120 N.E. 198 | NY | 1918
The action is brought to recover damages for injuries resulting in death. The plaintiffs are the administrators of the estate of Everett A. Loucks. Their intestate, while traveling on a highway in the state of *102 Massachusetts, was run down and killed through the negligence of the defendant's servants then engaged in its business. He left a wife and two children, residents of New York. A statute of Massachusetts (R.L. ch. 171, § 2, as amended by L. 1907, ch. 375) provides that "if a person or corporation by his or its negligence, or by the negligence of his or its agents and servants while engaged in his or its business, causes the death of a person who is in the exercise of due care, and not in his or its employment or service, he or it shall be liable in damages in the sum of not less than $500, nor more than $10,000, to be assessed with reference to the degree of his or its culpability, or that of his or its servants, to be recovered in an action of tort commenced within two years after the injury which caused the death by the executor or administrator of the deceased; one-half thereof to the use of the widow and one-half to the use of the children of the deceased, or if there are no children, the whole to the use of the widow, or if there is no widow, the whole to the use of the next of kin." The question is whether a right of action under that statute may be enforced in our courts.
(1) "The courts of no country execute the penal laws of another" (The Antelope, 10 Wheat. 66, 123). The defendant invokes that principle as applicable here. Penal in one sense, the statute indisputably is. The damages are not limited to compensation; they are proportioned to the offender's guilt. A minimum recovery of $500 is allowed in every case. But the question is not whether the statute is penal in some sense. The question is whether it is penal within the rules of private international law. A statute penal in that sense is one that awards a penalty to the state, or to a public officer in its behalf, or to a member of the public, suing in the interest of the whole community to redress a public wrong (Huntington v.Attrill,
We think the better reason is with those cases which hold that the statute is not penal in the international sense. On that branch of the controversy, indeed, there is no division of opinion among us. It is true that the offender is punished, but the purpose of the punishment is reparation to those aggrieved by his offense (Comm. v. B. A.R.R. Co.,
We cannot fail to see in the history of the Massachusetts statutes a developing expression of this policy and purpose. The statutes have their distant beginnings in the criminal law. To some extent the vestiges of criminal forms survive. But the old forms have been filled with a new content. The purpose which informs and vitalizes them is the protection of the survivors. They are moods and phases, the particular and varying expression, of a tendency in legislation as general as the common law. They are not to be viewed in isolation, apart from the stream of events. At first, the remedy was given only when the wrongdoer was a common carrier (St. 1840, ch. 80). That statute goes back to 1840, antedating Lord Campbell's Act in England (St. 9 10 Vict. ch. 93, 1846). The remedy was by indictment and fine, the fine being payable to the widow and next of kin. If there were no survivors of the prescribed class, there could be no indictment (Comm. v. B. A.R.R. Co., *105
Through all this legislation there runs a common purpose (Boott Mills v. B. M.R.R. Co., supra, 586; Brown v.Thayer,
(2) Another question remains. Even though the statute is not penal, it differs from our own. We must determine whether the difference is a sufficient reason for declining jurisdiction.
A tort committed in one state creates a right of action that may be sued upon in another unless public policy forbids. That is the generally accepted rule in the United States (Huntington v.Attrill,
McDonald v. Mallory is altogether irrelevant. In that case, death occurred upon the high seas. The ship hailed from this state, was registered in one of our ports, and was owned by one of our citizens. She was, therefore, constructively part of our territory. For that reason, our law governed, and the action was sustained. RAPALLO, J., in the course of his opinion, said that the laws of New York have no operation in foreign jurisdictions, and that where the wrong is suffered elsewhere, "no action therefor can be maintained here, at least without proof of the existence of a similar statute in the place where the wrong was committed." That statement was accurate as applied *108 to the case that was then at hand. There must be a similar statute, i.e., a statute giving a cause of action for death, in the place where death is caused. Locus regit actum. It is quite another thing to say that if there is a foreign statute, it must be duplicated here.
In Leonard v. Columbia Steam Navigation Co. (supra) the death occurred in Connecticut, where there was a statute similar to our own. The court held that the action would lie. It was unnecessary to determine whether there would have been another result if the statutes had been different. Judge RAPALLO'S statement of the rule in McDonald v. Mallory was quoted as if it sustained a requirement of correspondence. That was obviously a misapprehension of its meaning. There was a citation of some English cases (Madrazo v. Willes, 3 B. Ald. 353; Melan v.Duke de Fitz-James, 1 B. P. 138; Mostyn v. Fabrigas, 1 Cowp. 161). They have little bearing on the subject.
In Wooden v. Western N.Y. P.R.R. Co. (supra) the death occurred in Pennsylvania. The case was heard upon demurrer to the complaint. Counsel on each side assumed that the statutes must be substantially similar. The argument was confined to the question whether they were similar. Not unnaturally the court proceeded upon the same assumption. McDonald v. Mallory and Leonard
v. Columbia Steam Navigation Co. (supra) were the only cases cited. The court found substantial similarity between the statutes except in respect of the measure of recovery. The Pennsylvania statute did not limit the damages. Our statute then prescribed a maximum of $5,000. The difference was thought to affect the remedy rather than the right. We said that the right created by the foreign statute would be enforced, but subject to the restriction in amount which expressed the local policy. There was some suggestion that if the defendant were a non-resident, the restriction would not *109
apply. 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.,
In Kiefer v. Grand Trunk Ry. Co. (supra) the death occurred in Canada. Canada has a statute similar to our own. The chief variance is in the award of interest. Limiting the ruling in the Wooden case, we held that interest had relation to the substance of the right, and must be governed by the foreign statute.
Those are the only decisions of this court which tend to support the rule of similarity. The rule itself has no more stable foundation than a misapprehended dictum in McDonald v.Mallory. This was pointed out by BISCHOFF, J., in Boyle v.Southern R. Co. (
A foreign statute is not law in this state, but it gives rise to an obligation, which, if transitory, "follows the person and may be enforced wherever the person may be found" (Slater v.Mex. Nat. R.R. Co., supra; Lauria v. Du Pont De Nemours Co.,supra; Cuba R.R. Co. v. Crosby,
This test applied, there is nothing in the Massachusetts statute that outrages the public policy of New York. We have a statute which gives a civil remedy where death is caused in our own state. We have thought it so important that we have now imbedded it in the Constitution (Const. art. 1, § 18). The fundamental policy is that there shall be some atonement for the wrong. Through the defendant's negligence, a resident of New York has been killed in Massachusetts. He has left a widow and children who are also residents. The *112
law of Massachusetts gives them a recompense for his death. It cannot be that public policy forbids our courts to help in collecting what belongs to them. We cannot give them the same judgment that our law would give if the wrong had been done here. Very likely we cannot give them as much. But that is no reason for refusing to give them what we can. We shall not make things better by sending them to another state, where the defendant may not be found, and where suit may be impossible. Nor is there anything to shock our sense of justice in the possibility of a punitive recovery. The penalty is not extravagant. It conveys no hint of arbitrary confiscation (Standard Oil Co. of Ind. v.Missouri,
We hold, then, that public policy does not prohibit the assumption of jurisdiction by our courts, and that this being so, mere differences of remedy do not count. For many years the courts have been feeling their way in the enforcement of these statutes. A civil remedy for another's death was something strange and new, and *113
it did not find at once the fitting niche, the proper category, in the legal scheme. We need not be surprised, therefore, if some of the things said, as distinguished from those decided, must be rejected to-day. But the truth, of course, is that there is nothing sui generis about these death statutes in their relation to the general body of private international law. We must apply the same rules that are applicable to other torts; and the tendency of those rules to-day is toward a larger comity, if we must cling to the traditional term (Walsh v. B. M.R.R.,
The judgment of the Appellate Division should be reversed, and the order of the Special Term affirmed, with costs in the Appellate Division and in this court.
HISCOCK, Ch. J., CUDDEBACK, POUND, CRANE and ANDREWS, JJ., concur; COLLIN, J., dissents from decision of second question in opinion of CARDOZO, J.; otherwise concurs.
Judgment reversed, etc. *114