NOEL, District Judge:
Mattie Pearl Eskridge, a servant for Mrs. Josephine G. Jacobs of Memphis, Tennessee, drove Mrs. Jacobs' automobile from Memphis into Mississippi. While driving in Mississippi she was involved in an automobile accident in which Mr. and Mrs. Orville A. Williams, occupants of the other automobile, were injured.
Appellees, representatives of Mr. and Mrs. Williams, brought suit against Mrs. Jacobs and Mattie Eskridge in the United States District Court for tthe Western District of Tennessee. A directed verdict was entered in favor of Mrs. Jacobs, and executions issued on judgment against Mattie Pearl Eskridge were returned
Maryland's policy was issued to Lonnie Eskridge, and provided coverage for his wife, Mattie Pearl Eskridge, while driving a non-owned automobile, "provided the actual use thereof is with the permission of the owner." United's policy was issued to Mrs. Jacobs and insured her automobile when driven by any person, "provided the actual use thereof is with the permission of the named insured." Both policies were issued in Tennessee.
The sole issue before the district court was whether at the time of the accident Mattie Eskridge was driving the automobile with the permission of Mrs. Jacobs so as to be an additional insured under the omnibus clauses of the policies.
Trial was to a jury. United made the following admissions which were admitted in evidence: Mrs. Josephine Jacobs was eighty years old, and was the registered owner of the 1961 Dodge automobile driven by Mattie Eskridge at the time of the accident; for two years preceding the incident Mattie Eskridge had been a maid, companion and nurse for Mrs. Jacobs; when Mrs. Jacobs was not using the automobile, she would occasionally and from time to time allow Mrs. Eskridge to use the car on a Sunday afternoon, to take it home with her on weekends to use to attend church on Sunday mornings, and to run errands for Mrs. Jacobs; neither before nor after the accident did Mrs. Jacobs report the automobile stolen or as being used by anyone without her permission; Mrs. Jacobs never told Mattie that she could not go out of town in the car; the only time Mrs. Jacobs denied Mattie the use of the car was when it was out of fix or in need of repair; Mattie was never discharged by Mrs. Jacobs, and that at the time such admissions were requested by appellees, she had a set of keys to Mrs. Jacobs' automobile.
The only other evidence introduced at the trial was the testimony of Mary Shelton. She testified that she had seen Mrs. Jacobs' automobile parked at Mattie Eskridge's house on numerous occasions, that she had twice ridden to church in the automobile with Mattie Eskridge, and that she was with Mattie Eskridge when she was involved in the automobile accident with the Williams.
The admissions were considered as evidence only against United. The testimony of Mary Shelton was the only evidence against Maryland.
At the close of the evidence, all parties made motions for a directed verdict. We hold that the district court erred in applying the Tennessee presumptions to the construction of the contract and, for the reasons which follow, the judgment of the court is reversed and the case remanded for further proceedings.
Except in matters governed by federal law, when as here a federal court's jurisdiction is predicated upon the diversity of citizenship of the parties, the federal court must apply the substantive law of the state in which it is sitting. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188 (1938); Shirey v. Louisville & Nashville R. R. Co., 327 F.2d 549 (5th Cir. 1964). If, in a diversity case, the court is required to construe an insurance contract, the federal court will apply applicable state law. Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290 (1938). When there is a question as to which state law should be applied, the federal court must follow a conflict of laws rule which conforms to those prevailing in the state in which it sits; viz., the conflict of laws rules of the state. Klaxon Co. v. Stentor Electric Mfg. Co.,
Here we have a suit initiated in federal district court in Mississippi, where the accident occurred, which involves the construction of an insurance contract issued in Tennessee. The district court was required to apply to the construction of the contract the law which would be applied under Mississippi conflict of laws rules.
For choice of law purposes, Mississippi, the lex fori, characterizes the law as "substantive" or "procedural." If the applicable law is substantive, the courts of Mississippi will apply foreign law; i. e., the law of the state where the cause of action, about which the controversy revolves, arose. Mississippi characterizes law governing the construction or interpretation of a contract as substantive, but will apply its own fundamental rules of evidence and procedure, in any event. Nationwide Mutual Ins. Co. v. Tillman, 249 Miss. 141, 161 So.2d 604, 613 (1964); United States Fidelity & Guaranty Co. v. Yost, 183 Miss. 65, 183 So. 260, 263, 185 So. 564 (1938); Interstate Life & Accident Co. v. Pannell, 169 Miss. 50, 152 So. 635, 638 (1934).
In applying these general rules to the case at hand, the substantive issue involved being the construction of a clause in an insurance contract, the trial court was required to follow Tennessee law (lex loci contractus) which, under Mississippi conflict of laws rules, would be considered substantive. See Wells v. American Employers' Ins. Co., 132 F.2d 316, 317 (5th Cir. 1942).
The Mississippi cases do not speak specifically of presumptions, but generally of procedure and burden of proof — which are to be controlled by the law of Mississippi. United States Fidelity & Guaranty Co. v. Yost, 183 Miss. 65, 183 So. 260, 263-264, 185 So. 564 (1938); Boothe v. Teche Lines, 165 Miss. 343, 143 So. 418, 420 (1932).
If the forum state has not passed upon the characterization to be accorded to presumptions, and from our research we are persuaded that Mississippi has not passed upon such characterization, we conclude that they would be treated as other matters of evidence, burden of proof, and with the general rule. See United Air Lines, Inc. v. Wiener, 335 F.2d 379, 391 (9th Cir.), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964); Lobel v. American Airlines, Inc., 192 F.2d 217, 219 (2d Cir. 1951), cert. denied, 342 U.S. 945, 72 S.Ct. 558, 96 L.Ed. 703 (1952).
The general and prevailing rule is that presumptions, when examined as to whether they are procedural or substantive in nature for choice of law purposes, are matters of procedure.
There are two exceptions to the general rule that presumptions are procedural in nature. The first exception is a "conclusive" presumption. It is difficult to draw a line between what is a conclusive, or substantive, presumption and what is a procedural presumption — but a conclusive presumption may be described as one which is final and irrebuttable, an inference which must be drawn from proof of given facts which no evidence, however strong, can overcome.
The second exception, and one which has been applied by this court, is delineated in the following language:
Lykes Bros. S. S. Co. v. Esteves, 89 F.2d 528, 530 (5th Cir. 1937).
The statutory presumption relied upon by the trial court is found in the Tennessee Code Annotated, sections 59-1037
Sections 1037 and 1038 of the Tennessee Code are designed to create a presumption, and if neither of the two exceptions to the general rule is applicable, the district court was not at liberty to apply said sections to this case. We conclude that neither exception to the general rule applies, and, therefore, the statutes should not have influenced the disposition of this case.
The substantive right involved in this case is the right of a person to seek recovery against an insurance company under the omnibus provisions of an automobile policy. In order to determine if the presumptions created by sections 1037 and 1038 are an integral part of the right, created in aid of it and so inseparably bound together with the right, it will be necessary to trace the development of these sections and to ascertain their purpose.
The Tennessee courts had adopted the rule that in a suit against the owner of a vehicle which, at the time of the accident or injury, was being driven by the defendant's servant who was acting within the scope of his employment, it would be necessary to offer evidence of ownership and the identity and employment of the servant before it would be inferred that the servant was acting within the scope of his employment at the time of the accident. See Davis v. Newsum Auto Tire & Vulcanizing Co., 141 Tenn. 527, 213 S.W. 914 (1919).
Apparently dissatisfied with the evidentiary burden placed upon the plaintiff, the Tennessee legislature enacted what is presently 59-1037 and 59-1038 of the Tennessee Code. The following interpretation of the statute given by the Tennessee Supreme Court will serve to explain the purpose of the legislation:
East Tenn. & Western N. C. Motor Transp. Co. v. Brooks, 173 Tenn. 542, 547, 121 S.W.2d 559, 561 (1938). See also Midwest Dairy Products Co. v. Esso Standard Oil Co., 193 Tenn. 553, 246 S.W.2d 974, 977 (1952).
The purpose of the statute, then, is to place the burden of rebutting the presumptions upon the owner, who is the person with the knowledge to disprove the presumptions. See Woody v. Ball, 5 Tenn.App. 300, 303 (1927), and Morgan, Procedure and Evidence — 1960 Tennessee Survey, 13 Vand.L.Rev. 1197, 1206-1207 (1960).
The owners of the automobile, against whom the presumptions operate, are not parties to this law suit. Here, unlike the Tennessee cases in which the statutory presumptions have been applied, the issue is not one of establishing the owner
The statute does not purport to apply to the construction of an omnibus clause of an insurance policy, and, so far as this court can discover, has never been so applied in the numerous Tennessee cases construing omnibus clauses. Young v. State Farm Mutual Automobile Ins. Co., 244 F.2d 333 (4th Cir. 1957); Branch v. United States Fidelity & Guaranty Co., 198 F.2d 1007 (6th Cir. 1952); Moore v. Liberty Mutual Ins. Co., 193 Tenn. 519, 246 S.W.2d 960 (1952);
On the other hand, Tennessee has a common law rule, later elaborated, which has been uniformly applied in cases involving omnibus clauses. Both in theory and in practice, the sections 1037 and 1038 presumptions are neither an integral part of the right to recovery nor so inseparably bound together that the application of the usual procedural rule of the forum (or, as it will be seen, Tennessee) would substantially impair the enforcement of appellees' right.
The trial court also based the finding for appellees upon the Tennessee presumption of compliance with the law; that Mattie Eskridge did not take the automobile without Mrs. Jacobs' consent and, therefore, it was presumed she had Mrs. Jacobs' permission to drive the car at the time of the accident. 250 F.Supp. 502, 505.
In this case, the Mississippi courts would categorize the presumptions which have been relied upon by the district court as procedural. The presumptions, therefore, did not modify the appellees' burden of producing the evidence necessary in order to prevail under the substantive law of Tennessee. They alone will not support the directed verdict entered in favor of the appellees.
The Tennessee law which governs the interpretation of the automobile policies, and that which the district court was required to follow, deals specifically with interpreting "actual use * * * with the permission of the owner," as that language is used in an omnibus clause. Young v. State Farm Mutual Automobile Ins. Co., 244 F.2d 333 (4th Cir. 1957); Eagle Fire Ins. Co. of N. Y. v. Haskins, 240 F.Supp. 283 (W.D.La.1965); Southwestern Fire & Casualty Co. v. Kovar, 227 Miss. 386, 86 So.2d 356 (1956); United States Fidelity & Guaranty Co. v. Yost, 183 Miss. 65, 183 So. 260, 185 So. 564 (1938). This law is an integral part of construing the omnibus clause of the insurance contract — it is substantive.
The rule in Tennessee is:
By directing a verdict in favor of the appellee, the district court in effect found that the facts and the inferences, as supported by the overwhelming weight of the evidence, point so strongly in favor of the appellee that reasonable men could not reach a contrary conclusion. Seaboard Properties, Inc. v. Bunchman, 278 F.2d 679, 681 (5th Cir. 1960); 5 Moore, Federal Practice para. 50.02, at 2314 (1964). But this finding does not correctly depict the posture of the case.
A jury could have inferred from the evidence, inappreciable as it was, that Mattie Eskridge did not have the general permission of Mrs. Jacobs to drive the automobile, and that the appellees had failed to prove that she had permission to drive the automobile at the time and place of the accident. This would have been a rational result, especially as to Maryland. Reasonable minds could differ on the conclusion to be reached. The issues should have been resolved by the jury. Compare Necaise v. Chrysler Corp., 335 F.2d 562 (5th Cir. 1964).
Reversed and remanded.
In the first of a two-step procedure, the federal court must decide whether the case, under the teachings of Erie, involves issues which are substantive. Substantive in this context means that the state law applicable to the issue or issues of the suit would significantly affect the outcome of the suit. If so, the federal court must apply the applicable state law on these issues, Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), and will follow its own rules of procedure.
After the court has determined that it must apply state law, if a conflict of laws problem is also in the case, the court moves to the second step where it must decide which state law it is to follow. The federal court will make the decision by looking to the conflict of laws rules of the state in which it is sitting. As a general rule, states will adhere to the law of a foreign state which is substantive, but will apply its own law on matters of procedure. The characterization adopted by the state courts in this regard will be conclusive upon the federal court. See United Air Lines Inc. v. Wiener, 335 F.2d 379, 391 (9th Cir.), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964).
Thus, in a diversity case, if a matter is "substantive" the federal court will follow the pertinent state law; and, if a choice of law also must be made, the federal court will apply the substantive law which would be applied under the conflict of laws rules of the forum state. In determining whether any state law will be adopted, the fact that a matter is characterized as substantive by the state courts for choice of law purposes does not connote that it will also be substantive for purposes of Erie, and the converse should be true. Therefore, merely because the federal court may classify burden of proof as substantive does not mean that the court can follow the burden of proof rule of the lex loci contractus — unless the forum state's conflict of laws rule characterizes the burden of proof as substantive and would also apply the foreign rule. See Annot., 21 A.L. R.2d 247, 258 (1952).
The second exception was recognized, in essence, by Professor Cook in an early article. Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L. J. 333, 353-356 (1933).