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JEFFREY OWEN WHITE v. MALONE PROPERTIES

MARCH 12, 1986

JEFFREY OWEN WHITE
v.
MALONE PROPERTIES, INC. AND CARROLL D. MALONE d/b/a MALONE CONSTRUCTION COMPANY



BEFORE PATTERSON, C.J., PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

Because our statutes of limitations are more liberal than those of many of our sister states, particularly those states immediately surrounding our borders, many a laggardly plaintiff casts a hopeful eye in our direction. We will furnish him a forum if his action lies with the jurisdiction of one of our courts. Where the center of gravity of his action lies in Mississippi, we will afford him the benefits and protections of our laws. But where, as here, his claim arose factually wholly in another state, and where the center of gravity of the action lies in that other state, we will ordinarily enforce the law of that state, notwithstanding that our law may have been more charitable to plaintiff. It is against this background and in this context that we affirm the judgment from which this appeal has been taken.

In June of 1977, Jeffrey Owen White, Plaintiff below and Appellant here, moved to Chalmette, Louisiana, because his wife had a job there. She worked in a Western Sizzlin Steak House doing waitress work. Jeffrey was a carpenter, building Western Sizzlin Steak Houses. He had been working for Malone Properties for approximately one week when on June 20, 1977, he was injured on the job.

 According to White he has "laying out" underneath a window and bricklayers were above him throwing bricks to each other. He was beneath some scaffolding and someone yelled "bricks falling" or "watch your head. White moved on reflex and hit the steel scaffolding. The foreman, Joe Calvern, witnessed the injury as well as an older man whose name White cannot remember. White was very dazed - could not stand and had to sit down for the remaining thirty or forty minutes in the workday. His wife took him to the hospital the next morning. When he returned from the hospital and attempted to

 go back to work, he was told that he was fired," because they couldn't take a chance on working me ".

 White testified that in all, he and his wife stayed in New Orleans or Chalmette or in that general area two, or possibly three years, then left to go" home "to Mississippi because he wasn't able to work. Upon his return to Mississippi he tried to work a number of different places: construction, reconstructing the capitol building in Jackson, sharpening knives in a chicken plant, but is now unable to maintain any type of permanent job because of a seizure disorder which has developed from this injury. After this injury Royce White, Jeffrey White's uncle, represented him in Social Security hearings to obtain disability payments. He did not file suit against anyone at that time. White testified at his deposition that he never filed a claim against Malone Properties for compensation because he didn't know that they had compensation insurance and because he was going to try to work this thing out on his own -" I'm not one to sue anybody. "White finally agreed to bring this suit because of his inability to find work and the failure of rehabilitation programs to prepare him for any other field of work. His suit was filed on September 16, 1982 - five years, 88 days after his accident - and asserted a failure to provide a safe place to work tort action.

 This appeal arises from an order of summary judgment entered in the Circuit Court of Harrison County on June 14, 1983, in favor of Defendants, Malone Properties, Inc. and Carroll D. Malone d/b/a Malone Construction Company, finally dismissing White's complaint. The trial judge found, in considering the depositions, discovery and other matters on file, that there were no genuine issues of material fact, that the law of Louisiana was the appropriate law to be applied regarding the dispositive issues in this action, and that Defendants were entitled to judgment in their favor as a matter of law. See Rule 56, Miss.R.Civ.P.

 This action was wholly within the subject matter jurisdiction of the circuit court - it may not be seriously argued to the contrary. The complaint sounds in tort and charges negligence, matters which when well pleaded (as here) are sufficient to bring a case within the subject matter jurisdiction of any circuit court of this state. Luckett v. Mississippi Wood, Inc., (Miss.No.54,974, decided November 27, 1985) (not yet reported); see also, Penrod Drilling Co. v. Bounds, 433 So.2d 916, 924 (Miss.1983) (Robertson, J., concurring). Matters such as domicile of the parties and where the tort occurred may affect the resolution of questions of in personam jurisdiction, venue and choice of law.

 Logically, they may not implicate subject matter jurisdiction. In the present context the choice of law inquiry is outcome determinative.

 White's only practical hope on this appeal is that he might somehow persuade this Court that his claim is controlled wholly by Mississippi law, including our familiar six year statute of limitations on tort claims, Miss. Code Ann. 15-1-49 (1972), and that his claim is not barred by the limitations or exclusiveness of liability sections of the Mississippi Workers' Compensation Act. Miss. Code Ann. 71-3-9 and 35 (1972).

 If Louisiana law applies, White's plight is hopeless as a workers' compensation claim - Louisiana law presents him the twin barriers of an exclusiveness of liability clause L.S.A.-R.S. 23:1032, As Amended By Acts 1976, No. 147; see also Malone & Johnson, 14 La.Civ.L.Tre. 361 (1980) and a two year statute of limitations. As a tort claim for negligence, White fares no better under Louisiana law for there he confronts a wholly valid and enforceable one year statute of limitations. 15 LSA - C.C. 3492 (Supp.1985) *fn1.

 Today's choice of law question must be decided by a proper application of our familiar center of gravity test, first applied by this Court in tort cases in 1968. Mitchell v. Craft, 211 So.2d 509, 512 (Miss.1968); Fells v. Bowman, 274 So.2d 109, 112-113 (Miss.1973); Boardman v. United States Automobile Ass'n., 470 So.2d 1024, 1030-31 (Miss.1985). In essence, this test mandates that we inquire regarding the extent of the contacts the competing states, Louisiana and Mississippi, have with the parties and the action. *fn2

 The significant contacts here appear as follows: (1) White was a resident of Louisiana before he accepted the job with Malone Properties. (2) White was hired in Louisiana. (3) White worked exclusively in Louisiana while employed by Malone Properties. (4) White's injury occurred while on the job in Louisiana. (5) White was treated for and hospitalized for this injury in Louisiana. (6) Malone Properties, Inc. and Carroll D. Malone d/b/a Malone Construction Company were doing business in Louisiana. (7) The insurance was paid in Louisiana (8) Jeffrey and Idea Mae White considered Mississippi home. (9) Malone also does business in Mississippi.

 A balance of these significant contacts makes it apparent to us that Louisiana furnishes the center of gravity. Under our law, therefore, Louisiana law is appropriate for application. We emphasize that White was not hired in ...


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