139 A. 601 | Conn. | 1928
The plaintiff, a resident of Connecticut, seeks to recover damages for personal injuries alleged in his complaint to have been caused him through the negligent conduct of the defendant administrator's intestate in the State of New York. The defendant demurred upon the grounds that the action did not survive at common law, and the complaint does not allege that in the State of New York the action survived against the estate of the defendant's intestate.
The action is a common-law action for a tort resulting in personal injuries committed in the State of New York; it is a transitory, not a local action.
"`A tort committed in one State creates a right of action that may be sued upon in another unless public policy forbids.'" Commonwealth Fuel Co. v. McNeil,
In New York, as it formerly was in Connecticut (Merwin v. Merwin,
The purpose of our statute was to prevent the injustice which the enforcement of this rule of abatement entailed. Had the cause of action arisen in our jurisdiction it would, by virtue of the statute, have survived the death of the defendant's intestate, the alleged tort-feasor. Had the plaintiff begun his action here before the death of the intestate, under this statute, after the death of the intestate, it would have been revived. When our court had assumed jurisdiction of a cause of action originating in New York, it was beyond the power of the State of its origin to destroy our jurisdiction of the action. The locus delicti determined the existence of the cause of action. Thelocus fori determined the remedy. The place of the injury could not, by legislative or judicial action taken subsequent to our acquiring jurisdiction, take away our jurisdiction over the cause of action which was good when we assumed it, for that would give the place of the injury an extra-territorial right to control litigation here. Neither would the death of the defendant's intestate pending the action have deprived our court of the right, upon proper application, to have revived the action, since our statute gives our court that right.
The decisions upon this point are in very substantial accord, resting upon the reason upon which the *177
pending action for personal injuries rests. Baltimore Ohio R. Co. v. Joy,
The immediate question which we are called upon to decide is: Can a common-law action to recover damages for personal injuries suffered in New York be maintained in Connecticut against the personal representative of one whose negligence caused the injury, but who died before suit was brought? It must be conceded that the action, by the express terms of the Decedents Estate Law of New York, substantially embodied in the Code of Civil Procedure, §§ 1902-1904, did not survive the death of the defendant's intestate, the alleged tort-feasor. As construed by the Court of Appeals of New York, the only right of action which survives under this statute is one for damages resulting from the death of the person injured to the estate of the beneficiary of the deceased for the wrong done to the property rights or interests of the beneficiary which the representative, as the trustee for the beneficiary, converts into money for his benefit. Meekin
v. Brooklyn Heights R. Co.,
The argument of plaintiff's counsel centers upon their attempt to demonstrate that the question relates to the remedy and not to a substantive right, consequently the law of the forum governs, and whether the action survives is to be determined by that law. If the maintenance of this action depended merely upon the question of remedy, the result claimed must follow and the action survive, since the statute of the forum, Connecticut, so provides. The fallacy of this position is in its assumption that, under the common *178 law of New York, the right of action for personal injuries was a substantive right existing wherever a like common-law right existed, which, though abated in the place of the wrong, would still exist in a foreign jurisdiction which had a survival statute and had obtained jurisdiction of the parties to the action after the abatement of the action in the State of origin. New York created the right of action for this wrong. The power which gave the right could take it away. When, by its law, the death of the injuring person abated the right of action for this wrong, the right no longer existed in that jurisdiction, nor thereafter in any other jurisdiction.
It could have changed its rule of law that death abated rights of action for personal injuries by enacting a survival statute. It has not done this. It could not create a right of action for a wrong done in a foreign jurisdiction. A survival statute is supreme within the bounds of its own State; beyond these its power of operation is not only ineffective but nonexistent. A statute of revival operates differently. It does not revive a right of action which has ceased in its place of origin; it revives an action for a right which arose in a foreign jurisdiction, but while the right still existed in that jurisdiction the action to secure the right was begun in another forum. The right which the action thus sought to secure became a right in the jurisdiction of the forum as soon as its courts had assumed jurisdiction of it. No State could subsequently, by legislation or rule of law, destroy, control, or affect in slightest degree that right. It then existed by force of the law of the forum.
The authorities, while not numerous upon the precise point raised in this case, are almost uniformly antagonistic to the right of the plaintiff to maintain his action. Davis v. New York N.E. R. Co., *179
Needham v. Grand Trunk Ry. Co.,
Similar rulings were made in Hyde v. Wabash, St.L. P. Ry. Co.,
The only case holding a contrary doctrine, to which we have been directed by counsel, is Whitten v. Bennett, 77 F. 271. Austin's Admr. v. Pittsburg, C., C. St. L. R. Co.,
The right of action for plaintiff's injuries arose in New York and was extinguished at the death of the *181 defendant's intestate, since there was no survival statute in existence there. Our own survival statute cannot revive the right of action which arose in New York and had been extinguished, nor can it create a cause of action based upon a wrong occurring in the State of New York. It has no extra-territorial force.
There is no error.
In this opinion the other judges concurred.