*1
husband,
the car
belonged
to her
Thompson Short,
permission
ROBBINS v. SHORT et
consent. Both Mr. and Mrs. Short are
made defendants in
these defendants are
the suit. As both
First Circuit.
of Louisiana.
nonresidents
they
secretary
through
cited
Act 86
as amended.
The
Casualty Company of
Baltimore,
artthor-
Louisiana,
ized to do business in
was
joined in the
an
suit as
insurer of the
$5,000,
the car in the sum of
through
was cited
the sec-
retary of
state and
asked for
in that amount. This insur-
ance
exception
filed an
of mis-
sustained,
joinder,
was
and the suit dismissed as to the insurance
appealed
Plaintiff has
judgment, and
appellee
has filed a mo-
tion
appeal.
On Motion to. Dismiss.
26, 1935, plaintiff
On
secured an
June
appeal
devolutive,
suspensive
order of
days
returnable to this court in 50
that date. Under
appeal
that order
appellant,
bond was filed
the
nor was
transcript
filed in this court within the
time fixed in
August
the order. On
1935, plaintiff obtained an order for a
appeal
devolutive
returnable to this court
September 28, 1935,
in which order the
appellee was ordered to be cited to an-
appeal.
appellee
swer
Counsel for
ac-
cepted service of the order and citation of
appeal
August
1935. The bond
this order
August
was filed
1935, and the transcript was filed in this
in due
time.
Buatt,
Pugh
Crowley,
appel-
motion
to dismiss is based on the
lant.
appellant
perfect
failure
the first
appeal by filing
transcript
order of
Mouton,
Lafayette,
ap-
Welton
P.
within the
this court
time fixed in the or-
pellees.
der, appellee claiming that this failure to
appeal operated
perfect said
as an aban-
OTT, Judge.
donment of same.
to recover
Plaintiff sues
$10,000
Until
appeal
which she
for an
sum of
claims to
bond
filed,
appeal
there is no
Ap
sustained
accident on
abandon.
parish
Lafayette, pellant
perfect
had never
bond to
June
Spanish
Highway
appeal,
on
90.
Old
Trail
the first order of
and when
he
avers that
the order
appeal
She
the said accident re-
for the devolutive
injuries
August
sulting in her
caused
situation was the
though
negligence
appeal
Mrs.
no order of
Short, same
running
granted.
into
order
bridge
the side of a
or ever
for the de
post
year.
while
well within
riding
volutive
guest
the automobile as an invited
to dismiss is controlled
Short;
driving
that Mrs. Short was
the decision
Vacuum Oil
Mrs.
*2
sustaining
the
898. written
La.
148 So.
Cockrell, 177
Co. v.
judgment
misjoinder,
of
on the
basing
is over-
the
by
governed
ground that
the
contract
ruled.
made,
it
the laws of Missouri where was
Merits.
policy
and where the
by
misjoinder
binding
He
that
and enforceable.
held
Casualty Company and sus-
the
per-
permitting
No. 55
a third
on the
by
based
the trial
join
against
son
in an action
the insurer
by
in-
policy
this
that the
damages
the
for
in a
of this
assured
to hold
company obligated itself
only applied
surance
kind
of insurance
to contracts
car,
Short,
the
the owner of
Thompson
by
governed
the laws of Louisiana
any
by
claims
consequently,
harmless
reason
the
could not
act
car was
damages
operation
by
of the
governed
the
must be
contract
state of
confected
the
another state.
and the
insured and
tween the
policy
the
insurance
de-
a Missouri
was therefore
fendant
in Missouri in fa-
wrote
state;
governed
the laws of that
tract
Short,
vor of the
the
policy
a
contained
that said insurance
liability
against
insured
for acci-
Short
no
would
the effect that
action
clause to
injury by
opera-
the
dent and
reason of
company to recover for
against
the
lie
question
tion of the automobile
policy until
any
damage
or
under the
loss
Canada, and
the United States'
further
loss or claim had
the amount of the
agreed
filed against
to defend all suits
the
against
of court
judgment
Short,
insured,
groundless,
if
the
even
parties
by agreement of the
assured or
expenses
pay
de-
and to
incident to the
company,
consent
written
being
of said suits. As Short is now
fense
unless the
nor in
event
action
claim
arising
sued on a
Louisiana
judg-
brought within
after the
two
negligent opera-
alleged
agreement. That
action can
ment or
car,
company,
tion of said
against
maintained
be
contract,
by the terms of its own
is obli-
re-
plaintiff
policy until
above
said
gated
pending
to defend that suit now
and,
with,
complied
quirement has been
competent
More-
court of this state.
therefore, plaintiff’s petition
set
not
does
over,
that
de-
we do not understand
cause of action
forth
company contends that
it
fendant
is not
company;
in so far
as
subject to the
of the courts
attempts
give plaintiff
55 of
liability
adjudicate
state to
on its
of this
under its contract of insurance with Short.
an action
for the
insured
were the contention of
If such
car,
operation
.negligent
said
pany, it could not be maintained for the
null,
unconstitutional,
said
void ds
by qualifying
do
reason that
business
effect,
cannot
.act
have
extraterritorial
state,
subjected
ju-
it
itself
has
insurance between said
the said contract of
the courts of
this state.
risdiction
insured, Short,
being
and the
Laundry Dry&
Stephenson
ers,
Clean-
Missouri,
the laws of
legal
stipulation
above referred to is
Therefore,
only objection
that this
binding.
joined
its being
could have to
defendant
Short,
insured,
appears
depositions
the action un-
As
with the
that,
lawyers
in Missouri
is that
has not first
two
laws
der the
adjudicated
Short
has
of automobile
fix his
Should she
written
order to
do that as
liability
tially
stipulated
policy,
cannot
ini-
the de-
be
company certainly
could
with the assured
an action of
fendant
provision
not
then contend that it could
be sued
stipulated
plaintiff.
on the
that no
could be
in this state
Therefore,
right of which the
judgment
until a
was first
assured,
deprived
Mis-
be
under its
obtained
it follows
Act No. 55
contract with Short if
cannot
this insurer with souri
assured,
Short,
given
if the 1930 is
in
effect
have the
law of Missouri and the
its
to first
by a
are
'fixed
to control. The learned
Short
n gave
lower
elaborate
this state
it could
before
done,
lia- held that this
as the-
this state
courts of
law of the
bility
gov-
situs of the contract must
determined.
under
right protected
ern.
In that case
af-
importance to de-
then becomes
contract,
fected the
substance
the Mis-
whether that
termine
souri contract is
law
would’
*3
merely re-
substantive or
company
have made the
liable while the-
right
procedural.
If
medial and
enforcement of the
in the
primary
affects the
substantive and
company
relieved the
from
com-
principal obligation of the insurance
Likewise,
primary
pany
L.
by extending
enlarging
the case of Aetna
Ins.
129,
Dunken,
389,
it follows Co. v.
266
45
U.S.
S.Ct.
obligation under
then
342,
permits the 69 L.Ed.
attempted
55
1930which
No.
Act
apply
to
assessing
pen
Texas
in the suit
statute
cent,
alty
per
12
in this
attorneys’
insured could not be
deprive
company of that
fees in
suit in
case so as to
a Tennessee-
penalty
where
having
substantial
and attor
neys’
recoverable,
prin-
liquidated
fees
against the insured.
and the court
ciple
touch- held
through all
the cases
that
extending
enlarging
runs
Texas statute thus
ing
point.
primary
A
cases and
obligation
bn this
few of these
point.
will serve
illustrate the
under the'
Tennessee con
tract could
(Tex.Civ.
not be
Id.
enforced.
&
Hartford Accident
App.)
exceptions in that liquidate in the courts gs the in the insurer and between them sured grounds party, the third were overruled was based that decision Steph the case of Court in Cleaners, Dry& Laundry enson al., supra. part of that that Our conclusion permitting a claimant No. 55 of insurer with the join the liability accident under an car a suit for policy where the form effect of relates fori, may the lex contract of insurance though the
-even a different laws of policy valid into. entered assigned, For the reasons reversed, court is the lower
* Rehearing denied