¶1dissenting:
¶2I cannot agree with the majority opinion.
¶3This action was brought against John Doe. The insurance company is not a party to it. It is an ex delicto and not an ex contractu action. The purpose of the suit is to determine the liability, if any exists, of John Doe to plaintiff Hodgson.
¶4The ex contractu feature would come if and when the ex delicto action had been decided in favor of plaintiff Hodgson. If Mrs. Hodgson recovered a judgment against John Doe in the ex delicto action in Tennessee, then under the uninsured motorist law she could sue the insurance company in Virginia under her policy of insurance.
¶5In my view it was never the intention of the legislature for a plaintiff to combine an ex delicto suit with an ex contractu suit in order to give Virginia courts jurisdiction.
¶6In this tort action against John Doe the laws of the forum (Tennessee), where the accident occurred, would control. Atlantic Coast Line R. Co. v. Withers, 192 Va. 493, 65 S. E. 2d 654.
¶7We said in John Doe v. Brown, 203 Va. 508, 514, 515, 516, headnotes 4 and 5, 125 S. E. 2d 159, 164, 165:
“This is not an action arising ex contractu to recover against the insurance company on its endorsement. The insurance company is not a named party defendant and judgment cannot be entered against it in this action. This is an action ex delicto, since the cause of action arises out of a tort, and the only issues presented are the establishment of legal liability on the unknown uninsured motorist, John Doe, and the fixing of damages, if any. This conclusion is strengthened by the language used in § 38.1-381 (g), which reads: … nor may anything be required of the insured [plaintiff] except the establishment of legal liability * ….’ ”
¶8As said in Section 1, Volume 47, Virginia Law Review, page 163:
“Venue presents another problem. Since the insurer is not technically a party defendant, venue cannot be based upon the insurer’s residence. Moreover, since the real defendant [John Doe] is unknown, venue cannot be based on his unknown residence. Technically, therefore, the suit can only be brought where the cause of action arose. Va. Code Ann. §§ 8-38,-39 …
¶9The fact that in this case the action arose in Tennessee, which State adjoins Virginia, makes no difference. The accident could have *945happened in Alaska, and there could have been a number of witnesses ready and willing to testify in behalf of John Doe that he was nowhere around when the accident occurred, but on the contrary the plaintiff, through her own negligence, “skidded off the highway and into a tree with such force that the car was demolished and the plaintiff severely injured.” Would it be reasonable to require John Doe, in defending this tort action, to bring these witnesses ifrom Alaska to Virginia to testify to this fact? This, in my view, would create a hardship which, under the law, is not contemplated.
¶10In all deference, I am of the opinion that the plea in abatement should have been sustained and the tort action dismissed.