policy or contract are not in violation of

the laws of this state.”

%

LSA-Rev. Stat. 1950, §22:655, as amended by Act 541 of the

Louisiana Legislature of 1950. As to the scope of this pro-

vision according to Louisiana courts, see Rome v. London

& Lancashire Indemnity Co. of America, Ia, app., 169 So.

132.

“No certificate of authority to do business in Lou-

isiana shall be issued to a foreign or alien liability

insurer until such insurer shall consent to being

sued by the injured person or his or her heirs in

a direct action as provided in Section 655 of this

Title. whether the policy of insurance sued upon

was written or delivered in the State of Louisiana

or not, and whether or not such policy contains a

provision forbidding such direct action, provided

that the accident or injury occurred within the,

State of Louisiana. The said foreign or alien in-

surer, shall deliver to the Secretary of State as a

condition precedent to the issuance of such author-

itv, an instrument evidencing such consent.”

>

LSA-Rev. Stat. 1950. $22:983, as amended by Act 542 of

the Louisiana Legislature of 1950.

CONCISE STATEMENT OF THE CASE

Mrs. Virgie Cook as surviving spouse of John R. Cook,

deceased brought suit in the Circuit Court of Lamar Coun-

ty, Mississippi. against the State Farm Insurance Company

and others, as comprehensive automobile liability insurance

carrier of a 1954 Plymouth automobile operated by Ervin

Cook, on the 25th day of October, 1959, for the wrongful

death of her husband for injuries arising from the alleged

negligent operation of an automobile by the defendant’s

insured.

The declaration alleged that the defendant insurance

company had complied with Louisiana Statutes Annotated,

Revised Statutes 22:983 which required insurance com-

panies to consent to be sued directly by an injured party

and also pled specially the direct action statute of the State

of Louisiana and alleged that thereunder plaintiff was en-

titled to bring this action in Mississippi.

The defendant moved to dismiss on the ground that there

was no right or authority for a direct action against a col-

lision insurance carrier under the laws of the State of

Mississippi and that no effect should be given to the law

of the State of Louisiana because the same was procedural

rather than substantive.

The motion to dismiss was sustained on the 21st day of

July, 1960. by the Circuit Judge on the theory that no direct

action against the insurance carrier exists in the state of

Missi§sippi.

A direct appeal was taken to the Supreme Court of the

State of Mississippi where the plaintiff contended that full

faith and credit should be given to the Louisiana Act and

the decision of the Supreme Court of the State of Louisiuna

in West v. Monroe Bakery, 217 La. 189, 46 So. 2d 122 (1950);

6

Kimball v. Audubon Insurance Company, 103 So. 2d 529

(1958) and in conformity with the decision of the court in

Lumbermen’s Mutual Casualty Company v. Elbert, 75 S.

Ct. 151, 348 U.S. 48, 99 L. Ed. 60 (1954) and Watson v.

Employers’ Liability Insurance Corporation, 75 S. Ct. 166,

348 U.S. 66.

STATEMENT OF THE CASE

On October 25, 1959, John R. Cook, husband of petitioner,

was killed in an automobile accident in the State of Lou-

isiana.

On June 1, 1960, petitioner brought suit for wrongful

death against State Farm Insurance Company, alleging that

State Farm Insurance Company was the automobile lia-

bility insurance carrier of Ervin Cook on the date of the

fatal accident and that the negligence of Ervin Cook was

responsible for the death of John R. Cook so that under

LSA:RS 22:983 and LSA:RS 22:655 plaintiff was entitled

to bring a direct action against the insurance company and

that the said direct action statutes were entitled to full

faith and credit in the courts of the State of Mississippi as

well as Louisiana.

The defendant insurance company moved to dismiss on

the ground that the Louisiana direct action statute was

procedural only and thus had no extra-territorial effect.

This judgment was sustained by the Circuit Court cn the

2lst day of July, 1960, and this position on appeal was

sustained by the Supreme Court of the State of Mississippi

holding that the decisions of this court in Lumbermen’s

Mutual Casualty Co. v. Elbert, 75 S. Ct. 151, 348 US. 48,

7 ‘

99 L. Ed 60 (1954) and Watson v. Employer's Liability

Insurance Corp., 75 S. Ct. 166, 348 U.S. 66, 99 L. Ed 74 did

not contro! and that the Louisiana Direct Action Statute

was procedural only.

The Federal question was first raised in the brief of the

appellant citing Watson v. Employers’ Liability Insurance

Corp., 75 S. Ct. 166, 348 U.S. 66. 99 L. Ed 74, and Lumber-

men’s Mutual Casualty Co. v. Elbert, 75 S. Ct. 151, 348 U.S.

48, 99 L. Ed 60 (1954) and in the brief of the appellee in

seeking to avoid the effect of the full faith and credit clause

of the constitution and of the decisions of this court on

pages 14 and 15 of the brief of the appellant, State Farm

Mutual Insurance Company, as follows:

“The last case cited by the opposition from which

there is a quotation is that of Lumbermen’s Mu-

tual Casualty Company v. Elbert, 99 L. Ed 58, 348

U.S. 48, 75 S. Ct. 151. That case arose in the State

of Louisiana but was filed in the Federal Court

and not in the State court and the issues there in-

volved had to do with whether or not the statute

must be strictly construed and the case must be

tried in a Louisiana district court. Oddly enough,

this case was decided in 1954. Just as oddly, Chief

Justice Warren delivered the opinion. It is a little

on the side of irony that the Brown case dealing

with integration and the Elbert case were dumped

upon society by the same inexperienced judge in

the same year. The writer of this brief personally

doubts that the Chief Justice knew what he was

writing about. He surely showed no knowledge of

the Louisiana laws in the writing done. He is one

8

of those who believes strongly in a centralized gov-

ernment and has no patience with States’ rights

or the sovereignty of the several states. The con-

stitutionality of the Louisiana Act was raised. It

was pointed out in the briefs that the Louisiana Act

was remedial only. It was pointed out that the

mere mention of insurance to the jury constitutes

reversible erzor in most jurisdictions. Reference

was made to Vol. 4, A. L. R. 2d 761, dealing with

this general subject and how the courts of the

United States generally react thereto. It is just as

interesting to know that Justice Frankfurter wrote

a special concurring opinicn and it is interesting

enough to note that his observation that in Louisi-

ana, plaintiffs in negligence suits have suddenly

found the federal courts their protectors and in-

surance companies have discovered the virtues of

the state courts.’ No one would doubt that Justice

Frankfurter is a trained lawver, but he is indoc-

trinated with an idealogy distasteful to Mississip-

pians. In Justice Warren we are disappointed. For

fear that my own expressions may be contemptible

even to those who have read what the writer of

this brief thinks, no further discussion will be had

of the Elbert Case; but an analysis thereof does

not do good to the opposition here, even though

that therein contained is followed to the letter.”

Ti.¢ Supreme Court of Mississippi attempted to by-pass

the federal question and the decision of this court in Lum-

bermen’s Mutual Casualty Co. v. Elbert, 75 S. Ct. 151, 348

U.S. 48, 99 L. Ed 60 (1954) saying:

“The appellant also argues ti.at in the case of Lum-

bermen’s Mutual Casualty Company v. Elbert, 75 S.

Ct. 151, 358 U.S. 48, the Moited States Supreme

Court upheld the right of an injured third party

to bring a direct action based upon diversity of

citizenship against an insurance company not 1)

Louisiana, and that such party was not @ nominal

party but was the real party in interest. We do

not believe this case requires us to overrule the

McArthur case. supra. because of the following

general rules “nd cases on conflicts of law.”

ARGUMENT AMPLIFYING REASONS RE“.IF-D ON FOR

THE ALLOWANCE OF THE WRIT

In cases of Lumbermen’s Mutual Casualty Co. v. Elbert.

75 S. Ct. 151. 348 U.S. 48. 99 L. Ed 60 (1954+: Marvland

Casualty Co v. Cushing, 74 S. Ct. 608, 347 US. 409 11954),

Watson v. Employers’ Liability Insurence Corp., 75 S. Ct.

166, 348 U.S. 66, 99 L. Ed 74, it was held that the Louisiana

Direct Action Statute created federal substantive rights as

well as procedural rights. In the Elbert case the court said,

citing West v. Monroe Bukery, 217 La. 189, 46 Se. 2d 122.

and Jackson v. State Farm Mutual. 211 I. 19. 29 So. 2d

177:

“The state has created an optional right to proceed

directly against the insurer; by bringing the action

against the petitioner, respondent has apparently

abandoned her action against the tortfeasor. See

Miller v. Standard Insurance Company, 199 La.

515. 526, 6 So. 2d 646, 649. Thus a complete dis-

position of the entire claim may be made in this

10

one action, without injustice to any of the partici-

pants. Finally, petitioner contends that tne Fed-

eral Courts should decline, as a matter of discre-

tion, to exercise their jurisdiction over suits against

an insurer alone. This argument is based upon the

differing standards of review on appeal of tiie jurial

rate in the Louisiana and Federal Cour's. .. .”

@ * LJ *

“In Louisiana, the practice of bringing direct action

in the Federal courts has long been recognized.

See New Amsterdam Ciusualty Co. v. Sotieau, 5th

Cir., 167 Fed. 767,-6 ALR 2d 128, Certiorari de-

nied, 335 U.S. 822. 69 S. Ct. 45, 93 L. Ed 376; Bank-

ers Indemnity Co. v. Green, 5th Cir. 181 Fed. 2d 1;

Belanger v. Great Am. Indemnity Co., 5th Cir. 188

Fed. 2d 196. Neither Federal nor Lousiana law

suggests anv reason to disturb this practice. The

decision of the court of Appeals is affirmed.”

The State of Louisiana in West v. Monroe Bakery, 217

La. 189, 46 So. 2d 122: and Jackson v. State Farm Mutual,

211 La. 19. 29 Se. 2d 177. and in McDowell v. National

Surety Corp.. 68 So. 2¢ 189, Certiorari denied. 74 S. Ct.

867, 347 U.S. 995 held the Lovisiana direct action statute

to be substantive.

While it is within the competency of the court of the

forum, in this case, Mississippi, to determine what is matter

of procedure ard what of substance, that rule has the

limitation that if a substantive foreign rule is embodied in

a statute and the court of the forum erroneously decides

11

that the point involved is procedural rather than substan-

tive and thereby applies its own rule instead of the foreign

statute, thre is a denial of fu faith and credit to the foreign

statute, John Hancock Mutual Life Insurance Co. v. Yates

(Ga.) 57 S. Ct. 129, 299 U.S. 178, 81 L. Ed 106.

In the case of John Hancock Mutual Life Insurance Co.

v. Yutes, the Supreme Court of Georgia held that extra-

territorial effect would not be given to the law of New

York to the effect that a misstatement made in an appli-

cation for life insurance was a material misrepresentation

which would avoid the policy. The Georgia court held

that this was a question for the jury as to the materiality

of the misrepresentations and thus a matter affecting the

remedy only and in the validity from an effect of the con-

tract. Thus the full faith and credit clause of the Federal

Constitution did not compel application by Georgia of the

New York stitute, just as the Mississippi court reasoned

on the Louisiana Direct Action Statute. The United States

Supreme Court in that case said:

“The Statute of New York prescribes or limits the

things which will be affected to create binding

contracts of insurance . . . as construed by the

highest court of the state, the statute makes the

policy with the application annexed the entire

contract between the parties. And it declares that

a false answer in the application to the precise

question here involved is a material misrepresen-

tation which avoids the policy: and the fact that

a truthful answer was orally given to the answer

but not recorded is without legal significance. In

further declaring the statute enacts a rule of sub-

12

stantive law which became a term of the con-

tract. .. . To refuse to give that defense effect

would irremediably subject the company to lia-

bility. Cf Bradford Electric Light Company, Inc.

v. Clapper 286 U.S. 145, 160, 52 S. Ct. 571, 576, 76

L. Ed 1026, 82 ALR 696, because the statute is a

‘public act’, faith and credit must be given to its

provisions as fully as if the materiality of the

specific misrepresentation in the application and

the consequent nonexistence of liability, had been

declared by a judgment of the New York Court

... Reversed.”

With cefcrence we submit that the decisions of the

Supreme Court of t>e State of Louisiana construing the

Louisiana Direct Action statute to grant substantive rights,

the decisions of the Supreme Court of the United States

declaring the Louisiana direct action statute to grant sub-

stantive rights must be read into the Louisiana direct action

statute. As thus construed, the Louisiana statute granted

to the plaintiff in the case at bar a substantive right which

must be given full faith and credit in the courts of Mis-

sissippi. |

13

CONCLUSION

For the foregoing reasons this petition for writ of cer-

tiorari snould be granted. |

Respectfully submitted,

hal

W. E. MORSE

Plaza Building

Jackson, Mississippi

OF COUNSEL:

Morse & Morse

Box 393

Poplarville, Mississ'ppi

Joe Stevens

Citizens Bank Building

Hattiesburg. Mississippi

Car] E. Berry

106 West Front Street

Hattiesburg. Mississippi

14

CERTIFICATE

I certify that I have served a true and correct copy

of the foregoing Petition for Writ of Certiorari together

with accompanying index, opinion below, jurisdictional

statement and questions presented for review, constitu-

tional provisions and statutes involved, concise statement

of case and statement of the case, argument ampli-

fying reasons relied on for the allowance of the writ, and

conclusion upon Honorable M. M. Roberts, Citizens Bank

Building, Hattiesburg, Mississippi, Attorney for Respond-

ent, State Farm Mutual Insurance Company, personally

by delivering at his office at Citizens Bank Building, Hat-

tiesburg, Mississippi, a true and correct copy hereof.

This the 23rd day of August, A. D., 1961.

Of Counsel for Petitioner

15

APPENDIX A

iN THE SUPREME COURT OF MISSISSIPPI

| NO. 41,785

MRS. VIRGIE COOK

versus

STATE FARM MUTUAL INSURANCE COMPANY

RODGERS, JUSTICE:

Mrs. Virginia Cook filed her declaration in the Circuit

Court of Lamar County, Mississippi, alleging that hor

husband John R. Cook lost his life in an automobille ac-

cident which occurred on October 23, 1959. near Bogalusa,

Louisiana. Her husband was a passenger in an automo-

bile driven by Irving Cook which collided with an auto-

mobile operated by Kennard McConnico, a citizen off the

State of Texas. The defendant, State Farm Mutual Imsur-

ance Company, was the insurer of the automobile operated

by Irvin Cook. and the Allstate Insurance Company was

the insurer of the car of McConnico. The plaintiff is a

resident citizen of Lamar County and Irving Cook is a

resicent citizen of Washington County, Mississippi. Suit

was brought against the two above-named insurance com-

panies.

The defendant Allstate Insurance Company settled the

claim of the plaintiff and was properly released by order

of the court. The defendant State Farm Mutual Insurance

16

Company filed a motion asking the court to dismiss the

declaration against it on the grcunds that the defendant

insurance company could not be sued by direct action since

the law of the State of Louisiana permitting a suit against

the insurance cpmpany before judgment against the in-

sured is said to be procedural and has no extraterritorial

effect. The court sustained this motion and the case was

dismissed. The plaintiff made bond and the case is here

on appeal. It is argued on appeal that the defendant-

appellee insurance company was qualified to do business

in the State of Louisiana and in the State of Mississippi;

that the action is brought by the plaintiff-appellant un-

der Act No. 55, Louisigna Laws of 1930, The Direct Action

Statute of the State of Louisiana, and that this law is a

substantive law of the State of Louisiana ‘and is not a pro-

cedural law, and, therefore, the action against the defend-

ant, State Farm Mutual Insurance Company, could be

maintained in the Circuit Court of the State of Mississippi.

The action here involves the construction of Act No. 55,

Louisiana Laws of 1930, which is set out in full in the case

of Burkett v. Globe Indemnity Company, 182 Miss. 423,

181 Co. 316.

The Court later passed upon this question in the case of ©

McArthur v. Maryland Casualty Co., 184 Miss. 663, 186 So.

305, in which Judge McGehee, speaking for the Court, in

discussing a suggestion of error in the case of Travelers’

Insurence Company v. Inman, 157 Miss. 648, 128 So. 878,

quoted from that opinion as follows: “In administering the

laws of the State of Louisiana, of course, we are bound

by the construction given such laws by the Supreme Court

of Louisiana.” ‘Therefore, in view of the decisions of the

© Pee

17

Court of Appeals of Louisiana, hereinbefore referred to,

holding that Act No. 55 of 1930 is procedural and remed-

ial, and which we feel obligated to follow, whether we are

inclined to fully agree with that interpretation of the act

or not, it results that the same should be given no extra-

territorial effect * * * “. The plaintiff insists that the su-

preme Court of the State of Louisiana in the case of West,

et ux v. Monroe Baxery, Inc., et al., 217 La. 189, 46 So.

2d 122, was reexamined by the Supreme Court of the

State of Louisiana and that the Supreme Court held that

Act No. 55 of the Laws of 1930 conferred substantive

rights.

The appellant also argues that in the case of Lumber-

ton Mutual Casualty Company v. Elbert, 75 S. Ct..151, 358

U.S. 48, the United States Supreme Court upheld the right

of an injured third party to bring a direct action based

upon diversity of citizenship against an insurance com-

pany not in Louisiana, and that such party was not a nom-

inal party but was the real party in interest. We do not

believe this case requires us to overrule the McArthur

case, supra, because of the following general rules and

cases on conflicts of law.

“While the substantive rights of the parties to an action

are governed by the lex loci, the low of the place where

the right was acquired or the liability was insurred, see

the C. J. S. title Actions, Sec. 2 a, the lex fori see supra

Sec. 9, or law of the jurisdiction in which relief is sought,

controls as to all matters pertaining to remedial, as dis-

tinguished from substantive, rights. This rule. which

has been embodied by the American Law Institute in its

18

Restatement of the Law of Conflict of Laws, obtains

whether the action is on contract or for tort.

“The rule of comity extends to substantive rights only

and does not in general apply to remedies. Each state regu-

lates its own jurisprudence in its own way, and procedural

statutes cannot be given extraterritorial effect. Litigants

who, although nonresidents, resort to the courts of a state

or are compelled to appear therein may not insist upon the

trial of their rights by some other or different rules of

procedure which may prevail in the state in which the

cause of action arose.

“The only uncertainty which may arise concerning the

rule that the lex fori regulates all remedial matters re-

sults from the conflicting views as to what matters fall

within one or the other of such classes of rights, or where

the same claim may, according to the surrounding condi-

tions, fall into either class. Matter of substance, whether

presented by way of an objection to the admissibility of

evidence or as a point in pleading, is a matter of right,

and not of remedy, but it is frequently difficult to ascer-

tain whether a particular inquiry relates to the remedy or

to a substantive right.” (Emphasis ours.) 15 C. J. S., Con-

flict of Laws, pp. 948-949.

In the case of Martin v. Talcott, 146 N. Y. S. 2d 784,

where a suit is brought in New York for personal injuries

which occurred in New Jersey where the defendants were

sued as testamentary trustees and not as individuals, it is

said: “It has been held in New Jersey that, where a trustee

is sued onlv in his representative capacity, the complaint

19

must be dismissed, because an amendment will not be per-

mitted to change the capacity in which a defendant is

sued, Boyle v. Nolan, supra, (123 N. J. L. 365, 8 A. 2d 358).

However, it is the law of the torum which determines

not only questions as to who may be sued but also ques-

tions as to the form and amendment of the pleadings (Re-

Statement, Conflict of Laws, Secs. 588, 592. )”

The general law is set out in 11 Am. Jur., Conflict of

Laws, Sec. 187, pp. 500-501, as follows: “The untimate

question whether several defendants may be sued individu-

ally or must be sued collectively depends upon the ques-

tion, which must be fiist determined, whether the ob-

ligation or the transaction out of which the claim arises

is joint, or joint and several, or merely several. This is a

question which goes to the legal effect of the contract or

transaction, and as such is to be determined by the law of

the state where the contract was made or the transaction

arose. Where, according to the law of that state, the con-

tract or the transaction is determined to be joint or joint

and several, and not merely several. the question whether,

upon a joint or joint and several contract or transaction the

several defendants must or may be sued jointly or sever-

ally. or whether an intermediate number may be sued. is

a remedial question which must be determined according

to the law of the forum.” |

“Thre may be said te be five instances wherein it is

generally considered that the municipal law of the State

where the question is raised (lex fori) forbids the enforce-

ment of a foreign iaw. (1) Where the enforcement of the

foreign law would contravene some established and im-

20

portant policy of the State of the forum; (2) where the en-

forcement of such foreign law would involve injustice and

injury to the people of the forum; (3) where such enforce-

ment would contravene the canons of morality established

by civilized society; (4) where the foreign law is penal

in its nature; and (5) where the question relates to real

property.” Minor, Conflict of Laws, p. 9. See also 77 A

L. R. 1108, Anno.

In a Louisiana case interpreting Mississippi law, the

question of conflict of law as to procedure was <liscussed,

as follows: “Lynch v. Postlethwaite (1819) 7 Mart. ( La.)

69, 12 Am. Dec. 495, was an action for breach of a contract

executed in Mississippi, in which the plaintiff failed to

join oll the parties to the contract, who were partners.

Under the law of Mississippi a partner sued alone might

abate the suit on the ground of nonjoinder of his part-

ners. The court held that the question was one of rem-

edy and must be governed by the law of Louisiana — the

forur.. — under which the obligation of the parties was

joint and several, and they could be sued individually or

collectively at the option of the creditors.” 77 A. L. R.. Con-

flict of Laws, Anno., p. 1109.

In the State of Arkansas the Mississippi law of proce-

dure in the Missis*ippi courts was examined to determine

that law was applicable in the Arkansas court in the fol-

lowing case: “In this case the plaintiff brought assumpsit

in his own name on a judgment obtained by an adminis-

tratrix in Mississippi. alleging that. under an order of the

Probate Court of that State. the administratrix had sold

the judgment, and the plaintiff had purchased. and taken

an assignment of it to himself. On demurrer to the decla-

ration, Held, That the action shouid have been debt, and

not assumpsit; and that, in the absence of any allegation

in the declaration that there was a statute of Mississippi

authorizing the purchaser of a judgment at administration

sale to sue thereon ‘in his own name, he could not maintain

the action here, but the suit should have been brought in

the name of the plaintiff in the judgment.” Syllabus, More-

head v. Grisham, 13 English Reports, Vol. III, p. 431.

In 62 A. L. R. 2d 49°. two Mississippi cases are discussed

where the law of the forum is applied: “Although under

the law of Louisiana the assignee «svndic: of an insolvent

was entitled to sue upon an open account belonging to the

insolvent, it was held in Tully v. Herrin 11870), 44 Miss.

626. that he could not maintain in Mississippi a suit at law

on the account in his own name, the court pointing out that

his beneficial it.terest in the chose in action would be re-

spected and enforced but that, touching the remedy. he

must submit to the law of the forum. * * *

“In Kirkland v. Lowe (18570 33 Miss 423. 69 Am. Dec.

355. it was held that an insolvent could maintain an action

to recover money due upon an open account. notwithstand-

ing the appointment of a ‘svndic’ in Louisiana, the court

pointing out that the law of the forum governed the ques-

tion of who should be a party to an action. Under the law

of Louisiana the ‘swndic’ was entitled to bring the action.”

Ir tne case of Aetna Freight Lines. Inc. et al. v. R. C.

Twav Co. Inc d.b.a. Kentucky Manufacturing Company. 62

A.L.R. 29d 480. where a sui‘ was filed against a manufac-

22

turer of a trialer by the owner to recover the amount paid

in settlement of a claim of a person injured when the draw-

bar holding the trailer broke — the question was whether

the owner and lessee, or their liability insurer which

loaned the money to make the settlement, were the real

parties in interest — is a matter of procedure controlled

by the laws of the forum rather than the law of the state

where the accident occurred. The Court said matters of

procedure are determined by the law of the forum and the

question of who must sue or be sued is a procedural ques-

tion.

Sec. 11 Am. Jur., Conflicts of Law, Sec. 187, p. 500; Rest.

of the Law, Conflicts of Law, Sec. 588, p. 705.

In the case of Kirkland and Company v. Lowe, Pattison

& Company, 33 Miss. 423, where the question arose as to

who was a necessary party to a suit, the Court held that

the question as to ‘who were proper parties to a suit re-

late to the form of the remedy rather than to the right

or merit of the claim and is to be determined by the laws

of the forum.

In the case of the Bank of Louisiana v. D. P. Williams, et

ux., 43 Miss. 618, the Court held that where a foreign cred-

itor comes into this State and seeks compulsory payment

of a debt made by his wife, he must submit himself to the

law of the forum for his remedy. He must consult the

rules and regulations which govern courts here as to the

form of the suit, according to the character of his right.

Our system of jvzisprudence determines whether he must

sue at law or in chancery.

23

National Mutual Casualty Company v. Blackford, 141

S.W. 54 (Ark. 1940). This cuse was tried in Arkansas but

under the statute of Oklahoma, as construed by the Su-

preme Court of that state, a liability policy containing pro-

Visions that the insurer agrees to pay any final judgment

of personal injuries caused by motor vehicle operation.

that a judgment creditor muy maintain an action to com-

pel payment and insurer agrees that if it fail to pay such

final judgment, an action may be maintained against in-

surer to compel payment. The laws of Arkansas will not

permit the joining of a suit on a contract of an insurance

company and a suit for the accident, or, that is to say, a

suit ex delicto and ex contractu.

The law in question here, Act 55, Louisiana Laws of 1930,

which is set out in Burkett v. Globe Indemnity Company,

182 Miss, 423, 181 So. 316, is a law that requires each li-

ability insurance company doing business in the State

of Louisiana to write into its policy “a provision to the ef-

fect that the insolvency or bankruptcy of the assured shall

not release the company from the payment of damages for

injurv sustained or loss occasioned during the life of the

policy, and anv judgment which may be rendered against

the assured, for which the insurer is liable, which shall

have become executoryv, shall be deemed prima facie

evidence of the insolvency of the assured. and an action

mav thereafter be maintained with the terms and limits of

the policy by the injured person or his or her heirs against

the insurer company. Provided further 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

24

terms, and limits of the policy, in the parish where the ac-

cident or injury occurred, or in the parish where the as-

sured 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.”

The liability companies doing business in Louisiana

write into their coniracts an agreement that they may be

sued ‘alone, or against both the assured and the insurer

company, jointly and in solido.”

There is no charge made in the declaration filed in I.a-

mar County that the contract here sued on complies with

the Louisiana law, nor is it shown that this contract is a

Louisiana contract. On the other hand, it is said that the

insured Irvin Cook is a resident citizen of the State of

Mississippi. Therefore, if the State Farm Mutual Insur-

ance Company's contract with Irvin Cook prevents a suit

against the insurance company until judgment has been

obtained against him, no suit could be maintained against

the insurance company by virtue of this contract. If it

is a Mississippi contract, although the accident occurred

in Louisiana and although the defendant State Farm Mu-

tual Insurance Company could be sued in the courts of

Louisiana by virtue of its agreement with the State of Lou-

isiana, it could not be sued in Mississippi until the pro-

visions of its contract with Irvin Cook had been observed.

We are not, however, satisfied to rest this opinion up-

on the contract of insurance between the State Farm Mu-

tual Insurance Company and Irvin Cook. It is the opin-

25

ion of this Court that a litigant cannot sue in the courts

of any country, whatever his rights may be, unless in con-

formity with the rules prescribed by the laws of that

country. A claimant must take the law as he finds it; he

cannot place himself in a better position than other liti-

gants by invoking laws and procedures of a foreign sov-

ereignty. Societe Internationale, etc. v. McGranery, 111

F. Supp. 435.

Where a statute conferring a special or peculiar rem-

edy is enacted by a state, such a remedy will not be ex-

tended to actions brought in another state unless by a fair

and reasonable construction is applicable to that state and

it is within the competency of the court of the forum to de-

termine what is a matter of procedure and cf substance.

15 C.J.S.. Conflicts of Law, Sec. 22. p. $49.

We now therefore reaffirm the case of McArthur v.

Marvland Casualty Company. supra, and hoid that inso-

far as this State is concerned the law of Louisiana, Act No.

99, Laws of 1930. is pvocedural und remedial and the law

of the forum. that is to say. Mississippi. will be ajplied.

The case is therefere affirmed. om

——

“> ~

AFFIRMED.

LEE. GILLESPIE. McELROY AND JONES. JJ..

CONCUR.

26

IN THE SUPREME COURT OF MISSISSIPPI

NO. 41,785

MRS. VIRGIE COOK

. versus

STATE FARM MUTUAL INSURANCE COMPANY

This cause having been submitted at a former day of

this Term on the record herein from the Circuit Court of

Lamar County and this Court having sufficiently exam-

ined and considered the same and being of the opinion that

there is no error therein doth order and adjudge that the

judgment of said Circuit Crurt rendered in this

cause on the 2lst day of July 1960 — be and the same

is hereby affirmed. It is further ordered a::‘ ad-

judged that the appellee do have and recover of and from

the appeilant and E. J. Currie, Jr., and Carl E. Berry,

Jr., sureties on the appeal bond herein, all of the costs of

this appeal to be taxed, for which let execution issue as at

law.

BM - 284

DATED: March 27. 1961

STATE OF MISSISSIPPI

COUNTY OF HINDS

I, Tom Q. Ellis, Clerk of the Supreme Court of the State

of Mississippi, do hereby certify that the above foregoing

is a true and correct copy of the Judgment entered by the

Court in the cause of Mrs. Virgie Cook vs. State Farm Mu-

tual Insurance Company. No. 41.785, as same appears of

record on file in my office.

Given under my hand, with the seal of said

Court affixed, at office, in the City of Jackson,

Miss., this the 16th dav of August, A. D., 1961.

‘'s’ TOMI. ELLIS

Clerk of Supreme Court.

(SEAL)