Crider v. Zurich Insurance Company

PETITIONER:Crider
RESPONDENT:Zurich Insurance Company
LOCATION:Criminal District Court, Parish of New Orleans

DOCKET NO.: 116
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 380 US 39 (1965)
ARGUED: Jan 19, 1965
DECIDED: Mar 01, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – January 19, 1965 in Crider v. Zurich Insurance Company

Earl Warren:

Number 116, Thomas J. Crider, Petitioner, versus Zurich Insurance Company.

R. Foster Etheredge:

Mr. Chief Justice —

Earl Warren:

Mr. Etheredge.

R. Foster Etheredge:

— may it please the Court.

On behalf of my brother and friend here, Mr. Max Pope, I’d like to request the Court to allow him to argue the case pro hac vice.

I understand that he likes approximately three weeks to possess the necessary three-year qualification as required by the rules of the Court.

Earl Warren:

The motion is granted.

Max C. Pope:

Mr. Chief Justice —

Earl Warren:

Mr. Pope.

Max C. Pope:

Thank you, sir.

Mr. Chief Justice, may it please the Court.

I appreciate the indulgence ago for letting me argue this case pro hac vice and I hope you’re not ashamed of it or you ordered before you get food, before I get the food.

As I see this case, there are two issues under the facts that I’m about to recite.

Can a state create a transitory cause of action and so restrict it that only the state that created it can enforce this cause of action?

The answer — the obvious answer to this is, no.

However, this no is qualified by the Full Faith and Credit Clause of the United States Constitution which is the next issue and, as I see it, the only issue that this Court has to decide.

Did the Alabama Court, in enforcing the Georgia statute, violate the Full Faith and Credit Clause of the United States Constitution?

Petitioner was awarded a judgment in a trial court in Alabama and the said judgment was based on the Georgia Workman’s Compensation Law.

This was a default judgment.

No appeal was taken from this judgment.

This was in February of 1959.

We filed a complaint in the United States District Court for the Northern District of Alabama against the respondent here who was the insurance carrier of the defendant in the Alabama trial court.

Potter Stewart:

Now, before you did that, didn’t you try to sue on your judgment in the Alabama Circuit Court?

Max C. Pope:

Yes, sir.

I was not associated in this case until there was — until I filed the complaint in the federal court.

Potter Stewart:

Not you, I didn’t mean you, I meant the petitioner.

Max C. Pope:

It was — right sir.

It was filed in the Court.

That is not in the record here, but we might as well bring it all out that it was not — it’s not in the record before the Court.

It is in the respondent’s brief, but — that this — we are — I’m willing to discuss that aspect of it.

Max C. Pope:

But there was a bill filed in the Court.

It was taken a nonsuit and we filed the bill — the bill in the Federal District Court.

Potter Stewart:

And as the — the Circuit Court, in your suit on the judgment, upheld the defendant’s affirmative defense instruction.

Max C. Pope:

That’s the way I understand it.

Potter Stewart:

They gave the merits to those rights.

Max C. Pope:

Right, sir.

Their motion to dismiss was filed in the Federal Court.

This motion was granted.

We appealed to the Fifth Circuit Court of Appeals.

They affirmed the trial court.

We filed a petition for certiorari and it was granted in May of 1964.

As I understand the Alaska Packers case, which is this Court’s decision, there was a conflict between the Alaska Compensation Act and the Compensation Act of California.

The petitioner or the plaintiff was injured in Alaska and this Court held that in so awarding in California compensation even though he was injured and was covered by Alaska compensation, they held in that case that the Compensation Acts of either jurisdiction, consistently with due process, could be applied in either state.

Then a later case, Pacific Employers versus Industrial Accident Commission was also involved, the California Industrial Commission, which also would involve the Massachusetts Compensation Act.

And they reiterated that principle and it said either state would be free to enforce and adopt the remedy provided by the statute of the other state.

Now, in this ca — this Court’s, one of their more recent decisions is the Carroll versus Lanza case in 1954.

And in any of this opinion, the Court said the Pacific Employers Insurance case teaches the corollary form which would be Alabama in my case, can displace the entire Foreign Compensation Act or they could supplement it.

They can supplement it.

In that case, in the Carroll versus Lanza case, the plaintiff was injured in Arkansas.

He was employed in Arkansas.

He was granted benefits under the Missouri Compensation Act.

Then, he filed a common law action in Arkansas and this Court held that it was permissive for the Arkansas to disregard the entire Compensation Act of Missouri and give him his common law or common law remedy in Arkansas.

It did not violate the Full Faith and Credit Clause of the United States Constitution for Arkansas to displace the entire Compensation Act.

Tom C. Clark:

There, though, they did not apply the law — the compensation law.

They applied the common law.

Max C. Pope:

Yes, sir.

They disregarded the entire law.

Tom C. Clark:

You’re applying — you’re trying to take the benefit of the Georgia law, aren’t you?

Max C. Pope:

Yes, sir.

Tom C. Clark:

Except its procedural position.

Max C. Pope:

Yes, sir.

Tom C. Clark:

And there, can you go into Court at all in Georgia?

Max C. Pope:

Not — not in this Compensation Act.

Georgia has so held that they — their remedy cannot be enforced in its courts.

You’re right sir.

Tom C. Clark:

Even the review or —

Max C. Pope:

It can by review.

Tom C. Clark:

In Texas, you go into the Board and then you go into the Court.

Max C. Pope:

Yes, sir.

I believe that’s the correct procedure.

Tom C. Clark:

Is that the same for Georgia?

Max C. Pope:

Yes, sir.

There are only a few states that have a direct Court action and Alabama is one of those states.

Tom C. Clark:

You have to exhaust your administrative remedy first.

Max C. Pope:

Right, sir, right sir.

The —

Arthur J. Goldberg:

(Inaudible) — in the Georgia compensation statute.

Max C. Pope:

Yes sir.

And I —

Arthur J. Goldberg:

Can you describe to me what type of (Inaudible) that you could not do in Georgia in Court under that statute.

Max C. Pope:

Right sir.

Arthur J. Goldberg:

Isn’t that right?

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

(Inaudible) do you have cases with whom that under the state dealing with its own common law with this problem (Inaudible) authority, isn’t it?

Max C. Pope:

Well —

Arthur J. Goldberg:

(Inaudible) since before the last day before he could ever be in Court.

Max C. Pope:

Yes, sir, but the fact that the Court of a sister state does not have jurisdiction of its own cause of action.

This Court held in TCI versus George which involved the Alabama versus Georgia Court decision that they reversed, Alabama had a provision that this could only be enforced in Alabama.

And this Court held that the statutes of a sister state, jurisdiction is not determined by the law of the Court, it’s determined by the law of the Court’s creation and cannot be defeated by the exterritorial operation of a statute of a sister state even though that statute created the cause of action.

If it cannot defeat the jurisdiction, this provision, this administrative procedure or procedural right, and under the Georgia law, cannot defeat the jurisdiction of the Alabama Court.

Hugo L. Black:

Was that under the Alabama death statute?

Max C. Pope:

No, sir.

This — you mean the Geor —

Hugo L. Black:

The Georgia —

Max C. Pope:

The TCI where it was — similarly it was an employee’s right when he was injured by defective machinery.

It was not under the death statute.

Hugo L. Black:

Under the employee’s liability?

Max C. Pope:

Right, yes, sir.

And, they held in that case.

Now go —

Hugo L. Black:

Alabama had provided, had it not, that it could not be enforced in another state?

Max C. Pope:

Yes, sir.

It had —

Hugo L. Black:

What you say here is that Georgia has created a liability in a case of this kind.

Max C. Pope:

Yes, sir.

Hugo L. Black:

But it’s provided that it cannot be enforced in the law and the Courts of Georgia.

Max C. Pope:

Yes, sir.

Hugo L. Black:

You say that that’s not binding on the other state.

Max C. Pope:

Yes, sir.

Hugo L. Black:

That they, since they have the liability created, can choose their own methods for enforcing the liability.

Max C. Pope:

Yes, sir.

That’s —

Hugo L. Black:

And you rely for that on Tennessee against Georgia.

Max C. Pope:

That’s one of the cases, very much, so that it could not deprive — this Georgia statute could not deprive the jurisdiction of the Alabama Court, yes, sir.

Arthur J. Goldberg:

What you mean Mr. Pope that the state court or any of the Courts in the Alabama state —

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

And that’s the cause of action.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

Do you disregard the Alabama statute, (Inaudible) so to speak —

Max C. Pope:

That this — this Court in my opinion, in the Carroll versus Lanza case it so said that, sir, when it said that it could disregard the entire Compensation Act or it could supplement it and I don’t know what the word “supplement” mean, but I would assume that it would mean add something to it, and I think it add no more than a way to enforce — enforce this cause of action.

Max C. Pope:

In my case, and also in the Carroll versus Lanza case, it said Missouri– talking about Missouri which would be out, it said it could make its Compensation Act exclusive in its own courts and enforce it as it sh — as it was — as it please, but when this right was extended to other states, different considerations come into play.

Arthur J. Goldberg:

I thought Carroll argued (Inaudible) but I thought Carroll did, one of his (Inaudible) apply its own compensation statute.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

And this warrant could define the common law.

Max C. Pope:

Right.

Arthur J. Goldberg:

Now, this — (Inaudible)

Max C. Pope:

Well, I admit —

Arthur J. Goldberg:

(Voice Overlap)

Max C. Pope:

Yes.

Well, and insofar as stated, it indicates that nowhere that this man — in this case, the defendant withdrew from this case and the plaintiff was put on a horns of dilemma.

He did not know what to do.

The Court — this is not in the record, but this is the aspects of the case.

There are certain other parts noted who put on the horns of dilemma of what to do.

They came up with the insurance policy that only provided for insurance.

This — this is the essence of it.

It only provided for insurance under the State of Georgia.

If this man had an Alabama judgment based on Alabama law, it wouldn’t be worth the paper it was written on it.

This is it.

This Court held in Alaska Packers case that the — this was not a workmen’s compensation case was not a tort action.

It was — it was an incident of doing business.

There was a promise that they would — that their employer would compensate a man when he was injured and the statute — the states, in passing these statutes merely sanctioned this problem.

And it’s the instant of doing business and it comes out of the realms a little bit of the regular conflict of laws and each state has it’s — that is one of the things I think the Carroll versus Lanza case turns on.

As I said, it says different consideration or different — as this Court has expressed in the very recent case of Clay versus Sun Insurance Company that the significant context that the Court’s other form has a governmental interest that they have a right to protect.

In this case, the petitioner was injured in Alabama.

The defendant was doing business in the State of Alabama.

And the State of Alabama has an interest in protecting injured employees that are injured within its boundaries.

William J. Brennan, Jr.:

Did I understand you to say, Mr. Pope, the Zurich policy covered liability only when liability was found under Georgia law, is that it?

Max C. Pope:

Yes, sir.

Yes sir.

I‘ve come up on that clause and I have it in my pocket and I — the reason is not in the record.

Max C. Pope:

We’ve been on a motion to dismiss ever since I’ve been in the case, and we haven’t had any time to discover to get in —

William J. Brennan, Jr.:

Well, let me ask.

That wouldn’t preclude though, would it, for an injury in Alabama a recovery under the Alabama Compensation Law against the employer?

Max C. Pope:

No, sir.

It would not preclude it, but what I’m trying to say, the judgment would be no good.

William J. Brennan, Jr.:

Well, do you say under this policy that would not make Zurich liable if —

Max C. Pope:

Right.

William J. Brennan, Jr.:

If the judgment were —

Max C. Pope:

— were rendered under Alabama law, (Voice Overlap) right.

William J. Brennan, Jr.:

But, still wouldn’t be recoverable — wouldn’t the judgment being recoverable against the employer?

Max C. Pope:

He’s insolvent, sir.

That’s — and that’s the reason they withdrew from the case, that they — what I’ve assumed that they were insolvent and it was in — I don’t know how they came up on this injured company as I said.

I did not handle the case in the trial court and I do not know, but this is what I have assumed.

In —

Arthur J. Goldberg:

You say Zurich did business in Alabama?

Max C. Pope:

Yes, sir.

It — where it was a diversity.

It does business in Alabama and Green we had federal court jurisdiction as they —

Arthur J. Goldberg:

You’ve got personal service, don’t you?

Max C. Pope:

On Zurich, yes, sir.

And now, the defendant, in their recent case, it was substituted service.

It was substituted service.

In fact, they were doing business under the provision of Alabama statute.

Now, it —

Hugo L. Black:

Your question is, as I understand it, whether a state has power by the statute, recovery statute of this kind, the limit to recover it and the method it suggest has its own state administrative agents.

Max C. Pope:

Yes, sir.

Hugo L. Black:

To limit it that thereby, deprives that case of being tried in any other state —

Max C. Pope:

Right.

Hugo L. Black:

— even though the Court has jurisdiction to that kind of a case.

Now, you do have this definite condition in the Georgia case, do you not?

Hugo L. Black:

That they’re called the Georgia case a transitory cause of action.

Max C. Pope:

Right.

Hugo L. Black:

Do you see any difference in that?

Max C. Pope:

This is a transitory cause of action.

Sir, as I understand, a transitory cause of action, it is a cause of action that can happen any place.

A local action would be one like trespass the land.

It could only happen where a person want to cross that land.

This person could be injured in Alaska and his cause of action would occur.

There is a transitory cause of action that could occur any place that he was covered under the Georgia law, and this is the reason I say this is a transitory cause of action.

This is one of the bad aspects of this thing.

True enough, this is only a neighboring state of Alabama and Georgia right next door, but if this employer had taken this man to Alaska and he had become bedridden and injured up there, would he be forced to go all the way back and exhaust his administrative remedy all the way back to Georgia?

I don’t think the decision of this Court takes it that far, and that’s the result we’ll reach if this — if the Court of Appeals is not reversed in this thing.

It’s the application it has to the whole thing is preventing a state — a foreign state to protect its citizens that are injured within its boundaries.

Hugo L. Black:

What was the ground?

Max C. Pope:

Sir?

Hugo L. Black:

What was the ground of the Georgia — of the Georgia statute holding that Alaba — that the statute was unconstitutional?

It was trying to deprive the other state to try it.

Max C. Pope:

In the Georgia case?

Hugo L. Black:

What was the ground?

Did they — as I read the case, they held that denied Full Faith and Credit to a substantial part of the Alabama law which created the liability.

Max C. Pope:

But the Court said it did not violate the Full Faith and Credit Clause in ignoring this part of the Georgia law.

I mean, that’s the way I read it, I assume it’s the only thing that you have in Court.

Potter Stewart:

Yes.

Mr. Pope, as I understand your basic argument is that Alabama can, if it chooses, decide to enforce part but not all of the liability created by Georgia.

Max C. Pope:

Yes, sir.

Potter Stewart:

And to see what’s been suggested, if I understand, also by Justice Black’s question.

Max C. Pope:

Yes, sir.

Potter Stewart:

Well, now, I’m assuming you’re right on that for the purposes of these — that this question which expresses my doubt.

This judgment was a default judgment, was it not?

Max C. Pope:

Yes, sir.

Potter Stewart:

And the Alabama courts — the Alabama Circuit Court, when asked to enforce this judgment —

Max C. Pope:

Yes, sir.

Potter Stewart:

— refused to do so, didn’t it?

Max C. Pope:

Yes, sir.

This is in another court, but in a Circuit Court in Alabama, yes sir.

Potter Stewart:

Yes, we — so, —

Max C. Pope:

Right.

Potter Stewart:

— insofar that shows anything, it shows that Alabama has not chosen a policy which you said they have.

Max C. Pope:

Well, that it —

Potter Stewart:

This was a default judgment.

Max C. Pope:

Right.

Potter Stewart:

And, when Alabama courts were asked to enforce it, they refused to do so, didn’t they?

Max C. Pope:

They refused to enforce the judgment, but not the cause of action.

Potter Stewart:

Well, now, why did they refuse to enforce the judgment?

Max C. Pope:

Well, Mr. Etheredge might as well bring the rest.

He — he contends that the Singleton versus Hope Engineering Company is the case that calls it out.

There’s no — I have not seen any opinion.

The only thing in the opposite trial court was sustained with pleas and demurrers and what the judge used as basis of it, I do not know.

But, in the Singleton versus Hope Engineering case, the defendant was injured in Georgia, and the Alabama Court said it was a common law cause of action.

And in that case, this is — I want to finish it but I –.

Potter Stewart:

I’ve — I’ve delayed you with my questionings.

Max C. Pope:

That’s right.

I won’t answer.

Potter Stewart:

Alright.

Earl Warren:

Mr. Etheredge.

R. Foster Etheredge:

Mr. Chief Justice and may it please the Court.

I must confess to you, this case has been troublesome to me because there are certain guidelines here that I think that the petitioner has tried to mesh over into an old long line of cases.

For example, I am surprised that my brother quotes TCI against George in support of the petitioner’s contention because TCI against George recognizes that Alabama could not limit what appeared to be an employer’s liability, wrongful death statute.

The enforcement of it in the other state, this Court recognized the age-old principle that there are many cases where the right and remedy are so united that the right cannot be enforced except in the manner and there before the tribunal designated by the Act.

But, the rule is well settled that where the provision for the liability is coupled with a provision for the special remedy, that remedy, that alone must be employed.

R. Foster Etheredge:

That’s an age-old case.

It’s never been disturbed.

On page 19 of the brief I cite to you some 10 or 12 states which have carried this statement or principle allowed the full effect.

The Tenth Circuit, the Fifth Circuit, the Circuit Court of Jefferson County, Alabama, and may I say in regard to the Circuit Court ruling on demurrer, in this same situation, this same facts, that in the case of Singleton against Hope, an Alabama Supreme Court decision, it stated and answered this proposition insofar as Alabama’s choice of conflict of law rule is concerned.

In Singleton against Hope, the Alabama Supreme Court refused to follow the Georgia law and said that the remedy, under the Georgia Compensation Law, is proper pleading and proof before the Industrial Commission of our sister state of Georgia.

Now, may I state this to you, if you reverse this case, you’d be holding that an Alabama trial court must administer the Georgia Workmen’s Compensation Law.

There’s no authority for this proposition.

Byron R. White:

You don’t —

R. Foster Etheredge:

The Georgia Compensation Act — sir?

Byron R. White:

Would you really be saying that — wouldn’t we really just be saying that the Full Faith and Credit Clause doesn’t forbid or require it?

R. Foster Etheredge:

Well, I think you would, sir.

Byron R. White:

If Alabama didn’t — decided not to enforce the Georgia law, I supposed to decide that way, but if it decided to try to enforce to do it, the question is, does the Full Faith and Credit Clause forbid it?

R. Foster Etheredge:

The Full Faith and Credit Clause —

Byron R. White:

Doesn’t that have to be your argument?

R. Foster Etheredge:

Well, I think so, yes, sir.

I think that’s the argument.

However, in a practical administration of justice, all I’m saying is that if you say that this judgment is valid in a Circuit Court in Jefferson County or the DeKalb County Circuit Court in Alabama, then you’re saying that those Courts can hear cases under the Indus — under the Workmen’s Compensation Law of the State of Georgia.

And, I — and in the respondent’s position is that that is incorrect also.

Now, Alabama can adopt or — on the Full Faith and Credit, I think, Alabama has a right to say that the sister state has this statute, has set up procedural ways in which it’s to be enforced and we’re going to recognize those procedural ways, and Alabama has done that.

Byron R. White:

What’s the difference?

That argument is — there’s nothing wrong with that argument, I suppose.

R. Foster Etheredge:

Right.

Byron R. White:

But, the question is, what is Alabama’s pol — what is Alabama’s policy in a situation like this?

R. Foster Etheredge:

In — on the facts of this case?

Byron R. White:

Yes.

R. Foster Etheredge:

Alabama’s policy is, expressed in Singleton against Hope, it is that it would not entertain the jurisdiction of a claim under the Georgia Workmen’s Compensation Acts for that.

Hugo L. Black:

But it has done so in this case, hasn’t it?

And it has not been appealed and reversed —

R. Foster Etheredge:

Well, Ala —

Hugo L. Black:

In the Supreme Court.

R. Foster Etheredge:

In this case at the bar?

Hugo L. Black:

In this case, there has been a judgment rendered by the Alabama Court, hasn’t it?

R. Foster Etheredge:

The DeKalb County Circuit Court rendered it.

Hugo L. Black:

Right, but what happened to that judgment?

You’re attacking it collaterally in the federal court.

R. Foster Etheredge:

Yes, sir, because I attac — the respondent attacks it and attacks it collaterally because it says that the judgment was rendered by the Court.

It did not have jurisdiction of the subject matter and it appears on the face of the complaint and, if the judgment is void because of that reason, it can be attacked anytime, anywhere, if I understand the law.

Byron R. White:

Well, that —

R. Foster Etheredge:

Sir?

Byron R. White:

Could you — the question of jurisdiction could have been raised and litigated in the Alabama Court.

R. Foster Etheredge:

Yes sir.

Byron R. White:

And it wasn’t raised and litigated, was it?

R. Foster Etheredge:

That — it was not.

It was a default judgment.

Byron R. White:

And yet there was personal service —

R. Foster Etheredge:

Yes sir.

Byron R. White:

There was personal service, the defendant could have raised and litigated the question of jurisdiction in the Alabama Court.

He chose not to do so and didn’t appeal.

Now, why should that judgment deal with the collateral effect?

R. Foster Etheredge:

Because it’s a question of the subject matter of the suit that the courts lack jurisdiction.

Because the Court lacked jurisdic —

Hugo L. Black:

You mean the Alabama Court didn’t have jurisdiction to try a case of that kind?

You said it didn’t have jurisdiction to try this particular case, for this particular injury —

R. Foster Etheredge:

Yes sir.

Hugo L. Black:

Because of the Georgia law.

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

But can Georgia law, didn’t they say in this other case that one state can’t deprive another Court of its jurisdiction, the state of its court’s jurisdiction?

R. Foster Etheredge:

Well, I think that in certain cases —

Hugo L. Black:

I’m not saying what would have happened if you had challenged that (Voice Overlap) —

R. Foster Etheredge:

Yes, I understand that.

Hugo L. Black:

— if it had gone up to the Supreme Court.

R. Foster Etheredge:

But, I’m saying that the Alabama Supreme Court in Singleton against Hope has said that it didn’t have jurisdiction of this type of case.

Potter Stewart:

What was the date of that decision?

R. Foster Etheredge:

Well, I think that was 1931.

It’s my recollection.

William J. Brennan, Jr.:

But didn’t — I have to ask this question.

R. Foster Etheredge:

Yes, sir.

William J. Brennan, Jr.:

Did that go in terms of jurisdiction or in terms of the common?

R. Foster Etheredge:

Well, I don’t think that was discussed in the case, Mr. Justice Brennan.

William J. Brennan, Jr.:

No, I recall when I was on the New Jersey Supreme Court, we had problems of this kind and we held — we dealt with them not in terms of jurisdiction of Full Faith and Credit but rather, in terms of the committee that New Jersey courts would give to a, to quote particularly New York Compensation Law in its particular provision.

Now, Singleton is in that area.

R. Foster Etheredge:

Yes, sir.

William J. Brennan, Jr.:

Well, we’re not talking in terms of jurisdiction, are we?

R. Foster Etheredge:

Well, Singleton against Hope did not discuss it in terms of the committee but it discussed it in terms of its ruling on demurrer, just as the Circuit Court in Jefferson County when this judgment was brought before it stating that we, Alabama will not exercise the jurisdiction of a claim under the Georgia Act —

William J. Brennan, Jr.:

That’s a very different thing.

It seems to me that doesn’t go to the jurisdiction of the trial court, does it?

It may be policy of Alabama not to enforce those claims, but that’s not —

R. Foster Etheredge:

Well, I —

William J. Brennan, Jr.:

I think it’s question of jurisdiction.

R. Foster Etheredge:

That is true, but I still cite from the question of the policy of Alabama as to whether or not it would choose to implement the Georgia Act.

The respondent also says that it did not have jurisdiction because it is not equipped to implement the Georgia Act.

As a matter of fact, the Georgia Act —

William J. Brennan, Jr.:

That goes — that goes to the idea that this right and remedy business being so intertwined.

R. Foster Etheredge:

Yes, sir.

And, the Georgia Act is really alien to the Alabama’s concept in this field because, as we’ve said, we’d have the Court that administered Workmen’s Compensation Act, and the State of Georgia has a Board Administrative.

Now —

Tom C. Clark:

But then, you had Georgia on review.

In Georgia, you go into the Court on review.

R. Foster Etheredge:

Yes, sir.

On — after the Board — the Industrial Board, of course, hears all disputes, makes all determinations and if there’s been arbitrariness, or — you can go into the Court to review it.

R. Foster Etheredge:

That is correct.

Tom C. Clark:

That is de novo, isn’t it?

R. Foster Etheredge:

Sir?

Tom C. Clark:

Isn’t it a de novo trial?

R. Foster Etheredge:

I do not think so, Justice Clark.

No.

Tom C. Clark:

Not like ours then.

R. Foster Etheredge:

Right.

Now, may I say this in —

Hugo L. Black:

What you’re saying in effect here is that you’re may be right, isn’t it, that you had a perfectly good defense for this case from the Alabama law in Singleton?

You’d gone into Court but you didn’t chose to go in as a personal service.

And now, you’re saying that the judgment is invalid.

The whole involvement can get collaterally attacked anywhere as a complete nullity.

That’s your real argument.

R. Foster Etheredge:

Yes, sir, that’s my argument.

And, it’s been void in a nullity because of the fact that the Alabama Court didn’t have power to enforce this type of case.

Now —

Potter Stewart:

Why do you have to make that argument?

This was a default judgment.

R. Foster Etheredge:

Yes, sir.

Potter Stewart:

It was a default judgment.

You’re — the questions you’re now raising were not litigated before this default judgment were added, were they?

R. Foster Etheredge:

No, sir.

Potter Stewart:

Because it was default.

R. Foster Etheredge:

Right.

Potter Stewart:

Then as soon as they were litigated in this Court of the State of Alabama, the Circuit Court upheld your position, didn’t they?

R. Foster Etheredge:

That’s correct.

Potter Stewart:

Well now, why can’t you just rely on that?

R. Foster Etheredge:

Well, I–

Potter Stewart:

That’s a later expression of Alabama law by the Alabama Court.

R. Foster Etheredge:

Yes, sir, and I’m attempting to — I mean, that’s what we are relying on but, in an answer to that, I’m trying to suggest to you what that Court has said in some of the basis for its reasoning.

Maybe, as you say, it is not necessary for me to do that, but the Circuit Court of Jefferson County refused to — held this by, in effect, by its ruling on demurrer that this judgment was void and that the Court didn’t have jurisdiction.

Now, this Court, may I state also and that’s the next —

Hugo L. Black:

Do you think the judgment would have been any better or any stronger go in and litigate it in the law than it is now?

But in default, —

R. Foster Etheredge:

I don’t know —

Hugo L. Black:

— it’s a judgment, I suppose.

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

It’s the judgment.

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

That settles it, doesn’t it, if it’s a valid thing?

R. Foster Etheredge:

If the judgment is valid, if the Court has jurisdiction, it would be valid, yes.

But I’m suggesting to the Court that the cause of this decision of the Circuit Court is bottom down Singleton against Hope that the Court didn’t have jurisdiction of the subject matter, therefore, it is void and subject to collateral attack.

Hugo L. Black:

You’d have to go to the subject matter jurisdiction.

R. Foster Etheredge:

Yes, sir.

It is a subject matter.

Now, may I state to the Court, my brother cites three cases, Alaska, Pacific Employers, and Carroll against Lanza.

Those cases are not applicable here because that was the question of whether the state of the forum could apply its own compensation law where a defense of the home state was asserted against it.

In each of those three cases, as I suggested, they’re not really germane to the issue in this case.

Now, may I call your attention to one or two items which I think have particular pertinence here.

On page 9 of the brief of the respo — of petitioner-appellant’s brief, he’s fallen into grave error because, on that section, he quotes from context these words, “Either state would be free to adopt and enforce the remedy provided by the statute of the other state,” but what — now, what are the full words of the text from this Court’s decision against — in Pacific Employers.

While in — here’s the quote, “While in the circumstances now presented, either state, if its system for administering workmen’s compensation permit, would be free to adopt and enforce the remedy provided by the statute of the other state.”

You see, he left out the all important eight words in this case, “If its system for administering workmen’s compensation permit,” and this is precisely, I think, what this case at bar is all about.

We shall say more about this Pacific Employers case later.

Now, here’s what’s bothered me.

For one thing, this question about Pearson, and he relies to a certain extent on Pearson, where the — where we’ve got a result now in the State of New York, for example, where the law is applied to an airplane.

As you recall, it’s different from the law of — as were applied to an automobile in the question of limitation of damages and a wrongful death.

I haven’t resolve that yet in my own mind except of the interstate flavor in that case.

But what he has done is adopt a case as it present it to you on the question of this place of tort business and where you try to subs — differentiate where the forum applied its substantive law and applies its own procedural law.

I’m just suggesting to you that these cases are really not opposite in this case.

R. Foster Etheredge:

But also in the Alaska Packers case, petitioner quotes from the Alaska Packers case the Compensation Acts of either jurisdiction may consistently, with due process, be applied in either state, but here’s what the Court said in the Alaska Packers case.

It should be pointing out this, “We assume, as did the state court, that the remedy provided in the Alaska statute is one which could also be applied by the California courts.”

So, that you just made an assumption in this opinion that California would apply, for example, or could apply the Alaska statute, whereas, perhaps not.

Now, when the petitioner went into the Circuit Court of the DeKalb County, he first sued on an Alabama count under the Alabama Compensation Law, and then he struck it.

But Alabama could have entertained jurisdiction and given this petitioner an award under the Alabama Compensation Law under the cases of the holdings of this Court.

For example, the Court has held, this was in Alaska Packers, that the place of injury the forum state could apply its own statute even though the home state statute is asserted as a defense to it.

If this petitioner had stayed under the Geor — Alabama law, of course he could have recovered a judgment in amount of se — $11,200 which would have been more than the judgment that he obtained under the Georgia law of $10,000.

Now, I don’t know anything about this business of Zurich Insurance and all of that.That’s not in the record.

I do say this to you, that this trial court in the DeKalb County, Alabama gave a lump sum award of $10,000, then he awarded an attorney’s fee of 33.30% or $3,500 which he didn’t have a right to do either under the Georgia statute or Alabama statute because the Alabama statute limits it to 15% and the State Board in Georgia sets the attorney’s fees in the cases litigated or tried under the Georgia Act.

And another thing, under Alabama law, he didn’t even have the right to make a lump sum award unless both parties agreed to it, and that is the same — that’s — the same thing is true under the Georgia statute.

Now, in Pacific Employers case that I alluded to a while ago, this Court specifically in language said that, while the circumstances now presented — well, let me say this.

It is difficult to understand why the petitioner rely so heavily on the Pacific Employers liability case in his brief because in recognizing the rule of law which controls this case at bar, here’s what this Court said in the Pacific Employers case, “Full Faith and Credit would deny to California the right to apply its own remedy and its administrative machinery,” well, let me get that, “Full Faith and Credit would deny to California the right to apply its own remedy and its administrative machinery may well not be adopted to give him the remedy afforded by Massachusetts.”

Similarly, now similarly, the Full Faith and Credit demanded for the California Act would deny to Massachusetts the rights to apply its own remedy and its Department of Industrial Accidents may well be without statutory authority to afford the remedy provided by the California statute.

So this Court has recognized this.

This case, in essence, in that posture has been before you before.

Now —

Arthur J. Goldberg:

(Inaudible)

R. Foster Etheredge:

Yes, sir.

Arthur J. Goldberg:

Why is it that Alabama ended up with an identical workmen’s compensation statute?

R. Foster Etheredge:

Identical?

Arthur J. Goldberg:

(Inaudible)

R. Foster Etheredge:

My position would be the same that neither state could enforce or would have jurisdiction of the claim under an action if it was brought under that other state, if Alabama had it because it is a well-recognized principle running back, Pollard, Bailey, TCI against George where these things are so united that you can’t separate the provision of liability from the provision of remedy.

Arthur J. Goldberg:

(Inaudible)

R. Foster Etheredge:

Yes, sir.

Arthur J. Goldberg:

The complaint would have to be filed before the Georgia Commission.

R. Foster Etheredge:

Yes.

And if it was in Alabama, before the Alabama Commission, and that is nothing new because the Fifth Circuit has recognized that in the case of Vicksburg versus Cooperage when they have asserted the Louisiana statute as its defense to Mississippi, they said no, no, because the Louisiana statute is administered by the courts.

We administer our statute for the courts.

We’ll recognize and give jurisdiction, assume jurisdiction, and we’ll give you relief.

But they also held in this case, in J.A. Jones Construction Company, at the suit of Green, the Fifth Circuit has already decided this case.

R. Foster Etheredge:

The Fifth Circuit, in the case of Green versus J.A. Jones Construction Company, said that Mississippi would not have jurisdiction of a claim under the Georgia Workmen’s Compensation Law, in Fresquez against Farnsworth, and the Tenth Circuit has held the same thing.

He asked you the res — the petitioner to align the Fifth Circuit Court case of Green versus J.A. Jones with Alaska Packers, Pacific Employers, and the other case, Carroll against Lanza.

How can you align it?

That’s like trying to play football by the rules of tiddlywinks.

They’re just two different things.

Hugo L. Black:

May I ask you a question, Mr. Etheredge?

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

Suppose Georgia, instead of just being a personal injury case than a contract case, suppose they pass a law that they’re asking Georgia, the courts should not try contract cases.

They would allow recovery but it had to be before special Georgia agency.

Would you say that that would get you into trouble?

R. Foster Etheredge:

Well, that would give me trouble, yes, sir.

But I —

Hugo L. Black:

How would it give you any more than this?

R. Foster Etheredge:

Well, because —

Hugo L. Black:

Maybe it shouldn’t or should, but why would it?

R. Foster Etheredge:

Well, of course the theory would be it’s a question of whether or not — on the question of whether they could set up all contract actions itself under a statute, as to re —

Hugo L. Black:

But if they did —

R. Foster Etheredge:

As to —

Hugo L. Black:

If they did it and confide with Georgia law, they’d be in Georgia, wouldn’t they?

R. Foster Etheredge:

Well, that’s right.

Now —

Hugo L. Black:

Well, why wouldn’t it be possible in Alabama?

R. Foster Etheredge:

Well —

Hugo L. Black:

Like you say this is.

R. Foster Etheredge:

It would trouble me, but I think I would have to give precedent or allegiance or adherence to Georgia on the case if they said, “You first must exhaust administrative remedy,” because the con —

Hugo L. Black:

Suppose that that is the only remedy you could have?

We’re going to have completely this kind —

R. Foster Etheredge:

Well —

Hugo L. Black:

— before it went into the Court.

R. Foster Etheredge:

I don’t — Mr. Justice Black, I don’t think that’s — it may be and I don’t want to — but the point that I’m trying to say is that I don’t think that’s the issue because I don’t think that you can refuse Court jurisdiction to any claimant’s particular aspirations about the cause of action it’s creating because Georgia —

Hugo L. Black:

But that’s what you’re arguing here, isn’t it?

R. Foster Etheredge:

No, sir.

No sir, because in —

Hugo L. Black:

The course of action of some kind is created because —

R. Foster Etheredge:

Well, to me —

Hugo L. Black:

There’s money involved and there’s a due to pay it.

If he gets hurt in a certain way, it’s certain kind of injury.

R. Foster Etheredge:

But, Mr. Justice Black, if the Georgia Board is arbitrary or capricious, then the liti — or the claimant before the Board has a right then to go to the courts, but he must first exhaust his administrative remedy.

Hugo L. Black:

But suppose they’ve provided that in contracts in Georgia that you have to first exhaust the administrative remedy before you could go to the Court, but you could go —

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

Later on, and they came over to Alabama and said “We live over here, he over here, and we want to sue him here.”

Would that bar Alabama from trying to —

R. Foster Etheredge:

I think it would.

Hugo L. Black:

You think it would?

R. Foster Etheredge:

Yes, sir.

I think if we —

Hugo L. Black:

I think logically it would under your argument.

R. Foster Etheredge:

Yes, sir.

In the congress — and the Congress does that, I think, in many, many facets of human activity where they provide an administrative procedure and the age-old law is, I think, that you must exhaust the administrative procedure before you have access to the courts.

And of course, this, I think, and that is pertinent in this regard because it’s the same or similar thing as that that you must exhaust your administrative remedies before you go into Court.

Now, this claimant did not file for suit —

Hugo L. Black:

Suppose they had that law — let’s go one step further.

R. Foster Etheredge:

Alright, sir.

Hugo L. Black:

Suppose they had that law but Alabama had decided they couldn’t — it would follow but it gave its courts a jurisdiction of contract cases.

Could you go in and say, “You don’t have jurisdiction of this case”?

R. Foster Etheredge:

Yes, sir.

Well, I could say it and the Court —

Hugo L. Black:

Would you be right?

R. Foster Etheredge:

Well —

Hugo L. Black:

It takes up the — and it’s —

R. Foster Etheredge:

Yes sir.

But I want to answer that because I think it is very pertinent for instance.

And I’ve come a long way about it, if I may, if my time permits, in Kilberg — now, in Kilberg, which is a de — well, Pearson and Kilberg got on an airplane in New York, went to Massachusetts and had an accident.

Kilberg beat Pearson to the state court and got a judgment in the State Court of New York.

The Court of Appeals said, “Well, we’re going to recognize the Massachusetts’ wrongful death statute and we are going to apply — we are going to refuse to apply the limitation of damages.”

It’s contained and made a part of the Wrongful Death Statute of Massachusetts.

Now, they had for years said in automobile cases, in Lux against Standard Oil of New Jersey, that we — we will adhere or apply the Massachusetts limitation of damage, in spite of the fact that New York Constitution of 1894 prohibited by constitutional enactment that the State of New York could not impose a limitation on damages.”

Now, there came Pearson, died in that same accident, he went to the state court — I mean he went to the U.S. District Court.

Judge Kaufman, as you recall, wrote the decision.

You’ve read — you’ve refused certiorari in that case, and he said the business of this dichotomy of what is substantive and procedures got no place here because this has got an interstate flavor.

New York is so wrapped up in this thing that we’ve got our own rights to protect.

And what I’m suggesting to you in this case, Mr. Justice Black, is, on your question, that Alabama could say and this Court could upheld or uphold Alabama that Georgia’s policy is obnoxious stuffs and we’re not going to follow it.

In that, in this essence, is what was held — what was decided in Pearson.

Hugo L. Black:

Suppose it said the policy of this part of the Act was obnoxious if you’re trying to go into Court, suppose Alabama said that.

What will happen then?Could it try the case?

R. Foster Etheredge:

What the — I didn’t understand you, sir.

Hugo L. Black:

Alabama would say that the procedural part of Ala — of Georgia’s law was obnoxious to it, but it liked its other point.

R. Foster Etheredge:

Well, it hasn’t said it and in two —

Hugo L. Black:

What if it given a judgment?

R. Foster Etheredge:

Well, no, sir.

In two cases, this is a trial court —

Hugo L. Black:

I’m talking about this case here.

R. Foster Etheredge:

Well, I know, Your Honor, Mr. Justice.

But, in — in this case on the same type of facts, the Circuit Court said, “We’re not going — ” Jefferson County said, “We’re not going to enforce it because the DeKalb County didn’t have jurisdiction.”

Hugo L. Black:

What you’re saying now is that if you would’ve fought it in the DeKalb County Court, you could beat them.

R. Foster Etheredge:

Yes, sir.

I don’t think it had jurisdiction.

I’d go to my grave saying that it didn’t have jurisdiction.

Hugo L. Black:

May I ask you just one other question.

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

Then I won’t bother you anymore.

R. Foster Etheredge:

No, sir.

Hugo L. Black:

I’m asking this because of the vague recollection I have that sometime after the Georgia case, the case went up in Tennessee to this Court.

Judge Brandeis wrote the opinion in which he held that the Alabama statute which forbad other states to render judgments on its punitive death action cases was unconstitutional.

Am I right on that?

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

What was that case?

It’s not cited.

R. Foster Etheredge:

I know the case.

It’s right here and I can’t pull it out.

Hugo L. Black:

Well, I can’t either.

It seems to me like its Nashville and Chattanooga.

R. Foster Etheredge:

I think that’s right.

I’ll give it to you.

Hugo L. Black:

Alright.

R. Foster Etheredge:

What I’m trying to say though is, of course the judgments before us.

The DeKalb County Circuit judge took the paper and it wanted a judgment and awarded 33.30% fee and so forth, as I’ve remarked in the judgments there.

But it came for a studied effect, not on default, before the circuit judge in the Court of Jefferson County and he said that Court in the Dekalb County didn’t have jurisdiction because Alabama has already decided the case in Singleton against Hope.

I keep coming back to that.

Now —

Byron R. White:

Well, what is the — what do you conceive to be the normal rule of res judicata?

It normally covers matters that were litigated or could have been litigated —

R. Foster Etheredge:

Yes, sir.

Byron R. White:

In the case.

Now, does that extend the jurisdiction or not?

R. Foster Etheredge:

No, I don’t —

Byron R. White:

Mr. Justice Black asked you a moment ago that let’s assume that you would come in here and had litigated the jurisdiction and had lost.

R. Foster Etheredge:

No, sir, it would not decide it.

Byron R. White:

Well, I know, but let’s assume that you had come in, pleaded that — pleaded Singleton against Hope and the lower court refused to go with you.

R. Foster Etheredge:

Yes, sir.

Byron R. White:

And you lost, and you say you’d go to your grave saying, “No jurisdiction,” and you didn’t appeal.

And then, you defended in the Federal District Court on the enforcement of the judgment, “no jurisdiction.”

Would you make the same argument then?

R. Foster Etheredge:

Yes, sir.

Byron R. White:

What?

R. Foster Etheredge:

Yes, sir.

Byron R. White:

You would make the same argument.

R. Foster Etheredge:

Yes, sir.

Byron R. White:

There’s no difference between the two situations in your mind?

R. Foster Etheredge:

I don’t — the point that I think if the Court doesn’t have jurisdiction of the subject matter, and I cite the case of (Voice Overlap) statute —

Byron R. White:

You just say that — you just say res judicata never operates again on jurisdiction.

R. Foster Etheredge:

On the Board’s judgment of jurisdiction, yes, sir.

Where the Court doesn’t have the jurisdiction of the subject matter, it’s void and I can start out in the Justices of Peace Court and go all the way through up to you — a bit up to this Court and you can then, on your own motion, say that the Court or justice below did not have jurisdiction and throw the case out.

The pitch is made on page 25 of the petitioner’s brief that Alabama has a duty to prevent its citizens from coming to public charge and not Georgia, but the thing about that is Alabama could apply its Alabama compensation statute to this case because the injury occurred in Alabama and there’s no point in coming over to cross the line and applying the law of Georgia when this petitioner could have recovered a judgment for $11,200, $1,200 more than he got under this void judgment or wanted to get under the judgment of the DeKalb County Circuit Court.

Byron R. White:

He could have recovered more money under Alabama law, is that right?

R. Foster Etheredge:

Yes, sir.

Byron R. White:

But could he have collected it?

R. Foster Etheredge:

As far as I know, he could have collected it.

As far as this case is concerned, as far as this record is concerned, yes sir.

Byron R. White:

Well, of course, there must be some reason for somebody relying on the —

R. Foster Etheredge:

Well, presumably I recog — I represent Zurich Insurance Company.

And these matters have never been treated, that he mentioned.

And I don’t know about —

Hugo L. Black:

I guess you know it.

R. Foster Etheredge:

Sir?

Hugo L. Black:

I guess you know, it may not be material to you but he stated it, I guess it must be a fact.

R. Foster Etheredge:

Well, I would say and he suggested that there was no coverage in the Alabama operation.

I do not know that.

Hugo L. Black:

I mean about the insolvency.

R. Foster Etheredge:

Well, he is suggesting, I suppose, that Lawler, the contractor, was insolvent.

Hugo L. Black:

Yes.

R. Foster Etheredge:

But I don’t see how that has any place with Zurich, ultimate responsibility over on its contract.

Hugo L. Black:

It wasn’t.

R. Foster Etheredge:

No, sir.

Hugo L. Black:

It wasn’t it?

R. Foster Etheredge:

Right.

Hugo L. Black:

It’s not in the contract.

Byron R. White:

Well, except that Zurich wouldn’t be liable on Alabama — under Alabama law.

R. Foster Etheredge:

In this case —

Byron R. White:

Rendered — on the judgment rendered —

R. Foster Etheredge:

Would not be liable here.

Byron R. White:

Zurich would not be responsible, as Lawler would argue, in this case.

R. Foster Etheredge:

That’s right, because Zur — but because, in this case, Lawler, itself would not be responsible under this judgment and that’s why we’re here.

That’s right.

William J. Brennan, Jr.:

Now, I wonder, Mr. Etheredge when an Alabama Court says “Well, we could give you a recovery, the injury happened here, under our Workmen’s Compensation Act, under our common law rule but now, we’ll pick something else out.

We’ll give you recovery under the Massachusetts law, the Georgia law, or something else.”

Are they really giving a recovery under Georgia law or are they giving a recovery under Alabama law?

R. Foster Etheredge:

Well, I think that they’re giving recovery under the Georgia law that they just recognized that they’ll implement or give operation to that cause of action created under that law.

I don’t think they’re substituting their own rule making power of the Court for the statute of the sister state.

William J. Brennan, Jr.:

Are you familiar with the principle for example if we apply in the national law cases.

You say “We’re not applying international law.

We’re adopting an international rule as our forum law.”

Why isn’t that something like this?

Is this case something like that?

R. Foster Etheredge:

Well, it may be, Mr. Justice Brennan.

I don’t know.

William J. Brennan, Jr.:

Well, if that’s so, then what is the whole Full Faith and Credit argument?

R. Foster Etheredge:

Sir?

William J. Brennan, Jr.:

Then what is there then for the whole jurisdictional argument, if that’s actually what they did?

Just picked out the law that they chose to apply as Alabama law for the purposes of the clauses, if that’s what we’ve done then there’s no jurisdictional argument.

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

What bothers me about that is, why do we not have to assume that that’s what the state court did if that’s necessary to see the constitutionality of the action?

R. Foster Etheredge:

What is that, Mr. Justice Black?

Hugo L. Black:

Why do we not have to assume that they rendered the judgment, they rendered it on the basis that it’s Alabama law that authorized it?

R. Foster Etheredge:

Well, the Alabama law, it was the point that I was making, didn’t authorize it.

Hugo L. Black:

Well, I know.

That’s —

R. Foster Etheredge:

In Singleton against Hope —

Hugo L. Black:

I know.

R. Foster Etheredge:

The Supreme —

Hugo L. Black:

That’s right.

R. Foster Etheredge:

— Court had spoken —

Hugo L. Black:

If you had raised it.

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

If you had raised it.

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

But you keep — it brings me back every time to the fact that it wasn’t raised because it is a judgment against it.

R. Foster Etheredge:

Well, that is correct and we were not there so, therefore, we had no voice.

Now, we have a voice and we do assert it.

Hugo L. Black:

You had a voice if you hadn’t been gone.

R. Foster Etheredge:

Sir, that’s correct.

But still — it still is–

Hugo L. Black:

You’d go, just take your — all of your case on the idea that the judgment would be bad in that count.

R. Foster Etheredge:

Well, I think it’s — the Supreme Court of Alabama said we wouldn’t entertain jurisdiction of a claim under the Georgia Act and that’s fine on the Circuit Court.

When the Circuit Court entered the judgment on it —

Hugo L. Black:

Would it have been binding if you’d raised it?

R. Foster Etheredge:

I think it was void.

Sir?

Hugo L. Black:

If you’d raised it, it would’ve been binding.

R. Foster Etheredge:

Well, I just say in that regard that if the Court in DeKalb County, and we assert, did not have jurisdiction to administer or to implement or give voice or credit or credence to the Georgia statute and not having that power to do so, then the judgment is void and is subject to attack here.

Hugo L. Black:

Did the accident happen in DeKalb County?

R. Foster Etheredge:

It happened in Alabama.

Hugo L. Black:

Did it happen in DeKalb County or it hadn’t happen in DeKalb County?

R. Foster Etheredge:

They’re certain, and there’s a complaint says that it happened in DeKalb County.

Hugo L. Black:

And under the law of Alabama, as I recall it, that’s the county that had jurisdiction.

That Court had jurisdiction of the case of an injury, to cover an injury that happened in Alabama.

R. Foster Etheredge:

Yes, sir.

It could have applied its law.

Hugo L. Black:

Its law?

R. Foster Etheredge:

Yes, sir.

Hugo L. Black:

And, we don’t know whether it did or not.

R. Foster Etheredge:

It did not.

It applied to Georgia law.

Hugo L. Black:

How do we know that?

R. Foster Etheredge:

Because it says in the complaint.

Hugo L. Black:

How do you know that it didn’t adopt it, just as Mr. Justice Brennan said?

R. Foster Etheredge:

Well, it says that only paper pleading before it is the claims that under the law of Georgia, and the judgment reveals and reflects that he had to administer the law of Georgia.

Hugo L. Black:

That he had what?

R. Foster Etheredge:

Well, if you read the judgment and the complaint in the case, he makes an award under the Georgia law to the amount of $10,500 or whatever it was.

So it couldn’t have been any other law.

Hugo L. Black:

Well, of course, the Alabama had a right.

I don’t know if we have to reach it, but it had a right to try and say, “We’ll just adopt it and say that the act that happened in Alabama in DeKalb County and we’ll give a remedy on this,” and we’ll measure the damages by what you would have gotten under the Georgia law, whatever it was.

R. Foster Etheredge:

Well, I think if the Court would have their peculiar situation in compensation fee.

And that we’d say, in every instance, “We’ll adopt the Massachusetts statute, we’ll adopt this statute, we’ll adopt this statute, and give you a remedy under it.”

Tom C. Clark:

It depends on whether the parties were under that statute jurisdiction.

R. Foster Etheredge:

Adopt —

Tom C. Clark:

Here, they were under the Georgia statute, as well as the Alabama but they adopted the Alaba — the Georgia law as Alabama law and abide it.

R. Foster Etheredge:

Well —

Tom C. Clark:

Can you say that’s against the federal clause as announced by the Supreme Court if you didn’t appear.

You were legally served, were you not?

R. Foster Etheredge:

The contract of Lawler — the record is that Lawler was served.

Yes, sir.

Earl Warren:

Yes.

Mr. Pope.

Max C. Pope:

Mr. Chief Justice, may it please the Court.

I think one of the most distinguishing characters in this question that’s been raised is Singleton versus Hope Engineering Company, our words, as I say, it was a default judgment.

The law in Alabama, and it says as I quote from the Kilberg versus Southern Auto Insurance Company, said it’s almost universally held that where there is no proof of the law of another state, it will be presumed that the law of the forum in which the issue is being tried is the law of the state on the question involved.

In our case, there was no proof of this administrative procedure of the Georgia law.

In the Singleton versus Hope Engineering Company, there was a demurrer filed to a common law action alleging the Georgia law in Alabama courts, contrary to the federal courts, federal courts take judicial notice of all the states law.Of course, one — I heard one judge say that he may take judicial notice of it.

He’d like to have his recollection refreshed.

However, in this case, there was no pleading of the Georgia statute as a defense or any provisions of it as a defense to deprive the Alabama Court of any type of jurisdiction in this case.

Arthur J. Goldberg:

Hasn’t the Georgia statute pleaded at least one?

Max C. Pope:

The substantive part of it was pre — pleaded, yes, sir.

You’re right, sir, but —

Arthur J. Goldberg:

Would you think that (Inaudible) under the Georgia statute?

Max C. Pope:

I don’t think so.

There are different statutes involved in it and I think if they pleaded one statute, I don’t think that the — the mere pleading of one statute would bring them all in.

They don’t take — the Alabama Court does not take judicial notice of sister state statutes unless they are proved under the procedure outlined in the Alabama Act.

Tom C. Clark:

I thought your argument was that they rejected this procedure but adopted the statute.

Max C. Pope:

You’re exactly right, sir.

Tom C. Clark:

So it doesn’t matter whether the statute is there or not, does it?

Max C. Pope:

Well, that’s it, but what I’m trying to say is the answer to the Singleton versus Hope Insur — Engineering Company that there was no alleged Georgia law as a defense to this cause of action and it was presumed, as some of the Justices have said that they took and as the Pearson case also said, that New York took the corpus of the Massachusetts law and adopted it as its own law.

This is what — this is what in the essence it did in that case.

And also in the Pearson case, in an answer to this argument about the remedy, and all of this stuff is so inseparable that it cannot be separated, the Court in the Pearson case said we are directed to no precedent and are unaware of any compelling logic in the defending a precedent which requires a state to enforce such a statutory qualification whenever it chooses to enforce a foreign cause of action.

Arthur J. Goldberg:

(Inaudible)

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

The pleading here is not in the record.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

And this is the written complaint.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)– which is not the Compensation Law of Georgia.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

How could Georgia do anything without competence?

Forget about the remedy for a moment.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

And obviously to enter a judgment on this complaint to support the (Inaudible) in Georgia have in Pearson, would it not?

Max C. Pope:

Not in —

Arthur J. Goldberg:

That would be the basis of the courts, what can be the basis — when the plaintiff who didn’t abuse it.

Max C. Pope:

Well, the Georgia statute is made up into several different section in my opinion and, according to Statute — Title 7 of 429 of the Alabama Act, “On proving statutes of other states, you have got to have an expert or this statute has got to be filed on record in the Secretary of State’s Office and this has got to be certified to the Court or an expert on the law of that state.”

Now, the attorney that represented the petitioner in the trial court, I don’t know whether he was an expert on the law.

Oh, I do not know whether he knew the whole law and I just —

Arthur J. Goldberg:

That’s the procedure in Alabama.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

Do you prove damages under a default judgment?

Max C. Pope:

Yes, sir.

You have to prove damages under a default judgment.

This is one of the requisites of a default judgment.

Arthur J. Goldberg:

They would be making substantive effort if they proceeded with the filing of this case (Inaudible).

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

(Inaudible) Georgia compensation statute?

Max C. Pope:

I —

Arthur J. Goldberg:

That is the problem of this complaint?

Max C. Pope:

My idea is that if it does not, the — it was not upon the petitioner to prove a defense that could be set up possibly against him.

Arthur J. Goldberg:

I’m not talking about a defense.

Max C. Pope:

Yes, sir.

I — well, —

Arthur J. Goldberg:

I’m talking about the claim.

Would it not, in support of the claim, set forth in the complaint —

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

Would you not have to prove — forget about a defense, forget about the remedy.

Max C. Pope:

Yes, sir.

Yes sir.

Arthur J. Goldberg:

Would you not have to prove such benefits that he’s entitled to receive under the Workmen’s Compensation Laws of Georgia?

Max C. Pope:

Yes, sir.

Yes sir.

I — in this case, the Georgia statute says, where a person is totally disabled and the judgment recites that he was totally disable, they have a compensation where he can be awarded a lump sum of $10,000.

And in this case, he was awarded a lump sum judgment.

I cannot see where the respondent has been injured in this matter.

The judgment was rendered.

They did not appeal.

They did not raise these jurisdictional matters in the Court, and the Alabama Court does not take judicial notice of its sister state statute and they can only be proven as set out in the Alabama statute.

Now, my brother raises the TCI versus George case.

The dictum, and it says where the right and remedy are so inseparable, and this rule came from the Pollard versus Bailey case which arose.

It was not a diversity case.

It was a diversity case in the Federal District Court in Mobile, Alabama.

In that case, there was involved the stockholder’s liability to the bank’s creditors and it all depended on the interpretation of the charter of the bank.

And in this case, this was before in the federal courts that the law and equity were merged and in that case, this was a law action and this Court said that the stockholders were liable a pro rata share of their stock as to the amount of debts.

And they said there was only one of them before the Court.

It had to be in equity where they could all be enjoined and they — be joined in accounting and there could be an accountant to determine the pro rata share, and this is where that rule arose.

Now, in any of the other cases, they cite this rule in the TCI versus George case but it does not follow.

It cites it as a proposition.

It’s only dictum, and this other case is not in context with.

And the Pearson case is just — the opinion in that case is so well written and Judge Kaufman says in that case, he was referring to the Alaska Packers case, he said the Court, talking about the Supreme Court, expressly recognize that rights asserted under the statute of one state may be necessarily denied or qualified by the law of another state.

Now, the law in Alabama is, when you’re injured, when you’re entitled to compensation, that the way to enforce it is in the Circuit Courts in Alabama.

And this is what the Alabama Court did.

They used the old rule that the forum state uses its own procedure and uses the substantive law of the forum state.

Now, Judge Kaufman said he did not pay any attention to this legal tort, that it was the result to speak the loudest to him that the person was entitled to their money and there was no — no policy reasons or the Court of the forum not to give it to him.

Now, Mr. — the Carroll versus Lanza case, in this case, this Court, when it handed down this opinion, they said, true enough, this is not — the facts are not just exactly alike but, they said, “For we write not only for this case and this day alone, but for this type of case.”

Max C. Pope:

And in this case, this is the same type case as the Carroll versus Lanza case and here, the only difference and we as — trying to get affirmative relief and not raising it in — the petitioner — the respondent has not raised it as a defense.

And I just can’t see how the words in the Carroll versus Lanza case does not authorize the Alabama Courts even though that the matter had been raised as a proper defense, which I say it was not, even though it had been raised, the Carroll versus Lanza case authorizes the Alabama Court to ignore, if they can displace the entire queries of land to be drawn.

If —

Arthur J. Goldberg:

Well, how would you get around Singleton, assuming it has been raised by a proper demurrer as it seemed?

Max C. Pope:

Well, I —

Arthur J. Goldberg:

Would you say — isn’t it — do I read Singleton correctly that your Court in Alabama has said that where a property raised by a demurrer, the demurrer would be sufficient?

Max C. Pope:

I made that assertion, if the facts in Singleton versus Hope were the same here, sir.

It was a common law action in Singleton versus Hope and the demurrer was filed alleging the Georgia law, and the — another thing, another policy reason in this, the defendant in that case was a Georgia corporation, also the accident happened in Georgia.

I don’t know.

The record doesn’t disclose in that case whether the person was a resident of the State of Alabama and —

Arthur J. Goldberg:

But, Mr. Pope, your complaint — I go back to your complaint.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

You assert a right in your complaint under Georgia law.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

There is no question before us as to your right, if you had wanted to proceed under Alabama law, but in Singleton, I have the Singleton decision before me —

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

And it says “The rights ought to be enforced at its origin and existence in the Georgia Workmen’s Compensation statute.”

Max C. Pope:

Right, sir.

Arthur J. Goldberg:

The remedies for its breach are recoverable in the manner provided by proper pleadings of procedure before the Industrial Commission of our sister state.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

Such remedies are exclusive.

There was no error in sustaining the demurrer.

It then went on.

So, assuming, as we must, in your complaint that your course of action had its origin in the Georgia law, I take it that had by proper demurrer and the questions is — it was not raised here or recognized.

Max C. Pope:

Yes, sir.

Arthur J. Goldberg:

Had it been raised by a proper demurrer, your law in Alabama would have been, as expressed in Singleton, to sustain that demurrer.

Max C. Pope:

It in — it indicates that, except the one fact there was a common law action in this.

Now, I would agree that the language in the case Singleton versus Hope does advance that proposition, but the facts are not the same.

If the facts were the same, I would say that would be the law but it is not.

The facts are different.

Max C. Pope:

It’s a common law action.

And here, this is the Compensation Act.

The facts, to me, are different.

I —

Arthur J. Goldberg:

I think the facts are stronger in support of Singleton in this case, had it been raised by a demurrer because the complaint expressly rests on the Georgia statute.

Max C. Pope:

Well, I see your logic behind it.

However, I think the Singleton versus Hope case is more important with the Carroll versus Lanza case and it was a 1931 case which is a good time beyond that, but it was a common law action in both cases.

In Alabama, they decided to recognize the exclusive effect of the Georgia statute in the Singleton versus Hope case, which they did not in the Carroll versus Lanza case and I think the Alabama Court did not violate the Full Faith and Credit Clause by not applying the Georgia provision of the Georgia statute.

And mainly, that’s the only issue for this Court to determine.

Hugo L. Black:

Is the Singleton case the last one that was decided?

Max C. Pope:

Yes sir, on the — on this one issue, 19 —

Hugo L. Black:

And this when your judgment shows that the defendant’s first filed an answer, filed an appeal.

Max C. Pope:

Yes, sir.

Hugo L. Black:

Through a lawyer.

Max C. Pope:

Yes, sir.

Hugo L. Black:

Later on, on the day, the lawyer came up and withdrew.

Max C. Pope:

Yes, sir.

Hugo L. Black:

And they took and prove that the company knew it.

Max C. Pope:

Yes, sir.

Hugo L. Black:

And they then said it entered under the judgment by default heard damages with reference to the injuries and found that they were totally permanent —

Max C. Pope:

Yes, sir.

Hugo L. Black:

And rendered a judgment for $10,500.

Max C. Pope:

Yes, sir.

Hugo L. Black:

That’s all your judgment shows.

Max C. Pope:

I believe it does.

As Mr. Etheredge said, I believe it does provide for some attorney’s fees.

Hugo L. Black:

But what I’m talking about is that it doesn’t refer to the law or anything else.

It just says that —

Max C. Pope:

Well, I see — I think you are right in the view of the Pearson case.

In other words, it looked like Alabama could just adopt it and say the Georgia law is the Alabama law in this case.

Max C. Pope:

However, I think the procedure in Alabama is, like Mr. Etheredge said, I think it is as the complaint has alleged and you take a judgment, so to speak, on that complaint.

This will be my understanding of it.

However, I think, according to the Pearson case, it could be said that the only thing Alabama did was to say the Georgia law is the Alabama law.

This is the way we’re going to enforce it.

We do not violate any law — any federal law.

We do not deprive the petitioner — the respondent of any due process or any rights he has under the Full Faith and Credit Clause of the United States Constitution.

Hugo L. Black:

Your reference to the Georgia law was that you want to recover the amount that would have been recoverable under Georgia law.

Max C. Pope:

Yes, sir.

That was —

Hugo L. Black:

That was your sole reference to it, wasn’t it?

Max C. Pope:

That was the sole reference.

Hugo L. Black:

As I see it.

Max C. Pope:

That was the sole reference to it.

In — in its — I think one thing about the Pearson case that brings it up and also the Babcock versus Jackson case which is a New York case, it came out.

Judge Fuld, in that case, said that to give regard — give any thought to this recognizing part of it and denying part of it, he said it would give rise or give — we would have to raise the relics of the vested rights theory.

In a dissent in the Clay Insurance case, when it first came up the first time from the Fifth Circuit —

Earl Warren:

Go finish your statement.

Hugo L. Black:

When it came up, the dissenting opinion in that case in a footnote, Footnote 15, it said Constitution requiring blind and unfair application of the internal law, the place of making, which he was talking about a contract of course, is a return to that outmoded and territorial and vested rights theories of conflicts of laws long ago outgrown by our jurisprudence.

I maintain that Georgia had no vested rights in this administrative right.

It’s different than the federal laws where the federal law is supreme law and it’s not analogous to the state versus state.

That is all.

Thanks.