*1 piece appellees performance of work the cause of the accident and that e.2 ruptured negligenc contributory equipment which were free of furnished spurt to on raised, a stream of oil caused Rehearing denied. Petition for engine truck, the hood Findings of; of Fact Conclusions being by appellants in work. used their not in- Law of the District Court explosion accident resulted in an previous consistent or opinion conflict with the cause of action rise to the appeal, of this court on former appeal. and are not erroneous. appeal previous enu- on Our decision guidance of merated rules of law District Court: negligence (1) on That it would ordinary part appellees and reason- if able care them were making selecting appel- to available equipment which fractured.

lants the negligence (2) on That would be it LIMITED, OFFICE part appellants SUN INSURANCE if failed Appellant, ordinary care and reasonable exercise operation for performance of the appellees. CLAY, Appellee. John No. 17525.

(3) appellants bound That were performance in the standard conduct Appeals United States Court of commensurate work which was Fifth Circuit. knowledge acquired special with the April experiences petrofracturers. as their May 28, Rehearings Denied (4) appellees also were bound That consistent with conduct standard producers. experiences oil well appellees (5) appellants and That both charged the same skill were concerning knowledge adequacy and

safety appliance used

fractured. by a case was tried remand the After jury en-

judge without appellees. in favor of

tered meticulous review careful and

A most evidence substantial record shows negli- support that the conclusion proximate gence appellants was the easily spurt- engine finding with oil covered a. and could sup- appellants ing well. used to the trucks of ply engine ignited pressure the overheated That That defective. c. ruptured squirted from the oil and that overheated the crude was known damage. running. nipple and caused when appellants guilty necessary keep That That d. b. failing ordinary keep negligence engine exercise cool and to of this truck petrofracturing appellees’ the hood of truck raised and care hood pumping the time it was oil well. raised at appellees ordinary exercised the well. The That mixture into truck was discharging part played by mouth of 40 feet of the the well care operation. them *2 Brannen, Fla., Miami, C. A. Joe James Smith, Miami, Fla., Smith, Wicker & counsel,

Miami, Fla., appellant. for Reese, Beach, C. West Palm Paschal Gibson, Fla., Beach, & West Palm Gibson counsel, appellee. Fla., for TUTTLE, RIVES and Before Circuit Judges, SIMPSON, Judge. District Judge. TUTTLE, policy. Subsequently, July, 1952, ap- pellee moved purchased to Florida. He personal property This is a suit on a Harbor, ranch near Lake policy. floater It was instituted July August of 1952 and became United States District Court *3 resident of Florida from that time on. by in Southern District December, January, 1955, 1954 and sured, Clay. jury John A awarded living while he was at the ranch near covery $6,800 the total of amount Harbor, per- Lake certain his of insured accordingly. The was entered property destroyed by sonal van- appeals, contending insurer district property dalism and other insured holding stipula court erred in that the Appellee appellant stolen. his notified of policy tion in the suit un which forbade February 1, losses on After in- 1955. less it twelve was instituted within vestigating claim, appellant denied discovery loss1 months next after liability April 6, not by Suit was rendered and unenforceable void May 20, instituted until (1957), Florida Revised Statute 95.03 F.S.A., which reads as follows: Under the of terms the “Suit Clause” appellee’s “Stipulations this suit was barred in contract shorten- because ing illegal. failure period to institute it within of limitation —All twelve months next provisions after he had dis contain- According covered any the losses. law

ed entered contract whatever Illinois, fixing such a contractual May 26, into after period was and is and enforceable.2 valid which time in suits any con- such be instituted under policy This insurance issued growing tract, any upon matter and delivered in Illinois to a citizen any provisions such out of the contract, state, paid by him it was period less at a of time residing while he was provided by than that the statute personal appellee’s state. It insured the hereby state, limitations of this presum atwas that time to the declared to be ably According in the same state. illegal state, and to be of this law of an Illi therefore state No court in this void. validity interpreta nois any provision or shall effect to ordinarily tion which would deter be mention- character by mined the law of Connor v. Illinois. ed this section.” Elliott, 79 Fla. 85 So. certiorari agree appellant’s dismissed 254 contention We defense, do L.Ed. 465. Since the vali and therefore we law Illinois to this limiting contentions. dates clauses the time other reach brought, which suit presents clause be issued and delivered good appellee’s defense suit Chicago April appellee on un unless the Florida statute renders appellee At that Illinois. any enforceable in Florida court. Il- resided in state of and citizen lump premium presents paid question This He linois. Chicago substantially received the he of this when affects outcome sum pro- suit, proceed- action, action or void unless such suit or Clause: —No “Suit any recovery ing ceeding claim be commenced within the shortest lim- Policy by permitted shall be sustainable it of time the laws of such equity any law or unless the state to be fixed herein.” court (12) within twelve commenced be same discovery by Ellis, Inc., As- Trichelle v. Sherman & after next months Ill.App. 346; Maryland Hartzell v. Cas. occurrence which rise sured Ill.App. 221; Co., Provided, see also Smith- if to the claim. (1) (k) Ann.St. 969a the state within which Hurd Ch. laws of ; Policy (1958) cf. such limitation is Smith-Hurd Ann.St. Ch. issued (a), 903(1) (a) (1958). any 837(1) invalid, shall §§ claims be jurisdiction possible quite It suit, is thus and since federal diversity of citizen would reach Florida state courts is based on this case Kentucky apply court same that the ship, must law conclusion apply in Union Life Ins. Co. v. of the forum would reached Cent. 3— Barnes, Ky. 364, York v. (Guaranty S.W. Trust Co. validity provi York, 89 L. that the contractual limiting Electric suit v. Stentor sion within which Klaxon Co. the time Ed. Mfg. be determined does 1477), the state lex locus rather than insofar as contractu expected the United lex fori. could constitution result not violate *4 Cir., Channell, Sampson 1 if the court did not fall into the Alabama v. See States. assuming 754, 394, certiorari of 128 A.L.R. error4 110 F.2d Court’s 1099, 650, presented 84 that issue the 60 S.Ct. the concerned 310 denied U.S. applicable choice the limita 1415. statute of rather choice tions than the of the sub wording statute of the Florida The governing validity stantive law the appears broad, general quite and it the contract itself.5 contracts, apply wherever to to obliged, happen performed, sued to be We are not to or upon which However, guess make the of Florida. difficult as to what courts might reported where Florida state no instances decide if there are courts presented issue, cir- this for we statute this has been presented possible conclude that to there is one cumstances similar here; those jurisprudence Florida decision which and the consonant would be deny process Flor- due reason to law:6 to us believe it as of Florida construe statute to this contract. ida state would being inapplicable under circum- these Examining decisions of the Su- stances. preme Court of the United on this States subject, we find none which involves following representative decisions here, presented identical circumstances tenden- demonstrate the Florida courts’ cy, very find we several which but interpretation based their which, feel, similar facts and requirements due unmistakably point out the result recognition general common must be which reached in case. this attempt- comity, to refrain rules ing apply Florida statutes or their v. case Home Insurance Co. supra, Dick, notions of own involved a contract of ma- paid valid entered which are where rine insurance issued and into; Sovereign Elliott, supra; insuring Connor v. Mexico and a vessel Mixon, Camp, Texas, the World v. Woodmen of inside the state never state 420, 171; Equitable brought. Life Fla. 84 79 So. in which suit on original Soc. of United States of America payable insurance was McRee, 257, 22; So. Ameri- v. Fla. After this insurance Mexico. was issu- King Ins. v. Lumber & ed, (outside Co. the risk reinsured Mfg. 168, Co., 130, affirm- Texas) by 74 Fla. 77 So. York insurer 2, 431, L.Ed. ed 250 U.S. 810. qualified business in Texas. to do See Co., 143, Travelers’ Protective also Brooks v. & Pine Land Delta America, D.C.E.D.N.Y., 634, 1178; Ass’n of 47 F.2d cf. 618. v. Home Insurance Co. 74 L.Ed. v. Galliher State Mutual Life Ins. 150 Ala. 43 So. Sampson Channell, Cir., Union Life 5. See Central Ins. 6. Cf. v. F. Barnes, Ky. 194 S.W. certiorari denied 810 2d Hartford Accident & L.Ed. 1415. assigned permitted sufficiently great, effectu original assured striking public policy by in ate own who was to a citizen of Texas agreement was valid after down an Mexico and remained there until loss; made, question remains: which where after occurrence inan Florida has with contacts which Texas and he returned to enough great garnishment pro- permit this rem action in Texas ceedings contacts These the domestic done in case? directed pres nothing agents. plead- more than defendants policy consist of forbidding ben ence eficiary of the insured ed beginning year except follow- next suit ing con subsequent denied the formation The Texas courts loss. stipu- continuing up tract and benefit the defendants the Nothing by a They done to be invalidated suit. lation. con pursuant statute, art. to the insurance Texas outlawing Rev.St. purely act agreements. except The Su- tract payment by ministerial insurer, revers- United States Court of the *5 only circum by vote. so of the fortuitous unanimous because a ed the Texas courts from by opinion of the removal Justice stance assured’s Mr. an written strikingly stat- Brandéis, the to Florida. Under Illinois the stated Court Supreme by circumstances, Texas similar the the ute as construed did deprived has that the forum Court the defendants right deprive a defendant law. stat- not the This have without due limiting the held, ute, ob- of a the increased contractual Court brought. ligation imposed had which suit be within could and burdens v. this, for; Accident & the Court Hartford not held, contracted Co., 292 name Pine Land even in the Delta & could not done rehearing Texas. of the L. denied 292 U.S. Judge by holding followed Ed. 1468. Strum, the for District Court the a later District of Southern case, the In the Delta & Pine Land Court, in case member by fidelity a bond concerned Hamilton Ins. Co. Holderness v. defendant, cor a Connecticut which the poration, qualified York, D.C.S.D.Fla., F.Supp. Mis do business involvedthe statute Tennessee, sissippi had insured argues, considering. But, appellee here Mississippi plaintiff, corporation with plaintiff was Holderness case in the against Tennessee, principal its office Carolina, state of North a resident of the resulting dishonesty em loss Carolina, policy in North issued anywhere.” any position, ployees “in building was insured twenty-one employees policy listed (“Holderness located North Carolina working Mississippi.7 who nothing sojourner than more negotiated however, Thus, contends, Florida.”). he State of in Tennessee. and executed It contained decision, Dick de- Holderness like the the cision, any claim under the con a condition a situation which was dictated made within fifteen tract had to be duplicated fo- in this case: not termination of the sure from the months tyship of sufficient connection rum’s lack employees, agreement. One disputed to warrant were insured commit acts whose invocation Mississippi ted defalcations forum. indemnitor in that state. sued insured statute, Assuming Mississippi might, Code a state A if its contracts of on that all contract are stated connections Employers Liability 166, 99 L.Ed. 7. Watson Mississippi (Home Insur would violate its laws property, interests in lives or state; supra, page ance Co. v. another in that were deemed made U.S., pe statutory 281 * Mississippi stated that the * *), grounds of no£ on could actions of limitations of riods ignore right agreements. law which has by private be altered fully here, if, as stat elsewhere court, vested applying these Mississippi forum but interest utes, aforementioned struck down the slight connection with the substance recov allowed condition and contractual ery obligations. Here plaintiff’s of the contract despite the contract performance at most involved the fifteen- make claim failure to money payment casual period. Court month Mississippi. ques In such a case the unanimous decision. versed ought regarded tion as a do following language Su- mestic one be settled precise- opinion forth sets Court’s the state where the contract ly principles follow we must legislative policy made. A decision we must make attempts to draw to the state case: obligations of control over the forum urged, “It validly consum contracts elsewhere interest insured was case the Mississippi mated and to convert purposes them when the for into contracts of the matured, indemnify appellee regardless um, im relative pay- appellant’s duty to make portance for of the interests of the *6 justify there; and these facts ment created um as contrasted with those enlarging appellant’s in the state place contract, con at obligation beyond stipulated in that guaranties flicts with the bond, local the policy. accord Aetna Amendment. Fourteenth liability Dunken, supra; Life Ins. Co. v. money only, payment and was Dick, supra, Insurance v.Co. Home events, upon three conditioned —loss 389, 129, 69 U.S. 45 S.Ct. [266 appel- policy, under the notice to 342], may in occur L.Ed. Cases office, presenta- lant at its home and enforcement of a contract within fifteen months tion of claim may made pugnant a state be so outside surety- of the termination to its vital interests as ship. were All of these conditions justify in different enforcement importance, of substantial all Hume, Compare Bond v. manner. Tennessee, go in and lawful 22, 366, 15, L. 37 S.Ct. U.S. is contract. It Ed. But is not this contemplated bond true the 150, pages 149, at case.” employee whose faithfulness pages at S.Ct. might guaranteed any state. foregoing, accordance with Mississippi fact in He was at subject hold obligor loss, date of as were both time in limits obligee. being and contract which suit can be a substan- and lawful Tennessee contract right protected by tial which is Mississippi, state, could with- Amendment to the Con- Fourteenth process, deprivation due en- out large stitution, under the circumstances obligations by appellant’s process violation of this case a due alleged of the state’s interest reason would result think not. the transaction? We 95.03, F.S.A., Statute Conceding ordinarily a state provision. prohibit performance within its validly even of a As borders Court observed elsewhere, performance case, if the Delta & Pine Land our conclusion process that it 926; would violate renders due also Holder- S.Ct. 74 L.Ed. see unnecessary a whether consideration of of New ness v. Hamilton Ins. it would York, violate the full credit D.C.S.D.Fla., F.Supp. faith and or the con- contract clauses of the federal above, Following principles out set stitution, research, art. 1. Extensive § hold erred we failing that the district court however, among the the Su- decisions of appellant’s defense to sustain the preme Court and the lower federal and to this suit. relating state courts inter- control of judgment of the district court state relations due reversed is remanded for en- ease full faith and credit clauses discloses try appellant. favor of the that the Dick and Delta & Pine Land de- many cisions have been times cited question have RIVES, Judge never been (dissenting). called into limited later decisions of the Su- Legislature of the State See, g., Em- Court. Watson that, provisions enacted “All ployers Liability 348 U.S. any contract contained in 74; 71, 76-78, * * * 75 S.Ct. 99 L.Ed. fixing period of whatever Larsen, 571, 590, Lauritzen v. 345 U.S. instituted suits * 1254; * Order any *, aat such contract of United Commercial Travelers provided period of time less than that 586, 608, Wolfe, America v. 331 U.S. state, by the statute of limitations of this 1687; Pink 91 L.Ed. hereby declared to be Highway Express, v. A.A.A. state, il- and to be 201, 211, legal court in void. No Denckla, cf. Hanson v. stipu- any provision or shall effect to 1283; Hoop- 2 L.Ed.2d in this lation of the mentioned character Canning Cullen, eston 313, language section.” F.S.A. 95.03. 87 L.Ed. 777. no leave of that to me to statute seems “any construction; applies room *7 part cited cases form contract whatever.” larger body a basic law which has as validity of attacked No premise principle where made that statute contracts significant state has involved interests reasonably do so. can impair rights it created shortening period Stipulations See, g., other states. Pink v. A.A.A. limitation result the same evils Highway Express, 209-211, whether entered into in State abuses secondary 62 S.Ct. 86 L.Ed. 152. A can- Florida or I outside State. principle significance which is also of agree Legislature, Florida though here is even the affected in State, must accord or the courts of that terests of the state be substantial stipulation an to ambulatory contained in enough justify its refusal af of insurance enforcing help firmative resident, into in a Florida but entered obnoxious, contract which finds these Illinois, any greater sanctity than may, hand, interests on the other be in accord would to such a justify rewriting sufficient to state’s Florida in Florida. I think that enlarging Legislature protect of that residents enforcing of the makers and it in man State in Florida undertaking. ner to their Wat shortening pe- Employers Liability son v. performed riod limitation 99 L.Ed. 74 regardless place where (concurring opinion); Acci Hartford therefore the contracts are executed. I dent & Co. v. Delta & Pine respectfully dissent. 143, Land 54 Rehearings denied; 6 RIVES, Home Insurance Judge, dissenting. 408-410, 50