Dym v. Gordon

16 N.Y.2d 120 | NY | 1965

Lead Opinion

Burke, J.

The plaintiff, a guest in the defendant driver’s automobile, seeks to recover damages against her host for injuries which concededly were the result of ordinary negligence in its operation. Both the plaintiff and defendant are New York domiciliaries and if the accident had occurred here the defendant would doubtless be liable. However, the accident and negligent conduct took place in the State of Colorado, a jurisdiction which has enacted a “guest statute”¹ barring a guest’s recovery against the host unless “willful and wanton disregard” of safety can be shown. The trial court, professedly invoking the conflict of laws rule recently defined in the case of Babcock v. Jackson (12 N Y 2d 473 [1963]), decided as a matter of law that New York law was applicable. The Appellate Division unanimously reversed the judgment and held that Colorado law must apply. I believe that the determination of the Appellate Division is in accord with the rationale in Babcock. It seems to me that the trial court interprets the rule in Babcock merely as the English conflict of laws rule² concerning foreign torts or alternatively as simply a holding that “guest statutes” contravene the public policy of New York. Such doctrines have no place in this case.³

This case was tried on an agreed set of facts. Both plaintiff and defendant, domiciled in New York, were temporarily residing in Colorado. Both parties were Summer students at the University of Colorado and had arrived at separate times in Boulder, Colorado, traveling by separate means of transportation. At the time of leaving New York there had been no arrangement between defendant and plaintiff to meet in Colorado and no plan or intention on the part of either that plaintiff would ride in the defendant’s automobile at any time. On August 11, 1959, without any prior arrangement, plaintiff entered defendant’s automobile with his consent for the purpose of being driven to a place of instruction in Longmont, Colorado. Both parties intended that plaintiff be driven only to that destination and no plans were made for any other trip. The plaintiff’s injuries were received as a result of a collision with another car that occurred during the short ride to Longmont.

In deciding what law to apply I of course recognize that we no longer mechanically turn to the common-law rule of lex loci delictus in tort cases. The place of impact rule was a reasonable one at a time when travelers were few and when most persons had more contacts with the jurisdiction in which they found themselves than mere physical presence. Our courts now have adopted a rule of choice of law in a conflict situation which looks to reason and justice in its selection of which law should apply and which fits the needs of today’s world where long and frequent travel is no longer reserved to a few. (See Kilberg v. Northeast Airlines, 9 N Y 2d 34; Mertz v. Mertz, 271 N. Y. 466; Babcock v. Jackson, supra.)

The plaintiff claims that the conflict of laws doctrine enunciated in Babcock (supra) mandates application of the New York negligence rule. Plaintiff refers to insurance written and delivered in New York, registration of the automobile here, the domicile of both parties in New York and also to the policy of the New York law. By the use of those references plaintiff attempts to use a quantitative rather than a qualitative test and tends to distort Babcock into a rule of domicile or one directed toward public policy. I think the Babcock rule compels a contrary result.

Following our approach in Babcock, it is necessary first to isolate the issue, next to identify the policies embraced in the laws in conflict, and finally to examine the contacts of the respective jurisdictions to ascertain which has a superior connection with the occurrence and thus would have a superior interest in having its policy or law applied. The issue" here is simply whether in an automobile host-guest relationship a negligent driver should be liable to his injured passenger.- The New York law finds nothing in the host-guest relationship which warrants a digression from the usual negligence rule of ordinary care. In Colorado, however, this relationship is treated specially and, while ordinary negligence is usually enough for recovery in that state, injuries arising out of this relationship are compensable only if they result from “ willful and wanton ” conduct. Contrary to the narrow view advanced by plaintiff, the policy underlying Colorado’s law is threefold: the protection of Colorado drivers and their insurance carriers against fraudulent claims, the prevention of suits by “ ungrateful guests ”, and the priority of injured parties in other cars in the assets of the negligent defendant. Examining Colorado’s interest in light of its public policy we find that over and above the usual interest which Colorado may bring to bear on all conduct occurring within its boundaries, Colorado has an interest in seeing that the negligent defendant’s assets are not dissipated in order that the persons in the car of the blameless driver will not have their right to recovery diminished by the present suit.

Finally we come to the question of which state has the more significant contacts with the case such that its interest should be upheld. In this regard, the factual distinctions between this case and Babcock do have considerable influence. Babcock did not involve a collision between two cars; thus only New Yorkers were involved and it was unnecessary for us to consider the interests of Ontario in the rights of those in a car of a non-negligent driver. In Babcock we pointed out that the host-guest relationship was seated in New York and that the place of the accident was “ entirely fortuitous”. In this case the parties were dwelling in Colorado when the relationship was formed and the accident arose out of Colorado based activity; therefore, the fact that the accident occurred in Colorado could in no sense be termed fortuitous. Thus it is that in this case, where Colorado has such significant contacts with the relationship itself and the basis of its formation, the application of its law and underlying policy are clearly warranted.

Of compelling importance in this case is the fact that here the parties had come to rest in the State of Colorado and had thus chosen to live their daily lives under the protective arm of Colorado law. Having accepted the benefits of that law for such a prolonged period, it is spurious to maintain that Colorado has no interest in a relationship which was formed there. In Babcock the New Yorkers at all times were in transitu and we were impressed with the fundamental unfairness of subjecting them to a law which they in no sense had adopted.

To say that this relationship was formed in Colorado implies that the parties had acquired so sufficient a nexus with that jurisdiction that relationships formed there were in the real sense Colorado relationships. In other words, it is neither the physical situs where the relationship was created nor the time of its creation which is controlling but rather these factors in conjunction with the general intent of the parties as inferred from their actions. • There is no doubt that had the accident in Babcock occurred while the parties were on their way to a restaurant after having stopped for the night at a motel that the same result would obtain. By the same token, it would make no difference here if the parties had planned, while still in New York, to go to Colorado for a year’s study and, while there, engage in skiing at Aspen; the fact that they had planned the trip here would not justify the application of New York law if an accident occurred involving people in another car while traveling from Boulder to Aspen some months later.

Other cases in our court have given due consideration to the special relationships there involved when deciding conflict issues. In the case of Mertz v. Mertz (supra) we recognized that the matter of whether or not a wife may recover against her husband in tort is treated differently in some states because of special incidents in that relationship as recognized by the jurisdiction concerned. Since the relationship itself is the reason for the special treatment, we concluded that the jurisdiction where the relationship was seated had the primary interest in having its laws applied.

In workmen’s compensation cases the rule that the law of the place of injury was solely controlling was abandoned and the interest of the state in which the employment relationship was created was given special consideration (Alaska Packers Assn. v. Comm., 294 U. S. 532; Matter of Nashko v. Standard Water Proofing Co., 4 N Y 2d 199, 201). In Kilberg (supra) the court emphasized the significant contacts which New York State had with the case. Not only was the plaintiff’s intestate a resident of New York but the contract for the trip had been made in this State by the purchase of a ticket here and this contract had been partly performed in New York. The action was thereby one on a New York created relationship.

These decisions demonstrate that considerations of where and how a relationship was formed are significant in this class of cases. This analysis is much to be preferred over an approach which merely looks to the fortuitous place of the happening of the accident, or simply applies the law of the domicile or one which blithely applies the public policy, of the forum under the denomination of “ governmental interests ”.

The alleged contacts referred to by plaintiff may be classified under the heading of domicile. Certainly it is merely a long-handed method of reciting that the parties Avere domiciled in New York to state that the car was registered here and that the insurance was written here. These and many other factors may usually be presumed from the fact of domicile; they have no independent significance as regards the host-guest relationship apart from their inclusion as natural incidents of domicile.

Judicial hostility to “guest” statutes and a preoccupation with New York social welfare problems and the relative liability of insurers should not be treated as “ contacts ” which are found then to outweigh the factual contacts. These views also depend on the mores of the particular forum and its allied public policy. Such a tack is altogether too provincial.

Here, necessarily, the only valid competing consideration bearing on the host-guest relationship is that of domicile. However appealing it might seem to give effect to our own public policy on this issue, merely because the negligent driver of the car in the collision, and his guest, are domiciled here, to do so would be to totally neglect the interests of the jurisdiction where the accident occurred, where the relationship arose and where the parties were dwelling, and to give an overriding significance to a single factor reminiscent of the days when British citizens travelled to the four corners of the world secure in the belief that their conduct would be governed solely by the law of England. “ The suggestion sounds like an echo of the theory of the statute personal, a body of national law which the citizen carries about with him (Beale, Conflict of Laws, §§ 54, 55; Am. Banana Co. v. United Fruit Co., 213 U. S. 347, 356). That is a theory which has yielded generally in this country to the principles of the territorial system”. (Loucks v. Standard Oil Co., 224 N. Y. 99, 109.) To give domicile or an alleged public policy such a preferred status is to substitute a conflicts rule every bit as inflexible and arbitrary as its lex loci predecessor. Such was not our intention in Babcock. It is suggested that New York has a dominant governmental interest in seeing that the plaintiff receives compensation because it is this State that she will look to for welfare payments should she become a public charge as a result of her injuries. Such an argument is hardly a legal one. Were we to give our attention to such considerations we might just as well speculate about the possibility that the New York defendant could become a public charge if the plaintiff were to be given recovery. There is no guarantee that the recovery will not far exceed the insurance coverage in this or in any other case. A reflection on the import of this argument gives one the feeling that a preference for whatever law will compensate the New York tort plaintiff lurks in the background. The suggestion that our courts should apply this State’s policy of compensation for innocent tort victims to all cases of returning domieiliaries is tantamount to saying that different rules or interests of other jurisdictions should be denied application in a New York forum on the ground of their not suiting our public policy. The principles justifying our refusal to apply foreign law on the ground of public policy are well defined, and a mere difference between the foreign rule and our own will not warrant such refusal.

Public policy, per se, plays no part in a choice of law problem. (See Intercontinental Hotels Corp. v. Golden, 15 N Y 2d 9; Haag v. Barnes, 9 N Y 2d 554, 560.) Moreover, as stated in Loucks v. Standard Oil Co. (supra), “ The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal” (224 N. Y., p. 111).

The present decision represents no departure from the rule announced in Babcock; merely an example of its application. Neither is it my intention to suggest that in all cases the rule depends on the existence of some relationship for its vitality, nor do I wish to imply that in all relationship cases the seat of the relationship should be paramount. Long ago it became apparent that due to improved methods of travel and communication, together with the increased mobility of the population in general, the old rule of lex loci no longer was a just rule in many cases. The rule announced in Babcock allows the courts the flexibility necessary to deal with those cases.

In our case there is no doubt that, because the parties were dwelling in Colorado and because the relationship was based there, the place of the occurrence of the accident with the other car was not “ entirely fortuitous.” Therefore, Colorado, concerned with the fate of all motorists on its highways, has the most significant contacts with the matter in controversy and a dominant interest in it. Here as in Davenport v. Webb (11 N Y 2d 392) the sole connection of New York State is one of domicile. It is evident that in this case the law of the state in which the parties were living and in which the relationship was created must be held to be controlling. This conclusion does not subject “ the traveling citizens of this State to the varying laws of other States through and over which they move ” (Kilberg v. Northeast Airlines, supra, p. 39) and is fully consonant with the Babcock rule.

Accordingly, the order of the Appellate Division should be affirmed, without costs,

1 . The Colorado statute (Col. Rev. Stats., § 13-9-1) provides, in pertinent part, that: “ No person transported by the owner or operator of a motor vehicle as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss in ease of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his intoxication, or by negligence consisting of a willful and wanton disregard of the rights of others.”

2 . McLean v. Pettigrew (1945) 2 D. L. R. 65; Loucks v. Standard Oil Co., 224 N. Y. 99, 109.

3 . See Babcock v. Jackson, 17 A D 2d 699, and Babcock v. Jackson, 12 N Y 2d, p. 484, ns. 13,14. Whereas the English conflicts rule would apply the law of the forum given either the facts in Babcock or the different facts in this case, the application of the Babcock rule should produce a contrary result under the dissimilar facts here.

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Dissenting Opinion

Fuld, J. (dissenting).

In the light of this court’s decision in Babcock v. Jackson (12 N Y 2d 473), I cannot understand how an affirmance may here be justified. The view expressed by the majority is inconsistent not only with the rationale underlying Babcock but with the rule there explicitly stated, that the law to be applied to resolve a particular issue in a tort case with multi-jurisdictional contacts is ‘ ‘ the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern” with the matter in issue and “ the strongest interest” in its resolution (12 N Y 2d, at pp. 481, 484).¹

The rule thus announced is not, and does not profess to be, a talisman of legal certainty, nor does it of itself provide a formulary means for resolving conflicts problems. What it does provide is a method, a conceptual framework, for the disposition of tort cases having contacts with more than one jurisdiction. Although the majority in this case reaffirms Babcock’s abandonment of the prior inflexible rule of lex loci delicti, its decision, névertheless, in essence, reflects the adoption of an equally mechanical and arbitrary rule that, in litigation involving a special relationship, controlling effect must be given to the law of the jurisdiction in which the relationship originated, notwithstanding that that jurisdiction may not have the slightest concern with the specific issue raised or that some other state’s relationship or contact with the occurrence or the parties may be such as to. give it the predominant interest in the resolution of that issue.²

There is, indeed, no material distinction between the factual situation here presented and that in the Babcock case, and the very same considerations which there impelled us to select as controlling the law of New York, rather than that of the place of injury, are equally decisive here. In each case, suit was brought in this State by one New Yorker against another for injuries sustained in another jurisdiction while riding as a guest in a vehicle registered, regularly based and insured in New York. And, in both cases, there was in effect in the foreign jurisdiction a statute which, unlike the law of New York, barred claims of this kind by the guest against the host based on ordinary negligence.³ In Babcock, the plaintiff was injured when the defendant lost control of his automobile and it went off the highway and into an adjacent stone wall; in the case before us, the defendant, failing to observe a stop sign, collided with another car operated by a resident of Kansas and apparently registered in that state. The only other difference between the cases is that in Babcock the guest-host relationship originated in New York and the parties’ trip began and was to end in this State, whereas in the present case that relationship arose in Colorado where the parties were temporarily residing—though they both returned to their homes in New York shortly after the accident.

It was our endeavor in Babcock to identify, in the first instance, the policies embodied in the particular laws in conflict, then to ascertain the interests of the jurisdictions involved in the application of their respective policies in view of their contacts with the case and, by such process, to determine which jurisdiction had “ the superior claim for application of its law ” (12 N Y 2d, at p. 483; see, also, Cavers, Comments on Babcock v. Jackson, 63 Col. L. Rev. 1219,1221). Ontario’s contact there consisted solely of the occurrence of the accident within its territory, and we concluded that that contact was not a 1 ‘ significant ” one, as respects the issue of liability of host to guest, since the policy reflected in its guest statute — the protection of Ontario defendants and their insurance carriers against fraudulent claims — had no relevant application to an accident involving New York parties and a New York-insured vehicle in which no Ontario defendant or insurer had any interest. In other words, the fact that the accident happened in Ontario was not a contact which gave that jurisdiction a legally cognizable interest in having its policy applied to the case. New York’s contacts, on the other hand, gave it a vital interest in the application of its strong and long-standing policy ‘‘ of requiring a tortfeasor to compensate his guest for injuries caused by his negligence ” (12 N Y 2d, at p. 482).⁴

Nothing turns on the circumstance that in this case the guest-host relationship was formed in the foreign jurisdiction. It seems indisputably clear that a jurisdiction may be said to be ‘1 concerned ’ ’ with a specific issue, if that term is to have any meaningful content, only when its governmental interests and policies enter into the making of a particular decision. Accordingly, the decisive consideration, in the present case, is that Colorado’s guest statute, paralleling Ontario’s, has as its prime objective the protection of Colorado driver-defendants and their insurance carriers against fraudulent claims and lawsuits. (See, e.g., Vogts v. Guerrette, 142 Col. 527, 534; Bashor v. Bashor, 103 Col. 232, 237-238; see, also, Shea v. Olson, 185 Wash. 143,154-155, cited in the Vogts case, 142 Col., at p. 534.) Manifestly, that policy of Colorado can in no way be served by applying its statute to an action, such as the present, which is brought in New York and involves not residents of Colorado or their insurance carriers but only New Yorkers and a New York based and insured vehicle. The mere fact that the guest-host relationship between the New York parties originated in Colorado has, in truth, as little relevance to the policy underlying that state’s guest statute and, by that token, as little bearing on that statute’s applicability as did the fact, in Babcock, of the occurrence of the accident in Ontario in relation to the similar policy embodied in its guest statute. Under the circumstances of the present case, then, Colorado, to paraphrase what we wrote in Babcock, “has no conceivable interest in denying a remedy to a New York guest against his New York host for injuries suffered in [Colorado] by reason of conduct which was tortious under [Colorado] law” (12 N Y 2d, at p. 482).

Nor is the majority’s position advanced by its further suggestion (opinion, p. 124) that the Colorado statute also reflects (1) an antipathy on the part of Colorado to suits by “ungrateful” guests (see Dobbs v. Sugioka, 117 Col. 218, 220) and (2) a policy to assure “ the priority of injured parties in other cars in the assets of the negligent defendant.” Indeed, as regards the latter asserted policy, there does not appear to be any Colorado pronouncement even to intimate that the Colorado Legislature was motivated by any such objective. In any event, though, Colorado would be legitimately concerned with the application of these alleged policies only in relation to matters within its legislative competence, such as the burdens of the Colorado courts, the regulation of the affairs and relationships of Colorado citizens or the protection of Colorado claimants or insurers. (Cf. Fabricius v. Horgen, 132 N. W. 2d 410, 415 [Iowa]; Thompson v. Thompson, 105 N. H. 86; Griffith v. United Air Lines, 416 Pa. 1, 24-25; Comment, 77 Harv. L. Rev. 355, 357-358.) Whether such considerations might be of significance in particular circumstances not here present, they certainly have no relevance in the contest of this suit between New York domieiliaries in a New York court, in which no burden is being imposed on the Colorado courts and no citizen of Colorado appears to be in any way interested. The majority’s emphasis on the involvement of another vehicle in the accident (opinion, pp. 124-125) is thus misplaced since the other automobile was driven by a resident from Kansas and was apparently licensed in that state.

New York, on the other hand, just as in Babcock, as the permanent residence of the plaintiff and the defendant and the place to which they returned to live shortly after the accident, has a predominant interest in vindicating its own policy of requiring negligent driving hosts to compensate their injured guests. It is apparent that the consequences resulting from an uncompensated injury generally affect the community in which the injured party resides, in this case, New York. If a plaintiff who returns to live here after sustaining injuries in another state requires additional medical treatment, as is usually the case, or is unable to meet his normal economic commitments and becomes a public charge, it is the people of New York—whose services will go uncompensated and whose tax dollars will be charged in the form of welfare payments — who will feel the repercussions of such • eventualities and not the distant and unconcerned residents of the state of injury, where a guest-host relationship between the New York parties may have been formed. (See, e.g., Cheatham, Comments on Babcock v. Jackson, 63 Col. L. Rev. 1229, 1230; cf. Griffith v. United Air Lines, 416 Pa. 1, 24-25, supra.) There is thus no question but that Colorado’s “contacts”, though quantitatively greater than those of Ontario in Babcock, are still not “ significant ” as respects the specific issue presented and that the “contacts” of New York in relation to that issue are decidedly superior.

No one of the cases cited in the court’s opinion — among them, Mertz v. Mertz (271 N. Y. 466), involving husband and wife; Matter of Nashko v. Standard Water Proofing Co. (4 N Y 2d 199), involving employer and employee; and Kilberg v. Northeast Airlines (9 N Y 2d 34), involving carrier and passenger — supports its view that conclusive effect must be given, in a case involving a special relationship, to the law of the place where the relationship arose. As examination of each of those cases readily discloses, this court applied the law of one jurisdiction rather than that of the other not per se because the relationship between the parties originated in that jurisdiction but because analysis of all the material facts demonstrated that the latter had the more compelling interest in the application of its law to the matter in issue. (See Babcock v. Jackson, 12 N Y 2d 473, 479-481, supra.)

Nor is my conclusion as to the superiority of New York’s claim for the application of its law in this case in any way grounded—'as suggested in the majority opinion (p. 124) — on a “ quantitative ” assessment of the contacts of the respective jurisdictions, or on the decisive effect of any single such factor as domicile or the public policy of this State. Rather, the essential inquiry is, and has been, to determine whether it is Colorado or New York which has “ the greatest concern with the specific issue raised in the litigation.” (Babcock v. Jackson, 12 N Y 2d 473, 481, supra.) It is clear that in this case it is New York which has the predominant concern and, consequently, it is the law of this State, not Colorado, which should be applied.

In conclusion, then, I would say, as did the court in Babcock (12 N Y 2d, at p. 482), that “ New York’s policy of requiring a tort-feasor to compensate his guest for injuries caused by his negligence cannot be doubted * • * * and our courts have neither reason nor warrant for departing from that policy simply because the accident, solely affecting New York residents and arising out of the operation of a New York based automobile, happened beyond its borders ’ ’.

The order of the Appellate Division should be reversed and the judgment of the. Supreme Court reinstated.

1 . See, also, Cavers et al., Comments on Babcock v. Jackson, 63 Col. L. Rev. 1219 et seq.; Comment, 62 Mich. L. Rev. 1358; New Trends in the Conflict of Laws, 28 Law & Contemp. Probs. 673 et seq.

2 . Although the court at one point in its opinion (p. 125) purports to disclaim sole reliance on “ the physical situs where the relationship was created ” — declaring, rather ambiguously, that such factor must be taken “in conjunction with the general intent of the parties” — this statement cannot conceal that it is the place where the relationship originated which the majority treats as decisive.

3 . The Ontario statute (in Babcock), which completely barred the claims of a guest-passenger, differs from that of Colorado, which permits recovery on a showing of " willful and wanton ” conduct, but this distinction, as indicated in the Babcock case (12 N Y 2d, at p. 484, n. 14), is of no consequence for present purposes.

4 . To the plaint that the concepts, “ significant contacts ”, “ center of gravity ” and “interests of the respective states ”, are mere “ catchwords ” (opinion of Desmond, Ch. J., p. 135), I would but recall Professor Cheatham’s telling observation (in discussing the use of such expressions) that they are “at least as adequate to define a principle of law as the terms ‘due process of law, ‘ property,’ ‘ reasonableness,’ and ‘ unjust enrichment,’ which the courts constantly employ” (Cheatham, Comments on Babcock v. Jackson, 63 Col. L. Rev. 1229, 1230-1231) — and, I would add, as adequate as “ traditional notions of fair play ” and “ substantial justice ” used by the Supreme Court in International Shoe Co. v. Washington (326 U. S. 310, 316, 320) and McGee v. International Life Ins. Co. (355 U. S. 220, 222).

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Dissenting Opinion

Chief Judge Desmond (dissenting).

Concurring with Judge Fuld, I would reverse because of the rule stated and applied in Babcock v. Jackson (12 N Y 2d 473, 482-484), that is, that “ New York’s policy of requiring a tort-feasor to compensate his guest for injuries caused by his negligence ” is not to be departed from “ simply because the accident, solely affecting New York residents and arising out of the operation of a New York based automobile, happened beyond its borders. ’ ’ Similarly in Kilberg v. Northeast Airlines (9 N Y 2d 34, 89, 40) we gave effect to a “ strong, clear and old ” public policy of New York in refusing, even though the particular wrongful death occurred in Massachusetts, to enforce as against the estate of a New York resident the Massachusetts statute limiting recovery in death actions. What we did in those decisions was to announce for New York a modern public policy which abandoned the old sweeping rule that the law to be applied in every tort case was the law of the place of the wrong. Babcock and Kilberg (supra) together should be the law of this present case.

I do not think that any fear of being accused of making or using “mechanical” rules should deter us from developing such new decisional formulae as the need for them appears in our society. “ Mechanical ” is a mere epithet in this connection. It is our duty as the highest court of our State to formulate and announce the law, otherwise how can the lower courts decide cases and how can lawyers advise their clients?.

No guides satisfactory to me are found in the concepts currently favored by teachers and writers on conflict of laws, such as “significant contacts ”, “center of gravity”, and “ interests of the respective states ”. I voted with the majority in Babcock v. Jackson (12 N Y 2d 473, supra) on my concept of New York State’s public policy but I agree with so much of the dissenting opinion of Judge Van Voorhis therein as says that “contacts”, “ interests ”, “center of gravity”, etc., are catchwords representing at best not methods or bases of decision but considerations to be employed in setting up the new rules of law required by changing times. Counting up “ contacts ” or locating the “center of gravity” or weighing the respective ‘ ‘ interests ’ ’ of two states can never be a satisfactory way of deciding actual lawsuits. As this case demonstrates, Judges will disagree as to where these balances and centers and interests lie. For instance, how can you isolate and compare the “interests” of Colorado and New York in this lawsuit? Colorado has no “ interest ” at all in the determination of the question whether plaintiff, a New York resident, should be denied recovery in a New York court against another New York resident. No more did Massachusetts have any “ interest ” in limiting the Kilberg estate’s recovery, or Ontario an interest in having plaintiff Babcock turned out of a New York court. The jurisdiction where an accident occurs has, of course, a special “ interest ” and responsibility in enforcing its own “ rules of the road” (see Babcock opinion, supra, p. 483). The state where an injured plaintiff lives may have an “ interest ” in seeing to it that adequate compensation is provided, lest the injured person become a public charge. But no state can have any discoverable “ interest ” in the application of its own special public policies as to liability and compensation in tort litigations in another state between two persons, both resident of that other state.

New York’s public policy in cases like this as to protecting its own residents from foreign state deprivations of reasonable protection and indemnity was settled for me by Kilberg v. Northeast Airlines (9 N Y 2d 34, supra) and Babcock v. Jackson (12 N Y 2d 473, supra), and that public policy calls for a reversal.

Judges Dye, Van Vookhis and Scileppi concur with Judge Burke ; Judge Fuld dissents and votes to reverse in an opinion in which Chief Judge Desmond concurs in a separate opinion and in each of which Judge Bergan concurs.

Order affirmed.