At about 9 p.m., May 30, 1939, appellee, M.A. Blackford, was driving a Pontiac automobile, the property of appellee, Heston, in which the other Blackford appellees were riding as guests, in an easterly direction on highway 64 in Moffett, Oklahoma, approaching the Oklahoma end of the Ft. Smith bridge which crosses the Arkansas river. Appellant McAlister was driving west on said highway in a truck owned and operated as an interstate carrier by appellant Hallum, into and through the states of Arkansas and Oklahoma. A collision occurred between the car and the truck which resulted in damage to the car and personal injury to some of its occupants. This suit was instituted by appellees, all residents of Ft. Smith, in the Crawford circuit court, at Van Buren, against said Hallum and said McAlister and against the National Mutual Casualty Company, hereinafter called the Casualty Company, the insurance carrier on the trucks operated by Hallum, to recover damages. The complaint alleged the ownership of the truck as aforesaid and negligence of McAlister in driving it onto the wrong side of the road, and into the car in which appellees were riding. As to the Casualty Company, it was alleged that Hallum's truck was being operated under a permit issued by the Corporation Commission of Oklahoma; that under the laws of that state, he was required to carry public liability and property damage insurance which he did under a policy issued by the Casualty Company. It was further alleged that the laws of Oklahoma create a joint cause of action against insured and insurer in favor of persons injured by the negligent operation of motor vehicles on the highways of said state pursuant to such a permit, and that such action *Page 849 is joint to the extent of the coverage in said policy. Judgment was prayed for a large sum of money.
The Casualty Company filed a petition and bond for removal to the federal court, it being a non-resident of Arkansas, on the ground of a separable controversy, which was denied. In its petition as also in its separate answer the Casualty Company alleged that the complaint shows on its face that whatever cause of action appellees may have against it, if any, is based on a contract of indemnity between it and Hallum, "and that if such right exists or should hereafter accrue, it is through subrogation and it is an action based solely on contract. . . . under the law of Arkansas an action in tort and an action in contract cannot be joined." Appellants separately answered with a general denial and a plea of contributory negligence. In addition, the Casualty Company pleaded the limit of its liability in any event was $10,000 for personal injury and $300 for property damage claimed by Heston.
Trial resulted in verdicts and judgments totaling $10,235.
For a reversal, it is first insisted that the court erred in refusing to direct a verdict for appellants at their request so to do. We cannot agree that a question of fact was not made for the jury. The testimony is in direct conflict. That for appellees shows that the collision was due to the negligent driving of appellant, McAlister; that for appellants shows it was due entirely to the negligent driving of appellee, M.A. Blackford. It is said the physical facts belie the testimony of appellees. We are unwilling to give assent to this contention, even though the circumstances strongly point in that direction. We think it unnecessary to set out in detail the testimony of the various witnesses. Suffice it to say a case was made for the jury on the issues in dispute.
Nor do we think it necessary or proper to discuss the error assigned and argued as to the refusal of the court to remove the cause to the federal court, in view of the disposition we make of the error of the court in permitting the Casualty Company to be joined as a defendant *Page 850 in this action. The question was raised in the petition for removal, in the answer, in objections to testimony and in a request for a directed verdict.
It appears that the statute of Oklahoma, as construed by the Supreme Court of that state, permits such joinder. Section 3708, Okla. Stat., as amended by Chapter 156, Session Laws 1933, 47 Okla. St. Ann., 161, et seq.; Enders v. Longmire, 67 P.2d 12. Our statute, 2025, Pope's Digest, the last paragraph of subsection (e) provides: "In consideration of the premium stated in the policy to which this indorsement is attached, the company hereby waives a description of the motor vehicles to be insured hereinunder, and agrees to pay any fine or judgment for personal injury, including death, resulting therefrom and/or damage to property, other than insurance, caused by any and all motor vehicles operated by the assured, pursuant to a certificate issued by the Corporation Commission of the State of Arkansas within the limit set forth in the schedule shown hereon, and further agrees that upon its failure to pay any such final judgment, such judgment creditor may maintain an action in any court of competent jurisdiction to compel such payment. Nothing contained in the policy or any indorsement thereon, nor the violation of any of the provisions thereof, by the assured, shall relieve the company from liability hereunder or from the payment of any such judgment."
While this court has never directly construed this statute as to whether the insurer may be joined with the insured in an action for personal injury or property damage, we have inferentially done so in construing similar provisions in Act 196 of 1927, 7774 and 7775, Pope's Digest. In Universal Automobile Ins. Co. v. Denton, 185 Ark. 899, 50 S.W.2d 592, we held that the above statute did not permit a joinder of insurer and insured under an allegation of insolvency of the insured. The language above quoted from said 2025, "and further agrees that upon its failure to pay any such final judgment, such judgment creditor may maintain an action in any court of competent jurisdiction to compel such payment," simply means that if it fails "to pay *Page 851 any fine or judgment for personal injury" against the insured, then an action may be maintained against it to compel payment, and it does not and cannot mean that it may be sued either jointly or severally before a judgment has been had against the insured.
But, say appellees, conceding such to be the law in Arkansas, it is not the law in Oklahoma where the cause of action arose, and that the law of that state governs. We cannot agree. In this state an action in tort cannot be joined with an action in contract. Section 1283 of Pope's Digest provides in seven subdivisions what causes of action may be united in the same complaint, and an action in tort and in contract are not provided for. Kentucky from which we borrowed the above section of the Civil Code so holds. C. O. R. R. Co. v. Patton,146 Ky. 656, 143 S.W. 25.
Furthermore, we think the right to join the insurer in this state is governed by the law of the forum. It relates to the remedy and is a procedural matter, not one of substance. If a judgment is obtained on a retrial against the insured, the appellees have a complete remedy against the Casualty Company, if such judgment is not paid. But the insured and his driver have the right to a trial without evidence of the fact that an insurance company will have to pay any judgment rendered against them.
The judgment will therefore, be reversed and dismissed as to appellant Casualty Company, and will be reversed as to the other appellants and remanded for a new trial.
SMITH, HUMPHREYS and MEHAFFY, JJ., dissent.