I do not contend that our statute, to which the majority refer, should receive the same construction as that given to the Oklahoma statute, to which the majority also refer, by the Supreme Court of that state. But we must accept the construction of the Oklahoma statute given it by the Supreme Court of that state. The majority concede this construction to be that a joint cause of action is created against the insurer and insured in favor of persons injured by the *Page 852 negligent operation of motor vehicles on the highways of that state pursuant to a permit, and that such action is joint to the extent of the coverage of the policy of insurance. The statute of Oklahoma does not profess to make the insurer and the insured joint tortfeasors, but it does constitute a joint cause of action to the extent of the insurance coverage.
The collision occurred in Oklahoma, and the question of liability, therefore, must be determined by the laws of that state. This liability is not a question of procedure, but is one of substance. This question was thoroughly considered in the case of Mosby v. Manhattan Oil Co., 52 F.2d 364, and is annotated in 77 A.L.R. 1099.
It was held in the case just cited that the courts of one state will enforce substantive rights existing under the laws of another state if not contrary to the public policy of the forum state, and that the fact that the laws of one state differ from those of another does not make the laws of one contrary to the public policy of the other.
There, a suit was brought in the district court of the United States for the western district of Missouri, for damages claimed to have resulted from a nuisance alleged to have been created and maintained by defendants in the state of Kansas. It was said in the body of the opinion that "It is conceded that by the law of the forum (Missouri), the action, in view of the evidence, could not be maintained in Missouri against the defendants jointly." But a joint cause of action could be maintained in the state of Kansas, where the injury was done; and the damage caused.
The opinion quoted from Minor on Conflict of Laws, 194, as follows: "The law of the situs of a tort is of course the `proper law' to govern the liabilities and rights arising therefrom. If not liable by the lex loci delicti, the general rule is that the defendant will not be liable elsewhere. If liable by that law, he will usually be held liable wherever the question arises to the same extent as if he were sued in the locus delicti itself." *Page 853
Under the law of Oklahoma, which fixes the liability of the defendants in this action, there was a joint cause of action against the insured and the insurer (to the extent of the insurance coverage), and as this is a transitory action the plaintiff should be allowed to enforce here the right of action conferred upon him by the laws of the state where he was injured.
I, therefore, dissent from the dismissal of the cause as to the insurance company; and am authorized to say that Justices HUMPHREYS and MEHAFFY concur in the views here expressed.