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§1.1 First Restatement of Conflict of Laws
  • 1 §1.1.1 Tort—place of injury

    • 1.1 Alabama Great Southern R. R. Co. v. Carroll

      1

      11 So. 803
      97 Ala. 126 - 1892

      2
      Alabama Great Southern Rail Road Co.
      v.
      Carroll.
      3

      [126] Action by Employe for Injuries Sustained in Another State.

      4

      1. Negligence of fellow-Servant not cause of action against master at common-law.–Underthe common-law, both in Alabama and Mississippi, the master is not liable for an injury inflicted through the negligence of a fellow-servant.

      5

      2. Section 2590 of the Code has no extra territorial operation.—There can be no recovery in Alabama for injuries to the person sustained in another State, unless actionable by the law of the State where received, and this rule is not varied because the negligence which produced the casualty transpired in Alabama, where the common-law liability of the master is modified, nor by the facts that both master and employee reside in this State and services were required of the employee in both States.

      6

      3. Section 2590 imposes no contractual obligations.– The liability of the employer under Section 2590 of the Code, does not spring from the contract of employment, the only office of which is to establish the relation of master and servant, and it is alone upon the incidents of that relation that the statute operates. Hence, a servant injured in another State by the negligence of a fellow-servant, under such circumstances as would create no right of action against the master in that State, cannot recover against the latter in Alabama, although the contract was entered into and the services partly performed here

      7

      Appeal from City Court of Birmingham. Tried before Hon. H. A. SHARPE.

      8

      J. W. FEWELL, and A. G. SMITH, for appellant.

      9

      That the action is not for breach of contract, nor for breach of duty growing out of contract.-R. R. Go. v. Doyle, 60 Miss. 977; A .T. & R. R. v. :Moore, 11 Am. & Eng. R. R. cases 243; LeForest v. Tolman, 19 Am. Rep. 400; McMaster v. R. R. Co., 65 Miss. 264; Davis v. N. Y. R. R. 143 Mass. 301; 33 Kan. 83; 98 N. Y. 377; 61 Iowa 441; 61 Tex. 432; 72 Ind. 220; 10 Ohio St. 121; E. T. V. & G. Rwy. v. Lewis, 14 S. W. Rep. 603; 23 N. Y. 465; 5 Am. & Eng. Encyc. 127; 3 lb. 522; 10 S. Rep. 661; 2 Thomp. on Neg. p. 1282.

      10

      BROOKS & BROOKS, for appellee, as to jurisdiction, cited Denw1ck v. R. R. Go. 103 U. S. 18; Knight v. R. R. Co. 108 Pa. St. 38; Am. Rep. 492; A. G. S. v. Thomas, 89 Ala. 293.

      11

      That the law is part of the contract, Hanrick v. Andrews, 9 Port. 9; McDougald v. Rutherford, 30 Ala. 253; Walker v Forbes, 31 Ala. 9; Brouqhton v. Bradley, 36 Ala. 689; Cubbedge v. Napier, 62 Ala. 518; 100 U . S . 213; 116 lb. 647; 3 Am. & Eng. Encyc. 545.

      12
      McCLELLAN, J.
      13

      The plaintiff W. D. Carroll is, and was [127] at the time of being injured in that service, a citizen of Alabama. The defendant is an Alabama corporation operating a railroad extending from Chattanooga in the State of Tennessee through Alabama to Meridian in the State Mississippi. At the time of the casualty complained of, plaintiff was in the service of the defendant in the capacity of brakeman on freight trains running from Birmingham, Alabama, to Meridian, Mississippi, under a contract which was made in the state of Alabama. The injury was caused by the breaking of a link between two cars in a freight train which was proceeding from Birmingham to Meridian. The point at which the link broke and the injury was suffered was in the State of Mississippi. The evidence tended to show that the link which broke was a defective link and that it was in a defective condition when the train left Birmingham. It was shown that this link, had come to the defendant's road at Chattanooga, Tennessee, with a car which belonged to and came to that point over a road which was foreign to the A.G.S. road. That at Chattanooga, this foreign car was coupled into a train of the defendant by means of this link, the destination of the car next in rear of it being Birmingham, and the destination of the second car in the rear of it, which belonged to defendant, being Meridian, to which point the foreign car was also bound. At Birmingham the car between this foreign car and the A.G.S. car which were billed to Meridian was cut out, and these two were coupled together by means of the link which had come to the defendant with the foreign car. The evidence went also to show that the defect in this link consisted in or resulted from its having been bent while cold, that this tended to weaken the iron and in this instance had cracked the link somewhat on the outer curve of the bend, and that the link broke at the point of this crack. It was shown to be the duty of certain employees of defendant stationed along its line to inspect the links attached to cars to be put in trains or forming the couplings between cars in trains at Chattanooga, Birmingham, and some points between Birmingham and the place where this link broke, and [128] also that it was the duty of the conductor of freight trains and the other train-men to maintain such inspection as occasion afforded throughout the runs or trips of such trains; and the evidence affords ground for inference that there was a negligent omission on the part of such employees to perform this duty, or if performed, the failure to discover the defect in and to remove this link was the result of negligence..

      14

      The foregoing statement of facts, either proved or finding lodgment in the tendencies of the evidence, together with. the evidence of the law of Mississippi, as to the master's liability for injuries sustained by an employee in his service, will suffice for the consideration and determination of the question which is of chief importance in this case, namely, whether the defendant is liable at all on the facts presented by this record for an injury sustained by the defendant in the State of Mississippi. The affirmative of this inquiry is sought to be rested and maintained upon two distinct propositions. In the first place, it is insisted that the. negligence which one aspect of the evidence tends to establish Is that of the defendant m respect of a duty which the law imposes upon the master and which whether performed or undertaken to be performed in the particular instance by the hand of the master or by the hand of one to whom he had delegated its performance is yet to be taken as being performed or attempted to be performed by the master himself, in such sort that the employer is responsible for its misperformance or non-performance whereby injury results to one of his employees under the doctrine of the common-law and wholly irrespective of statutory provisions. These doctrines are presumed, and also shown by the evidence in this case, to obtain in the State of Mississippi; and the defendant being an Alabama corporation it can­ not be questioned that an action may be maintained in this State to recover damages for an injury sustained in Mississippi, by one of its servants, if the facts present a good cause of action under the law of that State. It is manifest beyond adverse inference on the evidence, conceding the link, the breaking of which caused the accident, to have been in a defective condition when it came to defendant's road at Chattanooga attached to, and intended to be used in the further transportation, of the foreign car, that it was so used from that point to the place of the accident, that this defective condition of the link was patent to such observation as should have been bestowed upon it and that the defect in it was the proximate cause of the injury to the plaintiff, it [129] is, we say clear upon every aspect of the testimony, conceding all this to be true, that the use of that link in coupling the foreign car to the defendant's train and also in its use throughout the voyage from Chattanooga into Mississippi was due to the negligence of employees of the defendant who were charged by it with the duty of inspecting the link before and at the time of incorporating the foreign car into this train and at the several points in Alabama where inspectors were stationed as shown by the evidence, and also of the train-men charged with the duty of inspection as the train was en route. There is no pretense that the defendant had not been sufficiently careful in the selection of these inspectors or that they were incompetent. It is not pretended that they were insufficient in number or stationed at points too widely separated along the line. There is no such idea advanced as that the defendant was negligent in the purchasing of links of adequate strength, and supplying them to these inspectors and to trains gene­ rally; or that there was any necessity for the continued use of this link upon a discovery of its defective condition; but on the contrary it is affirmatively shown that the defend­ ant purchased and supplied its trains and employees with all necessary links of good quality and perfect condition to be used in its trains, to supply the places of links which be­ came defective from use, and to substitute for defective links coming to this road with foreign cars. The only negligence, in other words and in short, which finds support by direction or inference in any tendency of the evidence, is that of per­ sons whose duty it was to inspect the links of the train, and remove such as were defective and replace them with others which were not defective. This was the negligence not of the master, the defendant, but of fellow-servants of the plaintiff, for which at common-law the defendant is not liable. Thus it is said in McKinney on Fellow-Servants, § 127 : "It is a very common thing for train hands to receive injury through the negligence of persons employed by the company to inspect their cars to discover defects and repair them. The weight of authority, perhaps, is to the effect that the negligence of such employees in the performance of such duties cannot be attributed to the company, and it is consequently not liable for it." Citing among other cases Smith v. Potter, 46 Mich. 258; s. c. 2 Am. & Eng. R. R. Cas. 140; Mackin v. Railroad Co., 135 Mass. 201; s. c.

      15

      15 Am. & Eng. R. R. Cas. 196; Railroad Co. v. Webb, 12 Ohio St. 475; Railroad Co. v. Rice, 11 So. West Rep. (Ark.) 699; Kidwell v. Railroad Co. 3 Wood (U. S.) 313; and our own case

      16

      [130] of Smoot v. Mobile & Montgomery R. R. Co. 67 Ala. 13; and these and other cases are cited to the same proposition in 7 Am. & En. Encyc. of Law p. 864, note.

      17

      There are cases which hold to the contrary, but the law is and has long been settled in this State as we have stated it, the case of Smoot v. Mobile (t Montgomery R. R. Co. supra, being directly in point.—Mobile & Ohio R. R. Co. v. Thomas, 42 Ala. 672, 720 et seq; Mobile & Montgomery Ry. Co. v. Smith, 59 Ala. 245; Louisville & Nashville R. R. Co. v. A.llen, 78 Ala. 494.

      18

      This being the common-law applicable to the premises as understood and declared in Alabama, it will be presumed in our courts as thus declared to be the common-law of Mississippi, unless the evidence shows a different rule to have been announced by the Supreme Court of the State as being the common-law thereof. The evidence adduced here fails to show any such thing; but to the contrary it is made to appear from the testimony of Judge Arnold and by the decisions of the Supreme Court of Mississippi which were introduced on the trial below that that court is in full accord with this one in this respect. Indeed, if any thing, those decisions go further than this court has ever gone in applying the doctrine of fellow-servants to the exemption of railway companies from liability to one servant for injuries resulting from the negligence of another, holding in one case that a hostler whose only duty it was to supply an engine with sufficient sand before turning it over to the engineer to go on the road is a fellow-servant of the engineer for whose negligent failure to supply the same the company would not be liable.–L. & N. R. R. Co. v. Petty, 67 Miss. 255; in another, that a section foreman and a laborer working under him were fellow-servants in such sort that their common master would not be liable for the negligence of the former in attempting to repair a fishbar which he ought to have discarded and applied for a new one.—Lagrave v. Mobile & Ohio R. R. Co. 67 Miss. 532; and in yet another case, that a section foreman and train-man are fellow-servants in respect of the Ifegligence of the former unknown to the company in failing to keep the track in repair, and that an engineer on a passing train who was injured in consequence could not recover against common employer.–N. 0. J. & G. N. R. R. Co. v. Hughes, 49 Miss. 258; and the doctrine of this case is said by Mr. McKinney to be "substantially the rule recognized by the English common-law decisions." McKinney on Fellow-servants, p. 82 § 29. See also McMaster v. Illinois Central R. R. Co. 65 Miss. 264.

      19

      [131] Proceeding therefore on the presumptions we are authorized to indulge and also on the evidence adduced in this case as to the law of Mississippi in this connection, and upon the testimony most favorable to the plaintiff as to the cause of his injuries, we feel entirely safe in declaring that plaintiff has shown no cause of action under the common-law as it is understood and applied both here and in Mississippi.

      20

      It is, however, further contended that the plaintiff, if his evidence be believed, has made out a case for the recovery sought under the Employer's Liability Act of Alabama, it being clearly shown that there is no such, or similar law of force in the State of Mississippi. Considering this position in the abstract, that is dissociated from the facts of this particular case which are supposed to exert an important influence upon it, there can not be two opinions as to its being unsound and untenable. So looked at, we do not understand appellee's counsel even to deny either the proposition or its application to this case, that there can be no recovery in one State for injuries to the person sustained in another unless the infliction of the injuries is actionable under the law of the State in which they were received. Certainly this is the well established rule of law subject in some jurisdictions to the qualification that the infliction of the injuries would also support an action in the State where the suit is brought, had they been received within that State. 3 Am. & Eng. Encyc. of Law, p. 508-9; Hyde’s Admr. v. Wabash, St. Louis & Pacfic Ry. Co. 61 Iowa, 441; East Tenn. Va. & Gu. R. R. Co. v. Lewis., 14 S. W. Rep. 603; Buckles v. Ellers, 72 Incl. 220; Willis v. Mo. Pac. Ry. Co. 61 Texas, 432; Woodward v. M.S. & N. I R. R. Co. 10 Ohio St. 121; Whitford v. Panama Railroad Co. 23 N. Y. 465; Debovois v. .N. Y. L. E. & W. R. R. Co. 98 N. Y. 377; N C. & St. L. Ry. Co..v. Foster, 11 Amer. & Eng. R. R. Cas. 180; 2 Rover on Railroads, p. 1149 ; Kahl v. M & C. R. R. Co. 95 Ala. 337; C. St. L. & JJio. R. R. Co. v. Doyle, 60 Miss. 977; Davis 1'. N. Y. & N E. R. R. Co. 143 Mass. 301; LeForest v. Tolman, 117 Mass. 109; s. c. 19 Amer. Rep. 400; Lime­ killer v. H. & St. J. R. R. Co. 33 Kan. 83; The Scotland, 105 U. S. 24; The Santa Cruz, 1 C. Rob. 50; A. '1'. & S. F. R. R. Co. v. Moore, 11 Am. & Eng. R. R. Cas. 243.

      21

      But it is claimed that the facts of this ease take it out of the general rule which the authorities cited above abundantly support, and authorize the courts of Alabama to subject the defendant to the payment of damages under section 2590 of the Code, although the injuries counted on were sustained in Mississippi under circumstances which involved no liability on the defendant by the laws of that State.

      22

      [132] This insistence is in the first instance based on that aspect of the evidence which goes to show that the negligence which produced the casualty transpired in Alabama, and the theory that wherever the consequence of that negligence manifested itself, a recovery can be had in Alabama. We are referred to no authority in support of this proposition, and exhaustive investigation on our part has failed to disclose close any. There are at least two well considered cases against it, one of which involved an effort to recover for personal injuries sustained in Alabama under circumstances which afforded no cause of action in Alabama in the courts of Tennessee where the causal negligence occurred and where also had the negligence manifested itself in the results complained of there, the plaintiff would have been entitled to recover. The accident happened on a train going from Nashville to Chattanooga, in Tennessee, on a railway which runs for a comparatively short distance through Alabama. The negligence relied on consisted in the failure of employees of the defendant charged in that behalf to discover and remedy a defective brake before the train left Nashville as well as during its passage through Tennessee. While the train was running through Alabama, a brakeman was killed in consequence of the defect in this brake. All this is precisely on all fours with our case in those of its aspects most favorable to the plaintiff. That plaintiff, the court conceded, would have had a good cause o · action under the law of Tennessee, the place of the negligence, if his intestate had been injured within its limits. So here, the plaintiff on one aspect of the evidence would have had a good cause for ac ion in Alabama, the place of the negligence, had he been injured in Alabama. But it was found in that case that the law of Alabama gave no cause of action for the negligent failure to inspect the appliances used in operating a train, but held the brakeman and the inspectors to be fellow-servants in respect thereto, just as here the laws of Mississippi afforded no redress for the consequence of such negligence, though our statutes have since the Tennessee decision provided therefor; and it was held on the authority of Mobile & Ohio R. R. Co. v. Thomas, 42 Ala. 672, that there could have been no recovery in Alabama and that of consequence no cause of action existed in Tennessee, the court saying: '·There is no question but the laws of Alabama· · · controlled the rights of the parties in this case, and whether there was error in this part of the charge (referring to an instruction as to defendant's liability on the negligence shown) as given, or the refusal of the specific instructions asked for (substantial-[133]-ly that the negligence of a car inspector from which a brakeman suffers injury is no ground for action against their common employer,) depends wholly upon the laws of that State. Nashville, Chattanooga & St. Louis By. Co. v. Foster, 10 Lea, 352 ; s. o. 11 Amer. & Eng. E. E. Ca's. 180. In the other case the precise point here under consideration was brought before the Supreme Court of Mississippi, in an action instituted in that State sounding in damages for fatal injuries inflicted upon plaintiff's intestate in the State of Tennessee. It was insisted that inasmuch as the death of the deceased resulted from the negligent failure of a train dispatcher in Mississippi to give requisite orders to the trainmen at a certain point in Tennessee, the rights of the parties were de­ terminable by the laws of Mississippi the place of the disastrous negligent omission. But the court held to the contrary, saying: "The right of the appellee is determinable by the laws of Tennessee, in which State the killing of her husband occurred. The view that no recovery could be had here, except for a result traceable to an omission of duty in Mississippi is unfounded. Physical force proceeding from this State and inflicting injury in another State might give rise to an action in either State, and vice versa but the omission of duty in Mississippi cannot transfer a consequence of it manifested physically in another State to Mississippi. The cases of injuries commenced in one jurisdiction and completed in another illustrate our views on this subject. The true view is that the legal entity called the corporation is omni-present on its railroad, and the presence or absence of negligence with respect to an occurrence at any point of the line is not to be resolved by the place at which an officer or employe was stationed for duty. The question is as to duty operating effectually at the place where its alleged failure caused harm to result. The locality of the collision was in Tennessee. It was there, if any where, that the company was remiss in duty, for there is where its proper caution should have been used."–Chicago, St. Louis & New Orleans R. R. Co. v. Doyle, 60 Miss. 977, 984. If this doctrine was properly applied to the facts of that case where the act to be performed, the failure to perform which caused the in­ jury, could only be performed at a point in Mississippi and by an employe who was stationed and remained at that place, it would seem to address itself with more force to the case at bar where it appears the corporation was in fact present with the train and with the defective link every inch of the journey from Birmingham to the point of the accident in the person of the conductor and other trainmen who were charg-[134]-ed with the duty all along the line of discovering and removing the unsafe appliances.

      23

      The position of the Mississippi court appears to us to be eminently sound in principle and upon logic. It is admitted, or at least cannot be denied, that negligence of duty unproductive of damnifying results will not authorize or support a recovery. Up to the time train passed out of Alabama no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The face which created the right to sue, the injury without which confessedly no action would lie anywhere, transpired in the State of Mississippi. It was in that State, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all or not must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied on to justify a recovery transpired. Section 2590 of the Code of Alabama had no efficiency beyond the lines of Alabama. It cannot be allowed to operate upon facts occurring in another State so as to evolve out of them rights and liabilities which do not exist under the law of that State which is of course paramount in the premises. ·where the facts occur in Alabama and a liability becomes fixed in Alabama, it may be enforced in another State having like enactments, or whose policy is not opposed to the spirit of such enactments, but this is quite a different matter. This is hut enforcing the statute upon facts to which it is applicable all of which occur within the territory for the government of which it was enacted. Section 2590 of the Code, in other words is to be interpreted in the light of universally recognized principles of private international or interstate law, as if its operation had been expressly limited to this State and as if its first line read as follows: ''When a personal injury is received in Alabama by a servant or employee," &c., &c. The negligent infliction of an injury here under statutory circumstances creates a right of action here, which, being transitory, may be enforced in any other State or country the comity of which admits of it; but for an injury inflicted elsewhere than in Alabama our statute gives no right of recovery, and the aggrieved party must look to the local law to ascertain what his rights are. Under that law this plaintiff had no cause of action, as we have seen, and hence he has no rights which our courts can enforce, unless it be upon a consideration to be presently adverted to. We have not been inattentive to the suggestions of counsel in this connection, which are based upon that rule of the statutory and common crim-[135]-inal law under which a murderer is punishable where the fatal blow is delivered, regardless of the place where death ensues.—Green v. State, 66 Ala. 40. This principle is patently without application here. There would be some analogy if the plaintiff had been stricken in Alabama and suffered in Mississippi, which is not the fact. I here is, however, an analogy which is afforded by the criminal law, but which points away from the conclusion appellee's counsel desire us to reach. This is found in that well established doctrine of criminal law, that where the unlawful act is committed in one jurisdiction or State and takes effect-produces the result which it is the purpose of the law to prevent, or, it having ensued, punish for-in another jurisdiction or State, the crime is deemed to have been committed and is punished in that jurisdiction or State in which the result is manifested, and not where the act was committed. 1 Bish. Cr. Law, § 110 et seq.; 1 Bish. Cr. Pro. §53 et seq.

      24

      Another consideration-that referred to above-it is insisted, entitles this plaintiff to recover here under the Employer's Liability Act for an injury inflicted beyond the territorial operation of that act. This is claimed upon the fact that at the time :plaintiff was injured he was in the dis­ charge of duties which rested on him by the terms of a contract between him and defendant which had been entered into in Alabama, and, hence, was an Alabama contract, in connection with the facts that plaintiff was and is a citizen of this State, and the defendant is an Alabama corporation. These latter facts-of citizenship and domicile respectively of plaintiff and defendant–are of no importance in this connection, it seems to us, further than this: they may tend to show that the contract was made here, which is not controverted, and if the plaintiff has a cause of action at all, he, by reason of them, may prosecute it in our courts. They have no bearing on the primary question of existence of a cause of action, and as that is the question before us, we need not further advert to the fact of plaintiff's citizenship or defendant's domicile.

      25

      The contract was that plaintiff should serve the defendant in the capacity of a brakeman on its freight train between Birmingham, Alabama, and Meridian, Mississippi, and should receive as compensation a stipulated sum for each trip from Birmingham to Meridian and return. The theory is that the Employer's Liability Act became a part of this contract; that the duties and liabilities which It prescribes became contractual duties and liabilities, or duties and liabilities springing out of the contract, and that these duties [136] attended upon the execution whenever its performance was required—in Mississippi as well as in Alabama—and that the liability prescribed for a failure to perform any of such duties attached upon such failure and consequent injury wherever it occurred, and was enforceable here because imposed by an Alabama contract notwithstanding the remission of duty and the resulting injury occurred in Mississippi, under whose laws no liability was incurred by such remission. The argument is that a contract for service is a condition precedent to the application of the statute, and that "as soon as the contract is made the rights and obligations of the parties, under the Employer's Act, became vested and fixed," so that "no subsequent repeal of the law could deprive the injured party of his rights nor discharge the master from his liabilities," &c., &c. I£ this argument is sound, and it is sound if the duties and liabilities pre­ scribed by the act can be said to be contractual duties and obligations at all, it would lead to conclusions the possibility of which has not hitherto been suggested by any court or law writer, and which, to say the least, would be astounding to the profession. For instance: If the act of 1885 becomes a part of every contract of service entered into since its passage, just "as if such law were in so many words expressly included in the contract as a part thereof," as counsel insist it did, so as to make the liability of the master to pay damages from injuries to a fellow-servant of his negligent employe, a contractual obligation, no reason can be conceived why the law existing in this regard prior to the pas­ sage of that act did not become in like manner a part of every contract of service then entered into, so that every such contract would be deemed to contain stipulations for the non-liability of the master for injuries flowing from the negligence of a fellow-servant, and confining the injured servant's right to damage to a claim against his negligent fellow-servant-the former, in other words, agreeing to look alone to the latter. There were many thousands of such contracts existing in this country and England at the time when statutes similar to section 2590 of our Code were enacted, there were indeed many thousands of such contracts existing in Alabama when that section became the law of this State. Each of these contracts, if the position of plaintiff as to our statute being embodied into the terms of his contract so that its duties were contractual duties, and its liabilities contractual obligations to pay money can be maintained, involved the assurances of organic provisions, State and Federal, of the continued non-liability of the master for the [137] negligence of his servants, notwithstanding the passage of such statutes. Yet these statutes were passed, and they have been applied to servants under pre-existing contracts as fully as to servants under subsequent contracts, and there has never been a suggestion even in any part of the commonlaw world that they were not rightly so applied. If plaintiff's contention is well taken, many a judgment has gone on the rolls in this State, and throughout the country, and has been satisfied, which palpably overrode vested rights without the least suspicion on the part of court or counsel that one of the most familiar ordinances of the fundamental law was being violated. Nay more, another result not heretofore at all contemplated would ensue. Contracts for serving partly in Alabama might be now entered into in adjoining States where the common-law rule still obtains, as in Mississippi, for instance, where the servant has no right to recover for the negligence of his fellow, and the assumption of this risk under the law becoming, according to the argument of counsel, a contractual obligation to bear it, such contracts would be good in Alabama and as to servants entering into them, our statute would have no operation even upon negligence and resulting injury within its terms occurring wholly in Alabama. And on the other hand, if this defendant is under a contractual obligation to pay the plaintiff the dam­ ages sustained by him because of the injury inflicted in Mississippi, the contract could be of course enforced in Mississippi and damages there awarded by its courts, not­ withstanding the law of that State provides that there can be no recovery under any circumstances whatever by one servant for the negligence of his fellow employe. We do not suppose that such a proposition ever has been or ever will be made in the courts of Mississippi. Yet that it should be made and sustained is the. natural and necessary sequence of the position advanced in this case. These considerations demonstrate the infirmity of plaintiff's position in this connection, and serve to show the necessity and propriety of the conclusion we propose to announce on this part of the case. That conclusion is, that the duties and liabilities incident to the relation between the plaintiff and the defendant which are involved in this case, are not imposed by and do not rest in or spring from the contract between the parties. The only office of the contract, under section 2590 of the Code, is the establishment of a relation between them, that of master and servant; and it is upon that relation, that incident or consequence of the contract, and not upon the rights of the parties under the contract, that our statute operates. The law is not con-[138]-cerned with the contractual stipulations, except in so far as to determine from them that the relation upon which it is to operate exists. Finding this relation the statute imposes certain duties and liabilities on the parties to it wholly regardless of the stipulations of the contract as to the rights of the parties under it, and, it may be, in the teeth of. such stipulations. It is the purpose of the statute and must bethe limit of its operation to govern persons standing in the relation of master and servants to each other in respect of their conduct in certain particulars within the State of Alabama. Mississippi has the same right to establish govern­ mental rules for such persons within her borders as Alabama; and she has established rules which are different from those of our law. And the conduct of such persons toward each other is, when its legality is brought in question, to he adjudged by the rules of the one or the other States as it falls territorially within the one or the other. The doctrine is like that which prevails in respect of other relations, as that of man and wife. Marriage is a contract. The entering into this contract raises up certain duties and imposes certain liabilities in all civilized countries. What these duties and liabilities are at the place of the contract are determinable by the law of that place ; but when the parties go into other jurisdictions, the relation created by the contract under the laws of the place of its execution will he recognized, but the personal duties, obligations and liabilities incident to the relation are such as exist under the law of the jurisdiction in which an act is done or omitted as to the legality, effect or consequence of which the question arises. It might as well he said where there is a marriage in Alabama and the parties remove to Mississippi, and the wife there makes a contract which is void in Mississippi but valid under our statute, and subsequently they return to Alabama, that our courts will enforce that contract, or if such husband while in Mississippi does an act which is innocuous and lawful in that State, but which if done here would entail liability upon him, and the parties afterwards return here, that the liability imposed by our laws could be enforced here, because the parties entered into the contract here, as that a master is liable here for conduct towards his servant which was proper, or at least involved no liability, where it took place, simply because the contract which created the relation was entered into in this State. The whole argument is at fault. The only true doctrine is that each sovereignty, state or nation, has the exclusive power to finally determine and declare what acts or [139] omission in the conduct of one to another, whether they be strangers or sustain relations to each other which the law recognizes, as parent and child, husband and wife, master and servant, and the like, shall impose a liability in damages for the consequent injury, and the courts of no other sovereignty can impute a damnifying quality to an act or omission which afforded no cause of action where it transpired. These propositions find illustration and support in the case of Whitford v. The Panama R. R. Co., 23 N.Y. 465, where the relation involved was that of carrier and passenger, a relation which had been created by a contract made in New York, between a corporation and a citizen thereof for carriage, commencing in that State and ending in San Francisco, via Panama and over the Panama railroad. The passenger was killed through the fault of the corporation's servants while being transported along this railroad. The law of New York gave to the personal representative of a person whose death was caused by the wrongful act or omission of another, a right of action therefor in all cases where the deceased, had the injury fallen short of death, could have recovered. It did not appear that the laws of New Granada where the injury was inflicted, authorized any recovery on the facts alleged and proved. It was urged, as here, that the domicile of the parties and the fact that they contracted in New York took the case out of general rules as to territorial limitations upon the operation of statutes, but the plaintiff was non-suited, it being held in effect that the laws of New Granada where controlling as to the duties and liabilities incident to the relation which existed between them, while the contract of carriage was being performed in that country, and that the carrier so far as care and diligence were concerned owed the passenger no duties there except such as were imposed upon the relation by the local law, and that no liability for negligence and its results not prescribed by that law rested on the company. And the court, inter alia, said: ·'Suppose the government of New Granada to have enacted that the proprietors of a railroad company should not be responsible for the negligence of its servants, provided there was no want of due care in selecting them; it could not be pretended that its will could be set at naught by prosecuting the corporation in the courts of another State where the law was different. . . . The true theory is, that no suit whatever respecting this injury could be sustained in the courts of this State, except pursuant to the law of international comity. By that law foreign contracts and foreign transactions, out of which liabilities have arisen, [140] may be prosecuted in our tribunals by the implied assent of the government of this State ; but in all such cases, we administer the foreign law as from the proofs we find it to be, or as without proofs, we presume it to be." So, in the case of Gray v. Jackson & Co., 51 N. H., 9, there was a contract of affreightment by the terms of which goods were to be carried out of one State into and through other States. They were lost in a State other than that in which the con­ tract was made and the carriage commenced. By the law of the place of the contract the carrier was liable for the loss under the circumstances shown in evidence had it occurred in that State. By the law of the State where the loss occurred, however, the carrier was not liable. In an action for the loss prosecuted in the State of the contract, the law, not of that State, but of the place of the loss which operated as to the particular transaction on the relation of shipper and carrier and prescribed the duties and liabilities incident to that relation in that State, regardless of the place where the contract creating the relation was entered into, was applied and made to determine the rights of the parties to be other than they were under the law of the place of the contract which was also, as here, the place of the forum.

      26

      The foregoing views will suffice to indicate the grounds of our opinion that the rights of this plaintiff are determinable solely by the law of the State of Mississippi, and of our conclusion that upon no aspect or tendency of the evidence as to the circumstances under which the injury was sustained and as to the laws of Mississippi obtaining in the premises was the plaintiff entitled to recover.

      27

      The general affirmative charge requested for defendant should have been given. The other very numerous assignments of error need not be considered.

      28

      For the error in refusing to instruct the jury to find for the defendant if they believed the evidence, the judgment is reversed and the cause will be remanded.

    • 1.2 Powell v. Sappington

      1
      495 So.2d 569 (1986)
      2
      Billy L. POWELL, et al.
      v.
      Ronald T. SAPPINGTON, et al.
      3
      84-1230.
      4

      Supreme Court of Alabama.

      5
      August 29, 1986.
      6

      James P. Rea and S. Shay Samples of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellants.

      7

      Charles E. Sharp and Marcia E. Wright of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.

      8
      HOUSTON, Justice.
      9

      This case calls for the application of choice of law principles in a workmen's compensation context. The parties ask this Court to answer the following question: Does the filing of a claim and receipt of benefits pursuant to the Alabama Workmen's Compensation Act by one who has been injured in another state give rise to an exception to the Alabama conflicts rule of lex loci delicti for purposes of that person's co-employee suit; i.e., will Alabama law control disposition of the suit rather than the law of the state of injury?

      10

      The undisputed facts of this case are as follows:

      11

      Plaintiff Billy Powell, a resident of Alabama, was employed as a truck driver by Barber Pure Milk Company, an Alabama corporation. While en route back to Alabama from a pick-up of milk in Georgia, Powell wrecked his truck in Monroe, Georgia, and was injured. As a result, Powell filed for and received disability benefits pursuant to the Alabama Workmen's Compensation Act. Code 1975, § 25-5-1, et seq.

      12

      Powell then brought an action in Alabama against two of his co-employees, Ronald Sappington and Coster Smith, for their alleged negligence in failing to inspect, repair, service, and maintain his truck. Powell's wife Carolyn joined in that suit as co-plaintiff, alleging loss of her husband's services.

      13

      Sappington and Smith moved for summary judgment on the grounds that Georgia law applies to the action against them and that Georgia law forbids co-employee suits. The trial court granted the motion and entered a final judgment pursuant to Rule 54(b), Ala.R.Civ.P.

      14

      The Powells appeal, arguing that because Powell elected to pursue his remedy under the Alabama Workmen's Compensation Act rather than under the Georgia Workmen's Compensation Act, Alabama law rather than Georgia law applies to their action against Sappington and Smith. Because Alabama law permits co-employee suits, they argue that summary judgment was improperly entered. We do not agree.

      15

      This Court reaffirmed in Norris v. Taylor, 460 So.2d 151 (Ala.1984), that the conflicts rule of lex loci delicti applies to tort [570] actions brought in this state. As the Court stated in that decision, "[u]nder [lex loci delicti], an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred." 460 So.2d at 152. Application of this rule in the instant case would require us to follow the law of Georgia, the state where Powell's injury occurred. In doing so, we would be constrained to affirm the trial court's entry of summary judgment, since Georgia law forbids co-employee suits where workmen's compensation is available.[1]

      16

      In essence, the Powells argue that an exception to the lex loci delicti rule is applicable in a workmen's compensation context where an injured employee invokes that exception by electing to accept benefits under the workmen's compensation act of his state of employment and not of the state where the injury occurred. Recognition of such an exception, however, would create a broad avenue for abuse. As another court has stated, "[adoption of this exception would allow] a claimant with a choice of jurisdictions in a compensation claim ... to juggle with the substantive law uniformly applied ... and thus defeat its application." Wardell v. Richmond Screw Anchor Co., 133 Ga.App. 378, 382, 210 S.E.2d 854, 857 (1974). We therefore hold that a claimant who is injured in another state cannot evade the application of the lex loci delicti rule merely by filing his workmen's compensation claim in Alabama.

      17

      Although we reject the exception claimed by the Powells, our inquiry is not yet at an end. It is eligibility for benefits under the workmen's compensation act of the state of the employee's injury, not whether a claim for benefits was made or received in Alabama, which determines whether a bar to a common law action exists. Wilson v. Fraser, 353 F.Supp. 1 (D.Md.1973); Security Insurance Group v. Plank, 133 Ga.App. 815, 212 S.E.2d 471 (1975). It becomes necessary, therefore, to determine whether Billy Powell was eligible for compensation under the Georgia Act. If not, he may be able to pursue his co-employee suit under principles of Georgia law. If so, however, he will be subject to its bar against co-employee suits.

      18

      Georgia Code 1981, § 34-9-1, defines "employee" for purposes of workmen's compensation as "every person in the service of another under any contract of hire or apprenticeship...." It does not by its terms exclude coverage for nonresident employees of nonresident employers. Moreover, the Georgia Court of Appeals in Security Insurance Group v. Plank, supra, held that, under Georgia law, jurisdiction in a workmen's compensation case attaches when an employee suffers an accidental injury in Georgia, regardless of the employee's residence or where he contracted for employment. Thus, nothing in the law of Georgia would have prevented Billy Powell from receiving workmen's compensation benefits under the Georgia Act. That being so, the Powells' suit against Sappington and Smith is prohibited by Georgia law; thus, the trial court's entry of summary judgment in favor of Sappington and Smith was proper.

      19

      The judgment of the trial court is due to be, and it is hereby, affirmed.

      20

      AFFIRMED.

      21
      TORBERT, C.J., and MADDOX, SHORES, BEATTY and STEAGALL, JJ., concur.
      22
      JONES, ALMON and ADAMS, JJ., dissent.
      23
      JONES, Justice (dissenting).
      24

      I respectfully dissent.

      25

      [571] Employed in Alabama and injured in Georgia, Powell could have filed for workmen's compensation benefits under either the law of Alabama (the site of his employment), or the law of Georgia (the site where the injury occurred). See, Code 1975, § 25-5-35. See, also, Restatement (Second) Conflict of Laws § 181 (1969). Because he elected to pursue his remedy under the Alabama Workmen's Compensation Act, Powell invoked that Act in its entirety. Therefore, Powell's right to a cause of action for personal injury against his co-employees is also derived from the Alabama statute:

      26
      "Where the injury or death for which compensation is payable under this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not such party is subject to the provisions of this chapter, the employee, or his dependents in case of his death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and, at the same time, may bring an action against such other party to recover damages for such injury or death, and the amount of such damages shall be ascertained and determined without regard to this chapter." Code 1975, § 25-5-11. (Emphasis supplied.)
      27

      The majority cites our recent reaffirmance of the conflict of laws rule of lex loci delicti as applied to tort actions in Alabama (see Norris v. Taylor, 460 So.2d 151 (Ala.1984)) as support for its holding that Georgia law governs Powell's right to sue his co-employees. I have no problem with this general rule, in a non-workmen-compensation context, requiring that an injured party's substantive rights be determined by the law of the state where the injury occurred, even where, as here, the alleged negligence occurred in Alabama. Indeed, this rule was correctly applied in Norris, because in that case "the record fail[ed] to disclose any allegations or proof that the employee [had] pursued, or [was] pursuing, his workmen's compensation claims under the Alabama Act." See Norris, 460 So.2d at 153 (Jones, J., concurring in the result). There is, however, a critical distinction between the facts in Norris and the facts of the instant case which, I believe, requires us to apply here the workmen's compensation exception to the general conflict of laws rule.

      28

      By electing to file for and accept benefits under the workmen's compensation law of his state of employment (here, Alabama), and not under the workmen's compensation law of the state in which he was injured, Powell necessarily subjected himself to Alabama's entire workmen's compensation statute. He took its limitations and restrictions, as well as its benefits. Western Union Telegraph Co. v. George, 239 Ala. 80, 194 So. 183 (1940). In Norris, there was no affirmative showing that the injured employee claimed workmen's compensation benefits in Alabama (the state of his employment) rather than in Kentucky (the state where the injury occurred). Powell, however, did file for and did receive workmen's compensation benefits in Alabama— the state of his employment; therefore, he is entitled to the substantive right of a cause of action for personal injury against his co-employees. § 25-5-11. See, also, Elston v. Industrial Lift Truck Co., 420 Pa. 97, 216 A.2d 318 (1966). (The accident in question occurred before the effective date of the 1984 amendment restricting third-party claims against co-employees. See Act No. 85-41, § 3, Second Special Session, 1984-85 Ala. Acts.)

      29

      From the very inception of this State's Workmen's Compensation Act in 1919, an injured employee's right to recover from a third party has been regulated by the Act. Originally, a "third party" did not include any employer covered by the Act. Harris v. Louisville & N.R. Co., 237 Ala. 366, 186 So. 771 (1939). The 1939 amendment redefined "third party" to include "any party other than the employer, whether or not such party is subject to the provisions of this chapter." Act 661, § 8, Ala. Acts 1939; now codified at § 25-5-11(a), 1975 Code. The 1984 amendment (effective Feb. 1, 1985) further restricts third-party claims against co-employees, allowing recovery [572] for willful injury only. In other words, the public policy of the Workmen's Compensation Act, which subjects employers and employees to its provisions, also controls the right of injured employees to bring third-party claims. Here, having elected coverage under Alabama's Act, Powell is entitled to all its provisions, including the third-party provisions of § 25-5-11. The "forum shopping" evil described in the majority opinion is hardly justified in light of the public policy expressed in § 25-5-35 that gives an injured employee the right to proceed under Alabama's Workmen's Compensation Act even if he first recovers under the workmen's compensation act of another state. Sager v. Royce Kershaw Co., 359 So.2d 398 (Ala.Civ.App.1978).

      30

      In my opinion, the majority has misapplied the traditional conflict of laws rule to the facts of this case. The traditional lex loci delicti rule still has full application to the trial of the third party common law action. It is the Georgia law, not the Alabama law, that governs the trial of this case in Alabama. But nothing in this conflict of laws rule requires us to apply the statutory law of Georgia—the workmen's compensation act not here invoked—to exclude the injured employee's right to bring the third party action. See Norris, 460 So.2d at 153 (Jones, J., concurring in the result).

      31
      ALMON and ADAMS, JJ., concur.
      32

      [1]Georgia Code 1981, § 34-9-11, which provides for co-employee immunity, reads in pertinent part as follows:

      33

      "The rights and remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer...." (Emphasis added.)

    • 1.3 Ling v. Jan's Liquors

      1
      237 Kan. 629 (1985)
      2
      703 P.2d 731
      3
      LYLLIS LING, Appellant,
      v.
      JAN'S LIQUORS, Appellee.
      4
      No. 56,921
      5

      Supreme Court of Kansas.

      6
      Opinion filed July 17, 1985.
      7

      Donald W. Vasos, of Vasos, Kugler & Dickerson, of Kansas City, argued the cause and Stephen G. Dickerson, of the same firm, was with him on the briefs for appellant.

      8

      Mark V. Parkinson, of Payne & Jones, Chartered, of Olathe, argued the cause, and Keith Martin, of the same firm, was with him on the brief for appellee.

      9

      [630] The opinion of the court was delivered by

      10
      SCHROEDER, C.J.:
      11

      Lyllis Ling (plaintiff-appellant) brought this action in the trial court alleging negligence on the part of Jan's Liquors (defendant-appellee) in selling alcohol to a minor whose intoxication allegedly resulted in a car accident causing plaintiff's injury. Ling appeals from an order and judgment dismissing her complaint against defendant on the ground that it fails to state a claim upon which relief can be granted pursuant to K.S.A. 60-212(b). We affirm the decision of the trial court.

      12

      In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, Ling is afforded the safeguard of having all her allegations taken as true and all inferences drawn favorably to her. Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983). Applying that principle, we look to the complaint for the facts. It alleges:

      13

      At approximately 1 a.m., on Sunday, February 3, 1980, Ling was driving her automobile east on Johnson Drive in Fairway, Johnson County, Kansas, when the vehicle became disabled. Ling left the vehicle and was standing beside it when she was struck by a vehicle driven by Richard Shirley. At that time Shirley was nineteen years old and a minor under Missouri law governing the sale of intoxicating liquors to minors.

      14

      At the time of the accident, Shirley was operating a motor vehicle under the influence of alcohol. A blood alcohol examination taken at Shawnee Mission Medical Center, Overland Park, Kansas, showed a blood alcohol concentration of 0.30 percent by weight.

      15

      The petition also alleges that Jan's Liquors, a Missouri retail liquor establishment, sold or provided to Richard Shirley on the night of February 2, 1980, an alcoholic beverage which rendered him incapable of operating a motor vehicle.

      16

      On February 3, 1982, Ling filed a petition in the District Court of Johnson County, Kansas, seeking damages for the injuries she received which resulted in the amputation of both her legs. On July 20, 1983, the defendant filed a motion to dismiss pursuant to K.S.A. 60-212(b).

      17

      The district court granted the motion to dismiss, concluding (1) "there is no liquor vendor liability in Kansas and there is no indication that the Kansas Supreme Court will impose the same"; (2) Kansas law and not Missouri law should apply to the [631] instant action; and (3) the Kansas long-arm statute would apply to give the court in personam jurisdiction in the case.

      18

      Initially, we must ascertain whether the trial court erred in finding the Kansas long-arm statute (K.S.A. 60-308b) applied to give it in personam jurisdiction over Jan's Liquors, a nonresident defendant. The trial court based its finding on K.S.A. 60-308(b)(7), which provides:

      19
      "(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual's personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
      20

      ....

      21
      "(7) causing to persons or property within this state any injury arising out of an act or omission outside of this state by the defendant if, at the time of the injury either (A) the defendant was engaged in solicitation or service activities within this state; or (B) products, materials or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of trade or use."
      22

      The defendant argues that this section of the Kansas long-arm statute is limited to products liability cases. We agree.

      23

      In order for personal jurisdiction to be obtained under K.S.A. 60-308(b)(7), the defendant must have had the type of contact within the state as defined in either alternative (A) or (B). In other words, the defendant must either have been engaged in solicitation or service activities within the state, or the product which was the cause of injury must have been used or consumed within the state in the ordinary course of trade or use. In Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968), this court recognized that the legislative intent of K.S.A. 60-308(b)(7) was to grant in personam jurisdiction to the courts of this state over those who engage in the manufacture, sale, or servicing of products if they receive or can anticipate some direct or indirect financial benefit from the sale, trade, use or servicing of their products within this state.

      24

      We find that the sale by an out-of-state liquor vendor to an occasional Kansas customer does not fit within the provisions of either alternative (A) or (B). Moreover, based on our analysis of legislative intent in Tilley, we find the liquor vendor is not the kind of defendant the legislature intended to reach when it [632] enacted K.S.A. 60-308(b)(7). Therefore, the trial court erred by relying on K.S.A. 60-308(b)(7).

      25

      An Illinois court met with a similar factual setting and jurisdictional issue in Wimmer v. Koenigseder, 128 Ill. App.3d 157, 470 N.E.2d 326 (1984). In that case, the plaintiff brought suit on behalf of the decedent whose death resulted from injuries she received in a car accident in Illinois. The defendant-driver who caused the accident, a minor for purposes of Illinois law, had been served alcohol in a nearby Wisconsin tavern where he was of legal drinking age. The plaintiff brought suit in Illinois against the Wisconsin liquor vendor. The trial court dismissed for lack of jurisdiction. The appellate court reversed and held, in part, that Illinois had in personam jurisdiction under the section of its long-arm statute which provides jurisdiction over any person who commits a "tortious act within this State." Ill. Ann. Stat. ch. 110, § 2-209(a)(2) (Smith-Hurd 1983). The court stated, "For the purposes of the long-arm statute, `physical presence is not necessary for the commission of a tortious act within this State; ... the place of a wrong is where the last event takes place which is necessary to render the actor liable.' [Citations omitted.]" 470 N.E.2d at 331. The court found the "last event" was the injury in Illinois. The fact that the sale occurred entirely in another state was of no consequence. The court further found that due process requirements of "minimum contracts" were met.

      26

      K.S.A. 60-308(b)(2) is similar to the provision relied on by the Illinois court. It provides jurisdiction over any person who commits a "tortious act within this state."

      27

      In the case at bar, the negligent act (selling liquor to a minor) was committed outside this state, while the injury occurred within this state. Therefore, in order for K.S.A. 60-308(b)(2) to apply, it must be found that an injury which occurs in this state as a result of a negligent act outside this state is equivalent to the commission of a "tortious act within the state." This is a question of first impression in Kansas.

      28

      Vernon's Kansas C. Civ. Proc. § 60-308 (1965) contains several articles discussing the Kansas long-arm statute. Each article concludes that if the injury caused by a tortious act occurs within this state, even though the first part of the tortious act took place outside the state, the occurrence of the injury is sufficient for establishing personal jurisdiction under (b)(2).

      29

      Other jurisdictions, in interpreting provisions similar to K.S.A. [633] 60-308(b)(2), have given the term "tortious act" a broad interpretation, deeming it to imply the whole continuum of actions involved, rather than a single act. Vandermee v. Dist. Ct., 164 Colo. 117, 433 P.2d 335 (1967); see also Jack O'Donnell Chevrolet, Inc. v. Shankles, 276 F. Supp. 998 (N.D. Ill. 1967); Gray v. Amer. Radiator & Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). Under this interpretation, the "tortious act" is not complete until the injury has occurred. In other words, the "tortious act" is deemed to have occurred in the state where the injury occurs.

      30

      In J.E.M. Corp. v. McClellan, 462 F. Supp. 1246 (D. Kan. 1978), it was held that a fraudulent misrepresentation made from without the jurisdiction (telephone calls) which cause tortious injury within the jurisdiction constituted a "tortious act" in this state within the meaning of K.S.A. 60-308(b)(2). The court found that a sufficient constitutional basis for the exercise of jurisdiction existed and arose out of the intentional tortious act causing injury to a resident in the forum on a claim for damages arising from that act.

      31

      Even though the McClellan case involved an intentional tort while the case at bar involves negligence, we find the reasoning in McClellan is applicable. In McClellan, the "tortious act" included both the misrepresentations from outside the state and the resulting injury in Kansas. In the case at bar, the "tortious act" included both the selling of the liquor in Missouri and the injury to the plaintiff in Kansas. The act was completed in Kansas. Therefore, we hold that under the provisions of K.S.A. 60-308(b)(2), it is possible to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside the state.

      32

      This holding is consistent with our oft-repeated assertion that the long-arm statute should be liberally construed to assert jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment to the U.S. Constitution. Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248 (1974); Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 (1968).

      33

      Accordingly, we find the trial court reached the correct result for the wrong reason, and so its decision on this point is upheld. Strehlow v. Kansas State Board of Agriculture, 232 Kan. 589, 592, 659 P.2d 785 (1983).

      34

      [634] The plaintiff next contends the trial court erred in finding that Kansas substantive law governed the action.

      35

      Under Missouri law, a tavern owner can be held civilly liable for selling intoxicating liquor to a minor. Ling argues that the rule in Kansas is that the law of the state where the tort occurred is applied to determine the substantive rights of the parties; that the tort in this case was the wrongful sale of the intoxicating liquor to a minor; and, therefore, Missouri substantive law should apply. Jan's Liquors argues that Kansas courts are to apply the law of the state where the injury occurred and, since the injury in this case occurred in Kansas, Kansas law should govern.

      36

      The rule in this state is that the law of the state where the tort occurred — lex loci delicti — should apply. McDaniel v. Sinn, 194 Kan. 625, 400 P.2d 1018 (1965); Pool v. Day, 141 Kan. 195, 40 P.2d 396 (1935). However, this court has never addressed the conflict of law issue in a multistate tort action — that is, where the negligent act originated outside the state, but the resultant injury occurred in the state. In Swearngin v. Sears, Roebuck & Company, 376 F.2d 637, 639 (10th Cir.1967), the court stated:

      37
      "`[T]he general rule is that where an act of omission or commission occurs at one place and resulting death, personal injury, or damage takes place at another, the situs of the actionable wrong is the place at which the death, personal injury or property damage takes place.'"
      38

      Ling acknowledges that under the doctrine of lex loci delicti, the situs of the injury determines the governing law. However, she argues that in this type of case, the accident site is overshadowed by the location of the unlawful sale of liquor. Ling suggests that this court should adopt an analytical approach to determine whose law should govern. The "analytical approach" has been adopted by a number of courts in recent years. It allows the court to resolve the choice of substantive law by giving to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual situation, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation. See Annot., 29 A.L.R.3d 603; Balts v. Balts, 273 Minn. 419, 142 N.W.2d 66 (1966); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968). We reject the analytical approach for determining what law should govern the substantive rights of the parties.

      39

      We hold that in an action for recovery of damages for injuries [635] sustained in Kansas which were the result of a negligent act in another state, the liability of the defendant is to be determined by the laws of this state. Accordingly, the trial court did not err by applying Kansas law.

      40

      The final issue is whether Kansas recognizes a claim for relief against one furnishing liquor to a minor in favor of those injured as a consequence of the minor's intoxication.

      41

      Kansas does not have a dram shop act. Further, there has been no judicial imposition of dram shop liability in this state. Therefore, the question we are faced with is whether — in the absence of a dram shop act — this court should impose liability on the defendant, thus creating a new cause of action in this state.

      42

      Ling argues that we should impose liability upon the defendant on the basis of common-law principles of negligence or negligence per se. Jan's Liquors argues that in the absence of a special dram shop act specifically creating a civil remedy and civil cause of action against the commercial purveyor of intoxicants, no remedy or cause of action can be maintained.

      43

      At common law, and apart from statute, no redress existed against persons selling, giving, or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence. This rule was based on the theory that the proximate cause of the injury was the act of the purchaser in drinking the liquor and not the vendor in selling it. See, e.g., State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951); 45 Am.Jur.2d, Intoxicating Liquors § 553. This court recognized the common-law rule of nonliability for a liquor vendor in Stringer v. Calmes, 167 Kan. 278, 205 P.2d 921 (1949).

      44

      In recent years, many states have retreated from or have abrogated the strict common-law rule. Fourteen states now have dram shop statutes which give, generally, a right of action to persons injured in person, property, or means of support, by an intoxicated person, or in consequence of the intoxication of any person, against the person selling or furnishing the liquor which caused the intoxication in whole or in part. See appendix.

      45

      Courts in 29 jurisdictions, including the District of Columbia, have judicially abrogated the common-law doctrine of no liability. See appendix. Six states with dram shop laws have judicially imposed liability in some form. See appendix. Many of the [636] jurisdictions which now recognize a common-law right of action do so on the premise that the serving of liquor to a minor or an inebriated person initiates a foreseeable chain of events for which the tavern owner may be held liable. See, e.g., Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977). Others of these jurisdictions conclude that criminal statutes in force in their jurisdiction which proscribe sales of intoxicants to minors or inebriated persons establish a standard of conduct for tavern owners and their employees, deviation from which may constitute negligence per se. See, e.g., Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). These courts reason that the criminal statutes represent public policy and public interest in preventing injury to those specific classes incompetent to handle intoxicating liquors as well as injury to the public at large.

      46

      Six states which do not have dram shop laws have refused to impose liability judicially. See appendix. These jurisdictions have considered, but declined to follow, the new trend of cases, because they find the issue is one of public policy which is best left to the legislative body. These courts refuse to find negligence per se on the ground that the criminal statutes were intended to be purely regulatory in nature and were not intended to create a civil cause of action.

      47

      By way of historical background to aid in a better understanding of the problems involved in this appeal, we point out that the territorial legislature of Kansas enacted a dram shop act in 1859. That law included a civil damage statute which provided a cause of action against the seller, barterer or giver of intoxicating liquors for damage or injury caused "by any intoxicated person or in consequence of intoxication." The statute was included in the 1881 revision of the statutes (L. 1881, ch. 128, § 15) and again in 1923 when it was designated R.S. 1923, 21-2150 and stated:

      48
      "Every wife, child, parent, guardian or employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent or guardian, employer or other person shall have a right of action, in his or her own name, against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian, or next friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this state having jurisdiction thereof."
      49

      [637] Several Kansas cases have discussed and upheld the constitutionality of the statute. See Coy v. Cutting, 138 Kan. 109, 23 P.2d 458 (1933); Zibold v. Reneer, 73 Kan. 312, 85 Pac. 290 (1906); Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753 (1899).

      50

      On November 2, 1948, the citizens of this state voted to amend art. 15 of the Constitution of the State of Kansas. The result was that only the open saloon is now prohibited in this state. (Art. 15, § 10, Constitution of Kansas.) The new constitutional provision gave the legislature the power to regulate, license, and tax the manufacture and sale of intoxicating liquors and to regulate the possession and transportation of intoxicating liquors.

      51

      In 1949 the legislature repealed certain statutes under the "Bone-Dry Law" (ch. 41 — Intoxicating Liquors), because the Kansas constitutional prohibition against the manufacture and sale of intoxicating liquors had been repealed. The legislature, exercising its power, enacted the "Kansas Liquor Control Act." (Ch. 41, art. 1 through art. 27.) The new act regulated the manufacturing, bottling, blending, selling, bartering, transportation, delivery, furnishing or possessing of alcoholic liquor. The Act was a comprehensive plan to regulate liquor from the time of its manufacture within the state or importation into the state until it was ultimately sold by a licensed retailer for use or consumption. Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 752, 408 P.2d 877 (1965). Included in the Act was the prohibition against the sale of intoxicating liquors to minors and incompetents. G.S. 1949, 41-715 stated:

      52
      "No person shall knowingly or unknowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any minor; and no such minor shall represent that he is of age for the purpose of asking for, purchasing or receiving alcoholic liquor from any persons, except in cases authorized by law. No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is mentally incompetent, or any person who is physically or mentally incapacitated by the consumption of such liquor.... [L. 1949, ch. 242, § 78; March 9.]"
      53

      The statute also provided for a fine or imprisonment.

      54

      The 1949 legislature — the same legislature which enacted the criminal regulatory statute — chose not to reenact the dram shop act. It was repealed in G.S. 1949, 41-1106, and has never been reenacted.

      55

      The 1949 law prohibiting sale of intoxicating liquor to minors was amended in 1963 (L. 1963, ch. 267, § 1) and in 1965 (L. 1965, ch. 277, § 8). K.S.A. 41-715 now states:

      56
      [638] "No minor shall represent that he is of age for the purpose of asking for, purchasing or receiving alcoholic liquor from any person except in cases authorized by law. No minor shall attempt to purchase or purchase alcoholic liquor from any person. No minor shall possess alcoholic liquor. No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is an incapacitated person, or any person who is physically or mentally incapacitated by the consumption of such liquor. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than two hundred dollars ($200) or by imprisonment for not to exceed thirty (30) days, or both such fine and imprisonment in the discretion of the court. [L. 1949, ch. 242, § 78; L. 1963, ch. 267, § 1; L. 1965, ch. 277, § 8; June 30.]"
      57

      The 1965 legislature enacted L. 1965, ch. 277, § 7, making it a crime for any person to knowingly or unknowingly sell to, buy for, give to, or furnish, either directly or indirectly, any intoxicating liquor to any person under the age of twenty-one years. That statute, K.S.A. 1965 Supp. 38-715, included a provision revoking the retail liquor license issued under K.S.A. 41-308 of any retailer who violated the statute. The revocation penalty was later repealed when K.S.A. 21-3610 was enacted in 1969. When the legislature enacted that statute in 1969, it omitted the phrase "knowingly or unknowingly," making the present violation a general intent crime.

      58

      Since the legislature's repeal of the civil liability statute in 1949, there has been no reported Kansas case asserting the liability to third persons of one selling or furnishing liquor. The last case to discuss the dram shop statute was Stringer v. Calmes, 167 Kan. 278, which was decided in 1949 prior to the repeal of the act. In that case the court held, unequivocably, that no common-law right of action existed.

      59

      In recent years, the Kansas legislature has made control of drunken drivers a high priority matter. Significant legislation has tightened the laws which deal with such offenses. The legislature of this state has considered all aspects of the problem of drunken driving in seeking solutions to the problem.

      60

      In 1984, limited dram shop legislation was introduced. (H.B. 2661). The proposed bill imposed liability on any person negligently selling or furnishing alcoholic beverages to a minor where the minor, under the influence thereof, caused death, personal injury or property damage to another. The bill died after it was passed out of committee.

      61

      On January 3, 1985, dram shop legislation was proposed by the [639] Kansas Attorney General. A press release of that date from his office states in part:

      62
      "Attorney General Robert T. Stephan has written letters to the newly appointed chairmen of the House and Senate Judiciary committees urging consideration of a dram shop law in Kansas, along with other measures to stiffen the state's drunk driving laws.
      63
      "Stephan wrote the letters to Senator-elect Robert Frey, Chairman of the Senate Judiciary Committee and Rep. Joe Knopp, Chairman of the House Judiciary Committee.
      64
      "The dram shop law Stephen proposes would give persons injured by an intoxicated person, their families and employers the specific right to sue stores selling package liquor or beer, private clubs and taverns. The clubs, taverns and stores could be found liable for damages if they sold beer or liquor to a person who already was intoxicated, or served them alcohol to the point of intoxication, provided that the intoxication contributed to the injury."
      65

      Five days later (January 8, 1985) another press release from the Attorney General's Office stated:

      66
      "Attorney General Robert T. Stephan said today he will advise the chairmen of the Judiciary committees he is modifying his proposals to combat drunk driving.
      67
      "`If you have decided that you have come up with a bad idea that you have a responsibility to say so,' Stephan said. `I have the courage to make suggestions for legislative study, and also have the courage to know when my proposals to deter drunk driving should be modified.
      68
      "`Upon reexamination, I believe that existing law can be strengthened to better combat drunk driving. The dram shop law which I proposed would only add to legal entanglements. Therefore, I am withdrawing my suggestion that a dram shop law be enacted and will continue to study further means to deal with drunk driving.'"
      69

      With this historical background in mind, we again turn to the plaintiff's arguments. Ling contends that the violation of K.S.A. 21-3610 and K.S.A. 41-715 (establishing criminal penalties for sale of alcoholic liquor to a minor) is a breach of a duty imposed by law and, thus, negligence per se. In other contexts this court has recognized the rule that breach of a duty imposed by law or ordinance is negligence per se, and that damages may be predicated on its violation if the breach is the proximate cause of the injury or damages or substantially contributes to the injury. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980); Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 260, 320 P.2d 1061 (1958). We decline to find negligence per se in this case since to do so would subvert the apparent legislative intention.

      70

      The predecessor to K.S.A. 41-715 (of which K.S.A. 21-3610 was once a part) was first enacted in 1949, the same year the dram [640] shop act was repealed. Since that time, the legislature, although it has considered it, has not re-created a civil cause of action in favor of those injured as a result of a violation of the liquor laws. Clearly, the legislature would have done so had it intended for there to be a civil cause of action. K.S.A. 41-715 prohibits the dispensing of intoxicating liquors to certain classes of persons and is a comprehensive act to regulate the manufacture, sale, and distribution of alcoholic liquors. The legislature did not intend for it to be interpreted to impose civil liability. Therefore, we hold that the Missouri liquor vendor's violation of a criminal regulatory statute was not negligence per se.

      71

      As previously noted, the common-law rule is that, in the absence of legislation, the suppliers of alcohol are not liable to the victims of an intoxicated tortfeasor. Stringer, 167 Kan. 278. The common law remains in force in this state where the constitution is silent or the legislature has failed to act. K.S.A. 77-109. However, the common law is not static. It is subject to modification by judicial decision in light of changing conditions or increased knowledge where this court finds that it is a vestige of the past, no longer suitable to the circumstances of the people of this state. Indeed, we have not hesitated to adopt a new cause of action by judicial decision where we have determined that course was compelled by changing circumstances. See, e.g., Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974) (creating new cause of action of intentional infliction of emotional distress); McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982) (creating new cause of action for negligent entrustment). See also Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983).

      72

      Although empowered to change the common law in light of changed conditions, this court recognizes that declaration of public policy is normally the function of the legislative branch of government. Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle.

      73

      The court in Holmes v. Circo, 196 Neb. 496, 504-05, 244 N.W.2d 65 (1976), made the following astute observation with which we agree:

      74
      [641] "We are mindful of the misery caused by drunken drivers and the losses sustained by both individuals and society at the hands of drunken drivers, but the task of limiting and defining a new cause of action which could grow from a fact nucleus formed from any combination of numerous permutations of the fact situation before us is properly within the realm of the Legislature.
      75
      "The imposition of a common law duty of due care would create a situation rife with uncertainty and difficulty. If the commercial vendor is liable for negligence, does the host at a social gathering owe a duty to prospective victims of guests? The difficulties of recognizing intoxication and predicting conduct of an intoxicated patron without imposing some duty of inquiry are evident. Problems could also arise in the apportionment or sorting out of liability among the owners of various bars visited on `bar hopping' excursions. The correct standard of care to be used also presents a problem, as does the determination of whether all acts of the patron, including intentional torts, should be included within the liability of the tavern owner or operator."
      76

      In the final analysis, we find the decision should be left to the legislature.

      77

      Accordingly, we affirm the trial court's finding that the plaintiff failed to state a claim upon which relief could be granted.

      78
      HOLMES, J., concurring in part and dissenting in part:
      79

      I concur with the majority opinion that under the common law as it exists in this state there is no liability in this case and that the trial court was correct in dismissing plaintiff's case for failure to state a cause of action. When the legislature, in 1949, repealed R.S. 1923, 21-2150, it would appear obvious that it intended the common law to prevail. As pointed out by the majority opinion, the legislature has, on numerous occasions, revised our liquor control laws but has failed to re-enact legislation creating the cause of action sought by plaintiff and it is not our position to do so. Hence, I agree with the result reached by the majority opinion.

      80

      I disagree with that portion of the opinion which would apply long-arm jurisdiction under K.S.A. 60-308(b)(2) to the facts of this case. The tortious act of the defendant in selling liquor to a minor in Missouri is too far removed from the auto accident occurring hours later, in Kansas, to be considered the "commission of a tortious act within this state" as required by the statute. While plaintiff's unfortunate injuries were suffered in Kansas, they were not, in my opinion, the result of any tortious act committed in Kansas by Jan's Liquors. The tortious act of this defendant was complete upon the sale of the liquor in Missouri. There are not [642] sufficient minimum contacts in this case to justify personal jurisdiction under the long-arm statute. See Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945); Schlatter v. Mo-Comm Futures, Ltd., 233 Kan. 324, 662 P.2d 553 (1983).

      81
      McFARLAND and HERD, JJ., join in the foregoing concurring and dissenting opinion.
      82
      LOCKETT, J., concurring and dissenting:
      83

      I concur with the majority that: (1) under the provisions of K.S.A. 60-308(b)(2) it is possible to bring suit in Kansas to recover damages for injuries occurring in this state which resulted from negligent conduct outside the state; and (2) in an action for recovery of damages for injuries sustained in Kansas which were the result of a breach of a duty in another state, the liability of the defendant is to be determined by the laws of this state.

      84

      I cannot agree with the majority's denial of a right of action to persons injured in person, property or means of support, by an intoxicated person, or in consequence of the intoxication of any person, against the person illegally selling or furnishing the liquor which caused the intoxication in whole or in part. In reaching this conclusion, the majority, by denying that a cause of action exists, misapplies the common law, the legislature's acts and prior decisions of this court.

      85

      The majority, citing State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951), and 45 Am.Jur.2d, Intoxicating Liquors § 553, states, "At common law, and apart from statute, no redress existed against persons selling, giving, or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, whether on the theory that the dispensing of the liquor constituted a direct wrong or constituted actionable negligence." The Am.Jur.2d citation actually states, "At common law it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently held that in the absence of statute, there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished. The reason usually given for this rule is that the drinking of the liquor, not the furnishing of it, is the proximate cause of the injury.... [O]ne cannot become intoxicated by reason of liquor furnished him if he does not drink it."

      86

      [643] When the driver, Shirley, was furnished intoxicating liquor in this case he was not an able-bodied man. He was a minor. There is a statute in Kansas, as well as a similar one in Missouri, which prohibits the sale or furnishing of intoxicating liquor to a minor. K.S.A. 41-715. Clearly the common law is not a bar to Ling's action against the vendor who illegally furnished intoxicating liquor not to an able-bodied man, but to a minor.

      87

      The common law of England is the basic component of the common law adopted in the United States. Even if the common law is as the majority states, the courts of this country are not required to adhere to the decisions of the English common law courts unless such law is adopted by the state courts or by legislative enactment in aid of the general statutes.

      88

      Constitutional or statutory provisions in most states expressly declare the common law to be in force. The 1868 General Statutes of the State of Kansas, ch. 119, sec. 3 (now K.S.A. 77-109) provided that the common law shall remain in force in aid of the general statutes. The common law has been continuously incorporated into our law by our legislature to fill the voids in law where the constitution is silent or the legislature and the courts have failed to act.

      89

      When our legislature adopted the rule the common law was to remain in force in aid of the general statutes, it recognized that the common law was modified by our constitution and can be modified by the legislature when it enacts new laws or repeals old laws. The legislature also recognized that the common law can be modified by the courts when rendering judicial decisions and when the conditions and wants of the people require action (K.S.A. 77-109).

      90

      The courts of this state have never maintained that the common law is static and must be used to maintain the status quo. Like the Constitution of the United States and the constitution of this state, the common law grows as it is applied to new situations or as a need arises. The common law is judge-made and judge-applied. It is not to be followed blindly and can be changed when conditions and circumstances require if the prior law is unjust or has become bad public policy. In the past, this court has expanded the common law to meet the requirements of a modern society. It would be unfortunate to our economy and our developing society if we should cease to engage in the [644] common-law tradition of judicial expansion which adapts the law to the ever-changing needs and demands of a dynamic society.

      91

      The general principle of negligence law is that every person owes a duty to avoid creating situations which pose an unreasonable risk of harm to others. Negligence exists where the duty owed by one person to another is breached. Further, if recovery is to be obtained for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) that the person was damaged by that negligence. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).

      92

      In 1974, we recognized that an action exists against one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. Dawson v. Associates Financial Services Co., 215 Kan. 814, 820, 529 P.2d 104 (1974). In McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982), we determined that parents who knowingly and negligently furnish a car to their son, who by reason of age, experience, mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care, are responsible for the injuries caused by their negligent entrustment of the automobile to their son. In Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983), there was evidence that an architect-engineer had actual knowledge of safety standards contained in a construction contract and had actual knowledge that the prescribed safety precautions were not being followed by the contractor. We imposed a duty upon the architect-engineer to take reasonable action to prevent injury to the contractor's employees. In Durfliger v. Artiles, 234 Kan. 484, where a state hospital physician, as part of his employment, participated in a hospital team which recommended that a committed patient be discharged because he was no longer dangerous to himself or others, we imposed a duty upon that physician to use reasonable and ordinary care and discretion in making the recommendation to release the patient. The duty imposed to protect was a duty owed to both the patient and the public. In each of these cases where this court imposed a duty for a negligent act, the defendants did not purposefully violate a law.

      93

      We have recognized there is a distinction between "negligence" and "negligence per se." Negligence must be found by [645] the jury from the evidence, while "negligence per se" results from a violation of law or ordinance. Kansas follows the rule that a breach of duty imposed by law or ordinance is negligence per se, and liability in damages can be predicated on violation of that law where that breach is the proximate cause of the injury or damages or substantially contributes to the injury. Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 260, 320 P.2d 1061 (1958).

      94

      The majority states that a breach of a duty imposed by law or ordinance is negligence per se, unless the legislature clearly did not intend to impose civil liability for the breach. It states that K.S.A. 41-715, which prohibits the dispensing of alcoholic liquors to certain classes of persons, was intended by the legislature to regulate the sale of liquor and was not intended to impose civil liability. It concludes that K.S.A. 41-715, while imposing criminal penalties for a violation of the statute, is merely a portion of a comprehensive act to regulate the manufacture, sale and distribution of alcoholic beverages and, therefore, not a basis for negligence per se.

      95

      Does the majority suggest that such is true of all similar acts passed by the legislature or is it limited only to this act? Consider Chapter 8, "Automobiles and Other Vehicles," which is a comprehensive act to regulate the licensing, sale and use of automobiles. Is not the same true of Chapter 8 as is true of Chapter 41, that while it contains certain provisions for licensing, other sections provide criminal sanctions for violation of those sections? The majority would imply that an individual who, while driving an automobile, intentionally and illegally proceeded into a controlled intersection and struck another vehicle is not required to bear the responsibility for any damage caused.

      96

      The legislature did not create a civil cause of action in favor of those injured as a result of a violation of the traffic laws. Does this legislative silence mean that the legislature did not intend for such violations of the traffic laws to be interpreted to impose civil liability, that a violation of the traffic laws is not negligence per se because the legislature remained silent? Rarely does the legislature specifically create a civil cause of action in favor of those injured as a result of a violation of a law.

      97

      K.S.A. 41-715 is not a licensing statute enacted by the legislature to regulate who may sell liquor. Chapter 41 of the statutes, [646] which is entitled "Intoxicating Liquors and Beverages," contains several sections which regulate the issuance of a license. K.S.A. 41-715, however, does not appear in a licensing article of Chapter 41. It appears in Article 7, which is entitled "Certain Prohibited Acts and Penalties." A violator of 41-715 may, in addition to receiving a fine not to exceed $200.00, receive a sentence not to exceed 30 days or both a fine and imprisonment in the discretion of the court. Any person violating 41-715 is deemed guilty of a misdemeanor by the statute.

      98

      The majority is either failing to overrule prior case law or ignoring it. In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), this court determined that for public safety reasons, K.S.A. 21-4209 prohibits minors, habitual drunkards, narcotics addicts and felons from obtaining explosives or detonating substances. It was the public policy of the act that the party whose conduct violates the act must bear the responsibility for the damage caused. The defendant, in violation of the statute, sold gunpowder to a sixteen-year-old boy who used the gunpowder to reload some shells. The boy was injured when his shotgun misfired. The minor predicated his successful action against the seller of the gunpowder upon the theory that actionable negligence occurs when one breaches a duty imposed by a criminal statute and the breach results in an injury of the type intended to be prevented.

      99

      K.S.A. 41-715 forbids the sale of alcoholic liquor to a minor, any person who is incapacitated or any person who is physically or mentally incapacitated by the consumption of liquor. The statute establishes a criminal penalty for such sales. The purpose of 41-715 is to prevent the sale of alcoholic beverages to those individuals who are unlikely to be able to handle alcohol. These individuals not only need protection from their own acts, but society needs protection from them.

      100

      Are we required to take legislative silence as to civil liability for alcohol vendors who violate a statute as an expression of legislative intent? Why has the majority suddenly determined that legislative silence is action? Prior to the legislature's repeal of the dram shop act in G.S. 1949, 41-1106, the legislature knew that this court had stated that where there is a breach of a duty imposed by law and injury occurs as a result of the breach, the injured party is entitled to compensation. If the legislature [647] wishes to exempt a specific class of violators from liability for damages which they cause by their negligence, then the legislature should speak. The court should not legislate an exemption. There is no more persuasive evidence of the legislature's intention than a statute undertaken by the legislature to give expression to that intention. Where legislative enactments in the past have contained no express provision that their violation shall result in tort liability, and no implication to that effect, this court has adopted the requirements of that enactment as a standard of conduct necessary to protect certain individuals or society as a whole.

      101

      Section 18 of the Bill of Rights of the Constitution of the State of Kansas provides that all persons who suffer injuries to their person, reputation or property have a remedy by due course of law. In addition to our constitution, the legislature is aware of the principle of negligence law that every person is under a duty to avoid creating situations which impose an unreasonable risk of harm to others. Many times we have stated that a breach of a duty imposed by law or ordinance constitutes negligence per se and where injury occurs as a result of the breach, the injured party is entitled to compensation. Cognizant of our past actions, the legislature may well consider that when a judge-made common-law rule has become obsolete, anachronistic and oppressive, the court is responsible for change.

      102

      The majority states that the issue presented is whether this court should judicially enact a "dram shop" law imposing civil liability upon liquor vendors who violate 41-715. The real issue is whether this court should follow our previous case law which determined that public policy requires, where a party's conduct violates a penal statute, that party must bear the responsibility for the damage caused as a result of the violation.

      103

      A statute is an expression of policy arising out of specific situations and addressed to the attainment of a particular aim of the legislature. The majority should not rewrite the statute. It should neither enlarge it nor contract it. The majority should take the statute as it finds it. This it has failed to do.

      104
      PRAGER and MILLER, JJ., join in the foregoing concurring and dissenting opinion.
      105
      [648] APPENDIX
      106
        Following is a brief summary of the present status of the civilliability of liquor vendors in all jurisdictions.1. ALABAMA Dram shop act (Ala. Code § 6-5-71 [1975]). No    common-law vendor liability. DeLoach v. Mayer Elec. Supply    Co., 378 So.2d 733 (Ala. 1979).2. ALASKA No statutory vendor liability. Common-law liability.    Nazareno v. Urie, 638 P.2d 671 (Alaska 1981); and Morris v.    Farley Enterprises, Inc., 661 P.2d 167 (Alaska 1983).3. ARIZONA No statutory vendor liability. Common-law    liability. Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200    (1983); and Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d    213 (1983), overruling earlier Arizona cases adhering to    nonliability rule.4. ARKANSAS No statutory vendor liability. No common-law    liability. Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656    (1965).5. CALIFORNIA Prevailing common-law vendor liability for    injury or damage resulting from intoxication abrogated in    1978 by Cal. Bus. & Prof. Code § 25602 (West 1985 Supp.) and    Cal. Civ. Code § 1714 (West 1985).6. COLORADO No statutory vendor liability. Common-law    liability. Kerby v. Flamingo Club, 35 Colo. App. 127, 532    P.2d 975 (1974).7. CONNECTICUT Dram shop act (Conn. Gen. Stat. § 30-102    [1985]). No common-law vendor liability. Nelson v. Steffens,    170 Conn. 356, 365 A.2d 1174 (1976); and Slicer v. Quigley,    180 Conn. 252, 429 A.2d 855 (1980).8. DELAWARE No statutory vendor liability. No common-law    liability. Wright v. Moffitt, 437 A.2d 554 (Del. 1981).9. DISTRICT OF COLUMBIA No statutory vendor liability.    Common-law liability. Marusa v. District of Columbia, 484    F.2d 828 (D.C. Cir.1973).10. FLORIDA Prevailing common-law vendor liability for injury    or damage resulting from intoxication. Davis v.    Shiappacossee, 155 So.2d 780 (Fla. 1963); and Prevatt v.    McClennan, 201 So.2d 780 (Fla. Dist. App. 1967), limited in    1981 by Fla. Stat. § 768.125 (1983).11. GEORGIA Dram shop act (Ga. Code § 3-3-22 [1982]). No    common-law liability. Keaton v. Kroger Co., 143 Ga. App. 23,    237 S.E.2d 443 (1977). [649] 12. HAWAII No statutory vendor liability. Common-law liability.    Ono v. Applegate, 62 Hawaii 131, 612 P.2d 533 (1980).13. IDAHO No statutory vendor liability. Common-law liability.    Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980),    overruling earlier Idaho case adhering to nonliability rule.14. ILLINOIS Dram shop act (Ill. Stat. Ann. ch. 43, ¶ 135    [Smith-Hurd 1984 Supp.]). No common-law vendor liability.    Demchuk v. Duplancich, 92 Ill.2d 1, 440 N.E.2d 112 (1982);    and Thompson v. Trickle, 114 Ill. App.3d 930, 449 N.E.2d 910    (1983).15. INDIANA No statutory vendor liability. Common-law    liability. Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847    (1966).16. IOWA Dram shop act (Iowa Code Ann. § 123.92 [West 1984    Supp.]). Common-law vendor liability. Haafke v. Mitchell,    347 N.W.2d 381 (Iowa 1984).17. KANSAS No statutory vendor liability. No common-law    liability.18. KENTUCKY No statutory vendor liability. Common-law    liability. Pike v. George, 434 S.W.2d 626 (Ky. 1968).19. LOUISIANA No statutory vendor liability. Common-law    liability. Thrasher v. Leggett, 373 So.2d 494 (La. 1979).20. MAINE Dram shop act (Me. Rev. Stat. Ann. tit. 17, § 2002    [1983]). Status of common-law liability not confirmed.21. MARYLAND No statutory vendor liability. No common-law    liability. Felder v. Butler, 292 Md. 174, 438 A.2d 494    (1981); and Fisher v. O'Connor's, Inc., 53 Md. App. 338, 452    A.2d 1313 (1982).22. MASSACHUSETTS No statutory vendor liability. Common-law    liability. Adamian v. Three Sons, Inc., 353 Mass. 498, 233    N.E.2d 18 (1968); and Michnik-Zilberman v. Gordon's Liquor,    Inc., 390 Mass. 6, 453 N.E.2d 430 (1983).23. MICHIGAN Dram shop act (Mich. Stat. Ann. § 18.993    [Challaghan 1984 Supp.]). Common-law vendor liability. Thaut    v. Finley, 50 Mich. App. 611, 213 N.W.2d 820 (1973).24. MINNESOTA Dram shop act (Minn. Stat. § 340.95 [1984]).    Common-law liability. Trial v. Christian, 298 Minn. 101, 213    N.W.2d 618 (1973). Recently, Minnesota Supreme Court refused    to extend liability to a social host. Holmquist v. Miller,    No. C7-83-1919 (5/3/85).25. MISSISSIPPI No statutory vendor liability. Common-law [650]     liability. Munford, Inc. v. Peterson, 368 So.2d 213 (Miss.    1979).26. MISSOURI No statutory vendor liability. Common-law    liability. Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333    (Mo. App. 1980); and Carver v. Schafer, 647 S.W.2d 570 (Mo.    App. 1983).27. MONTANA No statutory vendor liability. No common-law    liability. Runge v. Watts, 180 Mont. 91, 589 P.2d 145    (1979); Folda v. City of Bozeman, 177 Mont. 537, 582 P.2d    767 (1978); and Swartzenberger v. Billings Labor Temple    Assn., 179 Mont. 145, 586 P.2d 712 (1978). But see Deeds v.    United States, 306 F. Supp. 348 (D. Mont. 1969).28. NEBRASKA No statutory vendor liability. No common-law    liability. Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65    (1976).29. NEVADA No statutory vendor liability. No common-law    liability. Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450    P.2d 358 (1969).30. NEW HAMPSHIRE No statutory vendor liability. Common-law    liability. Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900    (1965).31. NEW JERSEY No statutory vendor liability. Common-law    liability established in Rappaport v. Nichols, 31 N.J. 188,    156 A.2d 1 (1959), recently extended to social hosts, Kelly    v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984).32. NEW MEXICO No statutory vendor liability. Common-law    liability. Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982);    MRC Properties, Inc. v. Gries, 98 N.M. 710, 652 P.2d 732    (1982); and Porter v. Ortiz, 100 N.M. 58, 665 P.2d 1149 (Ct.    App. 1983), overruling earlier New Mexico cases adhering to    nonliability rule.33. NEW YORK Dram shop act (N.Y. Gen. Oblig. Law § 11-101    [McKinney 1984 Supp.]). Common-law liability. Berkeley v.    Park, 47 Misc.2d 381, 262 N.Y.S.2d 290 (1965).34. NORTH CAROLINA Dram shop act (N.C. Gen. Stat. § 18B-121 et    seq. [1983]). Common-law liability. Hutchens v. Hankins, 63    N.C. App. 1, 303 S.E.2d 584, rev. denied, 309 N.C. 191    (1983).35. NORTH DAKOTA Dram shop act (N.D. Cent. Code § 5-01-06 [1983    Supp.]). No common-law liability. Thoring v. Bottonsek, 350    N.W.2d 586 (N.D. 1984). [651] 36. OHIO Dram shop act (Ohio Rev. Code Ann. § 4399.01 [Page    1982]). Common-law vendor liability. Mason v. Roberts, 33    Ohio St.2d 29, 294 N.E.2d 884 (1973).37. OKLAHOMA Has not ruled on subject.38. OREGON Prevailing common-law vendor liability. Campbell v.    Carpenter, 279 Or. 237, 566 P.2d 893 (1977) limited in 1979    by Or. Rev. Stat. § 30.950 et seq. (1983).39. PENNSYLVANIA No statutory vendor liability. Common-law    liability. Jardine v. Upper Darby Lodge No. 1973, 413 Pa.    626, 198 A.2d 550 (1964).40. RHODE ISLAND Dram shop act (R.I. Gen. Laws § 3-11-1    [1976]). Status of common-law not confirmed.41. SOUTH CAROLINA Has not ruled on subject.42. SOUTH DAKOTA No statutory vendor liability. Common-law    liability. Walz v. City of Hudson, 327 N.W.2d 120 (S.D.    1982), overruling earlier South Dakota case adhering to    nonliability rule.43. TENNESSEE No statutory vendor liability. Common-law    liability. Mitchell v. Ketner, 54 Tenn. App. 656, 393 S.W.2d    755 (1964).44. TEXAS Has not ruled on subject.45. UTAH Dram shop act (Utah Code Ann. § 32-11-1 [1983 Supp.]).    Status of common-law liability not confirmed.46. VERMONT Has not ruled on subject.47. VIRGINIA Has not ruled on subject.48. WASHINGTON No statutory vendor liability. Common-law    liability. See, e.g., Callan v. O'Neil, 20 Wash. App. 32,    578 P.2d 890 (1978); and Halligan v. Pupo, 37 Wash. App. 84,    678 P.2d 1295 (1984).49. WISCONSIN No statutory vendor liability. Common-law    liability. Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d    108 (1984), overruling earlier Wisconsin cases adhering to    non-liability rule. Koback v. Crook, 123 Wis.2d ___, 366    N.W.2d 857 (1985), Wisconsin Supreme Court imposes liability    on social host who served liquor to a minor.50. WEST VIRGINIA Has not ruled on subject.51. WYOMING No statutory vendor liability. Common-law    liability. McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.    1983), overruling earlier Wyoming cases adhering to    nonliability rule.
  • 2 §1.1.2 Contract—place where contract was made

    • 2.1 Bradford Elec. Light Co. v. Clapper

      1
      286 U.S. 145 (1932)
      2
      BRADFORD ELECTRIC LIGHT CO., INC.
      v.
      CLAPPER, ADMINISTRATRIX.
      3
      No. 423.
      4

      Supreme Court of United States.

      5
      Argued February 15, 16, 1932.
      6
      Decided May 16, 1932.
      7

      CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.

      8

      [146] Messrs. Stanley M. Burns and George T. Hughes, with whom Mr. Wm. E. Leahy was on the brief, for petitioner.

      9

      [147] Mr. Robert W. Upton, with whom Mr. John E. Benton was on the brief, for respondent.

      10
      [150] MR. JUSTICE BRANDEIS delivered the opinion of the Court.
      11

      This action for damages was brought in a court of New Hampshire under the employers' liability provisions of the Employers' Liability and Workmen's Compensation Act of that State, N.H. Public Laws, 1926, c. 302, to recover for the death of Leon J. Clapper, which the plaintiff claimed was due to his employer's negligence. The case [151] was removed to the federal court on the ground of diversity of citizenship; the defendant, Bradford Electric Light Co., Inc., being a citizen and resident of Vermont and the plaintiff, Jennie M. Clapper, administratrix, being a citizen and resident of New Hampshire. It appeared that the Company had its principal place of business in Vermont and lines extending into New Hampshire; that Leon Clapper, a resident of Vermont, was employed by it there as a lineman for emergency service in either State; and that in the course of his duties, he was sent to restore some burned-out fuses at a substation in New Hampshire and while doing so was killed. The Company, invoking the full faith and credit clause of the Federal Constitution, set up as a special defense that the action was barred by provisions of the Vermont Compensation Act; that the contract of employment had been entered into in Vermont, where both parties to it then, and at all times thereafter resided; and that the Vermont Act had been accepted by both employer and employee as a term of the contract.

      12

      The District Court ruled that the action was properly brought under the laws of the State of New Hampshire; that the action was based on a tort occurring in that State; and that the Vermont Workmen's Compensation Act had no extra-territorial effect. Accordingly, that court rejected the special defense and denied a motion to dismiss. The case was tried three times before a jury, the third trial resulting in a verdict for the plaintiff in the sum of $4,000. The judgment entered thereon was first reversed by the Circuit Court of Appeals. But upon a rehearing, the judgment of the trial court was affirmed, one judge dissenting. 51 F. (2d) 992, 999. The Company filed in this Court both an appeal and a petition for writ of certiorari. The appeal was denied, and certiorari granted. 284 U.S. 221.

      13

      [152] The Vermont Workmen's Compensation Act provides that a workman hired within the State shall be entitled to compensation even though the injury was received outside the State, Vermont General Laws, c. 241, § 5770; that "employers who hire workmen within this state to work outside of the state, may agree with such workmen that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside this state by accident arising out of and in the course of such employment, and all contracts of hiring in this state shall be presumed to include such an agreement," § 5774; that every contract of employment made within the State shall be presumed to have been made subject to its provisions, unless prior to the accident an express statement to the contrary shall have been made, in writing, by one of the parties, § 5765; and that acceptance of the Act is "a surrender by the parties . . . of their rights to any other method, form or amount of compensation or determination thereof," § 5763. Neither the Company nor Leon Clapper filed a statement declining to accept any provision of the Vermont Act.

      14

      The New Hampshire Employers' Liability and Workmen's Compensation Act provides that the employer shall become subject to the workmen's compensation provisions of the Act only by filing a declaration to that effect, N.H. Public Laws, c. 178, § 4; and that even if the declaration is filed, the employee may, subsequent to the injury, still elect either to claim compensation, § 11, or to sue for damages at common law as modified by the employers' liability provisions of the Act. Failure to file such a declaration exposes the employer to a common law action of negligence in which the defenses of assumption of risk and injury by a fellow servant may not be interposed. §§ 2, 3. The Company filed in New Hampshire the declaration provided for by its statute.

      15

      [153] Thus each State has a workmen's compensation law of the elective type; but their provisions differ sharply. The New Hampshire statute, unlike that of Vermont, permits the employee or his representative to elect, after the injury, to sue for damages as at common law; and it was as a result of such an election made by the administratrix that the case at bar arose. The main question for decision is whether the existence of a right of action for Leon Clapper's death should be determined by the laws of Vermont, where both parties to the contract of employment resided and where the contract was made, or by the laws of New Hampshire, where the employee was killed.

      16

      First. It clearly was the purpose of the Vermont Act to preclude any recovery by proceedings brought in another State for injuries received in the course of a Vermont employment. The provisions of the Act leave no room for construction.[1] The statute declares in terms that when a workman is hired within the State, he shall be entitled to compensation thereunder for injuries received outside, as well as inside, the State, unless one of the parties elects to reject the provisions of the Act. And it declares further that for injuries wherever received the remedy under the statute shall exclude all other rights and remedies of the employee or his personal representative. If the accident [154] had happened in Vermont, the statute plainly would have precluded the bringing of an action for damages in New Hampshire under its employers' liability act.[2] For such action is predicated on a tort; and in Vermont an injury resulting from the employer's negligence is not a tort, if the provisions of the Compensation Act have been accepted. The question is whether the fact that the injury occurred in New Hampshire leaves its courts free to subject the employer to liability as for a tort. That is, may the New Hampshire courts disregard the relative rights of the parties as determined by the laws of Vermont where they resided and made the contract of employment; or must they give effect to the Vermont Act, and to the agreement implied therefrom, that the only right of the employee against the employer, in case of injury, shall be the claim for compensation provided by the statute?

      17

      Second. If the conflict presented were between the laws of a foreign country and those of New Hampshire, its courts would be free, so far as the restrictions of federal law are concerned, to attach legal consequences to acts done within the State, without reference to the undertaking of the parties, entered into at their common residence abroad, that such consequences should not be enforced between them. But the conflict here is between the laws of two States; and the Company in setting up as a defense a right arising under the Vermont statute, invokes Art. IV, § 1, of the Federal Constitution, which declares that "full faith and credit shall be given in each State to the public acts . . . of every other State." That a statute [155] is a "public act" within the meaning of that clause is settled. Modern Woodmen of America v. Mixer, 267 U.S. 544, 550, 551; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389, 393. See Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 360; Chicago & Alton R. Co. v. Wiggins Ferry Co., 119 U.S. 615, 622.[3] A federal court sitting in New Hampshire is bound equally with courts of the State to observe the command of the full faith and credit clause, where applicable.[4] The precise question for decision is whether that clause is applicable to the situation here presented.

      18

      Third. The administratrix contends that the full faith and credit clause is not applicable. The argument is that to recognize the Vermont Act as a defense to the New Hampshire action would be to give to that statute an [156] extra-territorial effect, whereas a State's power to legislate is limited to its own territory. It is true that full faith and credit is enjoined by the Constitution only in respect to those public acts which are within the legislative jurisdiction of the enacting State. See National Mutual Bldg. & Loan Assn. v. Brahan, 193 U.S. 635, 647; Olmsted v. Olmsted, 216 U.S. 386, 395.[5] But, obviously, the power of Vermont to effect legal consequences by legislation is not limited strictly to occurrences within its boundaries. It has power through its own tribunals to grant compensation to local employees, locally employed, for injuries received outside its borders, compare Quong Ham Wah Co. v. Industrial Accident Comm., 255 U.S. 445, dismissing writ of error, 184 Cal. 26; 192 Pac. 1021, and likewise has power to exclude from its own courts proceedings for any other form of relief for such injuries.[6] [157] The existence of this power is not denied. It is contended only that the rights thus created need not be recognized in an action brought in another State; that a provision which Vermont may validly enforce in its own courts need not be given effect when the same facts are presented for adjudication in New Hampshire.

      19

      The answer is that such recognition in New Hampshire of the rights created by the Vermont Act, can not, in any proper sense, be termed an extra-territorial application of that Act.[7] Workmen's compensation acts are [158] treated, almost universally, as creating a statutory relation between the parties — not, like employer's liability acts, as substituting a statutory tort for a common law tort. See Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423; Mulhall v. Nashua Mfg. Co., 80 N.H. 194, 197; 115 Atl. 449; Matter of Cameron v. Ellis Construction Co., 252 N.Y. 394, 396; 169 N.E. 622; Chandler v. Industrial Commission, 55 Utah 213, 217; 184 Pac. 1020; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 113, 117, 118; 170 N.W. 275; 171 N.W. 935. The relation between Leon Clapper and the Company was created by the law of Vermont; and as long as that relation persisted its incidents were properly subject to regulation there. For both Clapper and the Company were at all times residents of Vermont; the Company's principal place of business was located there; the contract of employment was made there; and the employee's duties required him to go into New Hampshire only for temporary and specific purposes, in response to orders given him at the Vermont office. The mere recognition by the courts of one State that parties by their conduct have subjected themselves to certain obligations arising under the law of another State is not to be deemed an extra-territorial application of the law of the State creating the obligation.[8] Compare [159] Canada Southern Ry. Co. v. Gebhard, 109 U.S. 527, 536, 537.

      20

      By requiring that, under the circumstances here presented, full faith and credit be given to the public act of Vermont, the Federal Constitution prevents the employee or his representative from asserting in New Hampshire rights which would be denied him in the State of his residence and employment. A Vermont court could have enjoined Leon Clapper from suing the Company in New Hampshire, to recover damages for an injury suffered there, just as it would have denied him the right to recover such damages in Vermont. Compare Cole v. Cunningham, 133 U.S. 107; Reynolds v. Adden, 136 U.S. 348, 353. The rights created by the Vermont Act are entitled to like protection when set up in New Hampshire by way of defense to the action brought there. If this were not so, and the employee or his representative were free to disregard the law of Vermont and his contract, the effectiveness of the Vermont Act would be gravely impaired. For the purpose of that Act, as of the workmen's compensation laws of most other States, is to provide, in respect to persons residing and businesses located in the State, not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate. Compare New York Central R. Co. v. White, 243 U.S. 188; Hawkins v. Bleakly, 243 U.S. 210; Mountain Timber Co. v. Washington, 243 U.S. 219.

      21

      Fourth. It is urged that the provision of the Vermont statute which forbids resort to common law remedies for injuries incurred in the course of employment is contrary to the public policy of New Hampshire; that the full faith and credit clause does not require New Hampshire to enforce an act of another State which is obnoxious to its public policy; and that a federal court sitting in that State may, therefore, decline to do so. Compare Union [160] Trust Co. v. Grosman, 245 U.S. 412. It is true that the full faith and credit clause does not require the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies. Thus, a plaintiff suing in New Hampshire on a statutory cause of action arising in Vermont might be denied relief because the forum fails to provide a court with jurisdiction of the controversy; see Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148, 149; compare Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377; or because it fails to provide procedure appropriate to its determination, see Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 359; compare Slater v. Mexican National R. Co., 194 U.S. 120, 128, 129; or because the enforcement of the right conferred would be obnoxious to the public policy of the forum, compare Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 277-279; Union Trust Co. v. Grosman, 245 U.S. 412; Bond v. Hume, 243 U.S. 15, 25; Converse v. Hamilton, 224 U.S. 243, 260, 261; or because the liability imposed is deemed a penal one, see Galveston, H. & S.A. Ry. Co. v. Wallace, 223 U.S. 481, 490, compare Stewart v. Baltimore & Ohio R. Co., 168 U.S. 445, 448. But the Company is in a position different from that of a plaintiff who seeks to enforce a cause of action conferred by the laws of another State. The right which it claims should be given effect is set up by way of defense to an asserted liability; and to a defense different considerations apply. Compare Home Ins. Co. v. Dick, 281 U.S. 397, 407, 408. A State may, on occasion, decline to enforce a foreign cause of action. In so doing, it merely denies a remedy, leaving unimpaired the plaintiff's substantive right, so that he is free to enforce it elsewhere. But to refuse to give effect to a substantive defense under the applicable law of another State, as under the circumstances here presented, subjects the defendant to irremediable liability. This may not be done. Compare Modern Woodmen [161] of America v. Mixer, 267 U.S. 544, 550, 551; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389; Royal Arcanum v. Green, 237 U.S. 531. See also Western Union Telegraph Co. v. Brown, 234 U.S. 542; Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55, 69.

      22

      Moreover, there is no adequate basis for the lower court's conclusion that to deny recovery would be obnoxious to the public policy of New Hampshire. No decision of the state court has been cited indicating that recognition of the Vermont statute would be regarded in New Hampshire as prejudicial to the interests of its citizens.[9] In support of the contention that the provision of the Vermont Act is contrary to the New Hampshire policy, it is urged that New Hampshire's compensation law is unique among workmen's compensation acts in that it permits the injured employee to elect, subsequent to injury, whether to bring a suit based upon negligence or to avail himself of the remedy provided by the Act; and that the legislature of New Hampshire has steadily refused to withdraw this privilege.[10] But the mere fact that the Vermont legislation does not conform to that of New [162] Hampshire does not establish that it would be obnoxious to the latter's public policy to give effect to the Vermont statute in cases involving only the rights of residents of that State incident to the relation of employer and employee created there. Northern Pacific R. Co. v. Babcock, 154 U.S. 190, 198. Nor does sufficient reason appear why it should be so regarded. The interest of New Hampshire was only casual. Leon Clapper was not a resident there. He was not continuously employed there. So far as appears, he had no dependent there. It is difficult to see how the State's interest would be subserved, under such circumstances, by burdening its courts with this litigation.

      23

      Sixth. The administratrix urges that the Company had in fact accepted the provision of the New Hampshire Compensation Act, which reserves to the employee the right to elect to sue for damages as at common law. It was upon this ground, primarily, that the Circuit Court of Appeals based, upon the rehearing, the affirmance of the judgment of the District Court. The circumstances under which the acceptance of the New Hampshire Act was filed show that the Company did not intend thereby to abandon its rights under the Vermont law in respect to Leon Clapper or other employees similarly situated. It had had occasion to hire in New Hampshire residents of that State for employment there in connection with the operation of its lines in that State. In case of injury of such employees, failure to accept the New Hampshire Act would have made the petitioner liable to an action for negligence in which it would have been denied the defenses of assumption of risk and injury by a fellow servant. Jutras v. Amoskeag Mfg. Co., 84 N.H. 171, 173; 147 Atl. 753; Levesque v. American Box & Lumber Co., 84 N.H. 543; 153 Atl. 10. Its acceptance is to be construed as referable only to such New Hampshire employees, [163] and not as bringing under the New Hampshire Act employees not otherwise subject to it.

      24

      We are of opinion that the rights as between the Company and Leon Clapper or his representative are to be determined according to the Vermont Act. The judgment of the Circuit Court of Appeals must accordingly be reversed. We have no occasion to consider whether if the injured employee had been a resident of New Hampshire, or had been continuously employed there, or had left dependents there, recovery might validly have been permitted under New Hampshire law.

      25

      Reversed.

      26
      MR. JUSTICE CARDOZO took no part in the consideration or decision of this case.
      27
      MR. JUSTICE STONE, concurring.
      28

      I agree that in the circumstances of the present case, the courts of New Hampshire, in giving effect to the public policy of that state, would be at liberty to apply the Vermont statute and thus, by comity, make it the applicable law of New Hampshire. In the absence of any controlling decision of the New Hampshire courts, I assume, as does the opinion of the Court, that they would do so and that what they would do we should do. Hence, it seems unnecessary to decide whether that result could be compelled, against the will of New Hampshire, by the superior force of the full faith and credit clause.

      29

      If decision of that question could not be avoided, I should hesitate to say that the Constitution projects the authority of the Vermont statute across state lines into New Hampshire, so that the New Hampshire courts, in fixing the liability of the employer for a tortious act committed within the state, are compelled to apply Vermont law instead of their own. The full faith and credit clause [164] has not hitherto been thought to do more than compel recognition, outside the state, of the operation and effect of its laws upon persons and events within it. Bonaparte v. Tax Court, 104 U.S. 592; Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55; Olmsted v. Olmsted, 216 U.S. 386; Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354; Hood v. McGehee, 237 U.S. 611; see Union Trust Co. v. Grosman, 245 U.S. 412, 415, 416; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 547.

      30

      It is true that in this case the status of employer and employe, terminable at will, was created by Vermont laws operating upon them while they were within that state. I assume that the fact of its creation there must be recognized elsewhere, whenever material. But I am not prepared to say that that status, voluntarily continued by employer and employe and given a locus in New Hampshire by their presence within the state, may not be regulated there according to New Hampshire law, or that the legal consequences of acts of the employer or employe there, which grow out of or affect the status in New Hampshire, must, by mandate of the Constitution, be either defined or controlled, in the New Hampshire courts, by the laws of Vermont rather than of New Hampshire.

      31

      The interest, which New Hampshire has, in exercising that control, derived from the presence of employer and employe within its borders, and the commission of the tortious act there, is at least as valid as that of Vermont, derived from the fact that the status is that of its citizens, and originated when they were in Vermont, before going to New Hampshire. I can find nothing in the history of the full faith and credit clause, or the decisions under it, which lends support to the view that it compels any state to subordinate its domestic policy, with respect to persons and their acts within its borders, to the laws of any other. On the contrary, I think it should be interpreted as leaving the courts of New Hampshire free, in [165] the circumstances now presented, either to apply or refuse to apply the law of Vermont, in accordance with their own interpretation of New Hampshire policy and law.

      32

      [1] "Right to Compensation Exclusive: The rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter, shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury. Employers who hire workmen within this state to work outside of the state, may agree with such workmen that the remedies under the provisions of this chapter shall be exclusive as regards injuries received outside this state by accident arising out of and in the course of such employment, and all contracts of hiring in this state shall be presumed to include such an agreement." Vt. Gen. Laws, [1917] c. 241, § 5774.

      33

      [2] Compare Home Ins. Co. v. Dick, 281 U.S. 397. No question is here raised of the character of that considered in Atchison, T. & S.F. Ry. Co. v. Sowers, 213 U.S. 55; and Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, of the validity of an attempt to create a statutory cause of action and confine it to the courts of the enacting State.

      34

      [3] See also Bothwell v. Buckbee, Mears Co., 275 U.S. 274, 279; Pennsylvania Fire Ins. Co. v. Gold Issue Mining & M. Co., 243 U.S. 93, 96; Western Life Indemnity Co. v. Rupp, 235 U.S. 261, 274, 275; Texas & New Orleans R. Co. v. Miller, 221 U.S. 408, 416; Louisville & Nashville R. Co. v. Melton, 218 U.S. 36, 50-52; El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U.S. 87, 92, 93; Smithsonian Institute v. St. John, 214 U.S. 19, 28; Allen v. Alleghany Co., 196 U.S. 458, 464, 465; Finney v. Guy, 189 U.S. 335, 340; Johnson v. New York Life Ins. Co., 187 U.S. 491, 496; Eastern Bldg. & Loan Assn. v. Ebaugh, 185 U.S. 114, 121; Banholzer v. New York Life Ins. Co., 178 U.S. 402, 405, 406; Lloyd v. Matthews, 155 U.S. 222, 227, 228; Glenn v. Garth, 147 U.S. 360, 367, 369. Compare Royal Arcanum v. Green, 237 U.S. 531, 544, 545; Converse v. Hamilton, 224 U.S. 243, 260, 261; Hancock National Bank v. Farnum, 176 U.S. 640; Crapo v. Kelley, 16 Wall. 610; Green v. Van Buskirk, 5 Wall. 307. See 2 Farrand, "Records of the Federal Convention," pp. 188, 447, 577. Congress, acting under the authority of Article IV, § 1, has provided for the authentication of "acts of the legislature of any state or territory or of any country subject to the jurisdiction of the United States." Act of May 26, 1790, c. 11; Act of March 27, 1804, c. 56, § 2; Rev. Stat. § 905, U.S. Code, Tit. 28, § 687.

      35

      [4] Compare Mills v. Duryee, 7 Cranch 481; Rev. Stat. §§ 905, 906. See also Minnesota v. Northern Securities Co., 194 U.S. 48, 72; Cooper v. Newell, 173 U.S. 555, 567.

      36

      [5] See also New York Life Ins. Co. v. Head, 234 U.S. 149, 161; Bonaparte v. Tax Court, 104 U.S. 592, 594. Compare Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55, 70; Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 360.

      37

      [6] For decisions construing state workmen's compensation acts as applicable, under appropriate circumstances, to injuries received outside the State, and upholding the validity of the acts as so construed, see Quong Ham Wah Co. v. Industrial Accident Comm., 184 Cal. 26, 36; 192 Pac. 1021; Industrial Commission v. Aetna Life Ins. Co., 64 Colo. 480, 490; 174 Pac. 589; Kennerson v. Thames Towboat Co., 89 Conn. 367, 375; 94 Atl. 372; Metropolitan Casualty Ins. Co. v. Huhn, 165 Ga. 667, 670; 142 S.E. 121; Beall Bros. Supply Co. v. Industrial Comm., 341 Ill. 193, 199; 173 N.E. 64; Pierce v. Bekins Van & Storage Co., 185 Iowa 1346, 1356; 172 N.W. 191; Saunder's Case, 126 Me. 144, 146; 136 Atl. 722; Pederzoli's Case, 269 Mass. 550, 553; 169 N.E. 427; Crane v. Leonard, Crossette & Riley, 214 Mich. 218, 231; 183 N.W. 204; State ex rel. Chambers v. District Court, 139 Minn. 205, 208, 209; 166 N.W. 185; State ex rel. Loney v. Industrial Accident Board, 87 Mont. 191, 195, 196; 286 Pac. 408; McGuire v. Phelan-Shirley Co., 111 Neb. 609, 611, 612; 196 N.W. 615; Rounsaville v. Central R. Co., 87 N.J. Law 371, 374; 94 Atl. 392; Post v. Burger & Gohlke, 216 N.Y. 544, 549; 111 N.E. 351; (compare Smith v. Heine Safety Boiler Co., 224 N.Y. 9, 11, 12; 119 N.E. 878; Cameron v. Ellis Construction Co., 252 N.Y. 394, 397; 169 N.E. 622); Grinnell v. Wilkinson, 39 R.I. 447, 462, 463; 98 Atl. 103; Smith v. Van Noy Interstate Co., 150 Tenn. 25, 36; 26 S.W. 104; Texas Employers' Ins. Assn. v. Volek, 44 S.W. (2d) 795, 798 (Tex. Civ. App.); Pickering v. Industrial Comm., 59 Utah 35, 38; 201 Pac. 1029; Gooding v. Ott, 77 W. Va. 487, 492, 493; 87 S.E. 862; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 114, 115; 170 N.W. 275; 171 N.W. 935. A contrary construction was reached in Altman v. North Dakota Workmen's Compensation Bureau, 50 N.D. 215; 195 N.W. 287; Sheehan Pipe Line Const. Co. v. State Industrial Comm., 151 Okla. 272, 273; 3 P. (2d) 199. Early decisions to like effect, in California, Illinois, and Massachusetts, have been superseded by statute. See North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1; 162 Pac. 93; Union Bridge & Construction Co. v. Industrial Comm., 287 Ill. 396, 398; 122 N.E. 609; Gould's Case, 215 Mass. 480; 102 N.E. 693. The provisions of the state statutes in respect to injuries occurring outside the state are summarized in Schneider, "The Law of Workmen's Compensation" (2d ed. 1932), vol. I, pp. 428-433.

      38

      [7] The statute does not undertake to prohibit acts beyond the borders of the State. Compare Allgeyer v. Louisiana, 165 U.S. 578; Nutting v. Massachusetts, 183 U.S. 553, 557. It does not attempt to forbid or regulate subsequent modification of the Vermont contract, or the formation of subsidiary contracts, or new agreements, by the parties in other States. Compare New York Life Ins. Co. v. Head, 234 U.S. 149; New York Life Ins. Co. v. Dodge, 246 U.S. 357. It affects only the rights and liabilities of parties who by their conduct within the State have subjected themselves to its operation. As to those parties, its effect is not to create a liability for acts without the State, compare Western Union Telegraph Co. v. Brown, 234 U.S. 542, but to give rise to a defense in consequence of acts within.

      39

      [8] See Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 535; 125 N.E. 675, denying recovery in a common law action for damages in the state of injury, on the ground that the employee's remedy was for compensation under the law of the state of employment. Compare In re Spencer Kellogg & Sons, 52 F. (2d) 129, 134, reversed on other grounds, 285 U.S. 502. Compensation was similarly denied in Hall v. Industrial Comm., 77 Colo. 338, 339; 235 Pac. 1073; Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 464; 121 Atl. 828; Proper v. Polley, 233 N.Y. App. Div. 621; 253 N.Y.S. 530. Compare Scott v. White Eagle Oil & Rfg. Co., 47 F. (2d) 615, 616. See also Darsch v. Thearle Diffield Fire Works Display Co., 77 Ind. App. 357; 133 N.E. 525. Compare Wiley v. Grand Trunk Ry. of Canada, 227 Fed. 127, 130; Mexican Nat. R. Co. v. Jackson, 118 Fed. 549, 552.

      40

      [9] Compare Saloshin v. Houle, 155 Atl. 47, an action of negligence by the widow of a New York resident killed in New Hampshire while working for a New York firm, brought against a third person residing in New Hampshire. The Supreme Court of New Hampshire held that the widow's right of action was barred by her acceptance, of compensation under the New York Act, and that the acceptance, in accordance with the provisions of that Act, operated as an assignment to the compensation insurer of her rights against the defendant.

      41

      [10] Attention is called to the following rejected compensation bills abolishing the right of election after accident: 1915 Session, House Bills No. 206, 302, Journal, pp. 720, 1021; 1917 Session, House Bills No. 319, 485, Journal, pp. 567, 568; 1919 Session, House Bill No. 134, Journal, p. 437; 1927 Session, House Bill No. 212, Journal, p. 752; 1929 Session, House Bill No. 292, Journal, p. 752. In 1923 the statute was amended to increase the compensation, N.H. Laws, 1923, c. 91; and in 1925, as amended, it was reenacted without change, N.H. Public Laws, c. 178.

  • 3 §1.1.3 Status—domicile

    • 3.1 Haumschild v. Continental Casualty Co.

      1
      7 Wis.2d 130 (1959)
      2
      HAUMSCHILD, Appellant,
      v.
      CONTINENTAL CASUALTY COMPANY and others, Respondents.
      3

      Supreme Court of Wisconsin.

      4
      March 2, 1959.
      5
      April 10, 1959.
      6

      [131] For the appellant there was a brief and oral argument by Thomas P. Maroney of Milwaukee.

      7

      For the respondents there was a brief by Shaw, Muskat & Paulsen, attorneys, and Jack R. Wiedabach of counsel, all of Milwaukee, and oral argument by Mr. Wiedabach.

      8
      CURRIE, J.
      9

      This appeal presents a conflict-of-laws problem with respect to interspousal liability for tort growing out of an automobile accident. Which law controls, that of the state of the forum, the state of the place of wrong, or the state of domicile? Wisconsin is both the state of the forum and of the domicile while California is the state where the alleged wrong was committed. Under Wisconsin law a wife may sue her husband in tort. Under California law she cannot. Peters v. Peters (1909), 156 Cal. 32, 103 Pac. 219; Cubbison v. Cubbison (1946), 73 Cal. App. (2d) 437, 166 Pac. (2d) 387; and Paulus v. Bauder (1951), 106 Cal. App. (2d) 589, 235 Pac. (2d) 422.

      10

      This court was first faced with this question in Buckeye v. Buckeye (1931), 203 Wis. 248, 234 N. W. 342. In that case Wisconsin was the state of the forum and domicile, while Illinois was the state of the place of wrong. It was there held that the law governing the creation and extent of tort liability is that of the place where the tort was committed, citing Goodrich, Conflict of Laws (1st ed.), p. 188, sec. 92. From this premise it was further held that interspousal immunity from tort liability necessarily is governed [132] by the law of the place of injury. This principle of conflict of laws has been consistently applied in all subsequent interspousal actions in automobile accident cases[1] except the recent case of Bodenhagen v. Farmers Mut. Ins. Co. (1958), 5 Wis. (2d) 306, 92 N. W. (2d) 759, 95 N. W. (2d) 822, hereinafter discussed.

      11

      The principle enunciated in the Buckeye Case and followed in subsequent Wisconsin cases, that the law of the place of wrong controls as to whether one spouse is immune from suit in tort by the other, is the prevailing view in the majority of jurisdictions in this country. Anno. 22 A. L. R. (2d) 1248, 1251-1253, entitled, "Conflict of laws as to right of action between husband and wife or parent and child." It is also the rule adopted in Restatement, Conflict of Laws, p. 457, sec. 378, and p. 470, sec. 384 (2). However, criticism of the rule of the Buckeye Case, by legal writers, some of them recognized authorities in the field of conflict of laws, and recent decisions by the courts of California, New Jersey, and Pennsylvania, have caused us to re-examine the question afresh.

      12

      In 1942, Prof. Walter Wheeler Cook of the Northwestern University Law School faculty published his book entitled, "The Logical and Legal Bases of the Conflict of Laws." It was his conclusion that the law of the domicile, and not the place of wrong, should be applied in determining whether [133] a wife had capacity to sue her husband in tort. Pages 248 to 250 and 345 to 346 of text. Also, in 1942, Max Rheinstein in an article in 41 Michigan Law Review, 83, 97, advocated that the law of domicile should be applied in conflict-of-laws situations to determine whether there is an immunity for tort grounded on family relationship. Ernst Rabel, in his "The Conflict of Laws: A Comparative Study" (1945), pp. 322, 323, pointed out that in the civil-law countries of western Europe prohibitions, which exclude lawsuits in tort between husband and wife, are considered part of family law and, therefore, the law of the domicile governs and not the law of the place of wrong.

      13

      The most-comprehensive treatment of the problem that we have discovered is the excellent 30-page article in 15 University of Pittsburgh Law Review, 397, entitled, "Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and Reason versus the Restatement," by Alan W. Ford, published in 1954. The article contains a careful analysis of the American cases on the subject commencing with our own Buckeye Case. The author's conclusion is stated as follows (p. 423):

      14

      "The lex fori and the lex loci delicti rules have already been criticized as inadequate. Between them, these two rules encompass all of the American cases. To find a more-desirable alternative we must, therefore, go beyond those cases. The foreign experience, briefly discussed above, is a useful starting point. As that experience suggests, there is some logic in separating questions of status and tort, in determining the incidents of the marital relationship by the family law, and the problems of tort by the law of torts. If a conflicts problem is involved, there is no reason why both questions should be determined by the law of torts. Instead, the two questions should remain separate, and problems of status or capacity could be referred, by an appropriate conflicts rule, to the law of the place of the domicile."

      15

      [134] Ford, in his article, cited four cases of interspousal immunity in which American courts have refused to apply the law of the place of wrong to an automobile accident situation but instead applied their own law of the forum: Poling v. Poling (1935), 116 W. Va. 187, 179 S. E. 604; Mertz v. Mertz (1936), 271 N. Y. 466, 3 N. E. (2d) 597, 108 A. L. R. 1120; Kircher v. Kircher (1939), 288 Mich. 669, 286 N. W. 120; and Kyle v. Kyle (1941), 210 Minn. 204, 297 N. W. 744. In all four cases one spouse sued the other in the state of domicile where there existed the immunity from suit in tort in a situation where the accident had occurred in a state which had abolished the immunity. The decisions were based on the ground that the public policy of the forum state forbade one spouse suing the other in tort.[2] The holdings in these four cases are highly significant because they are inconsistent in result with the theory that the injured spouse possessed a vested right in the cause of action which had accrued in the state where the alleged negligence occurred. Furthermore, these cases are authority for the principle that public policy may be a controlling factor to be considered by the court of the forum state in determining which law it will apply in resolving a conflict-of-laws problem. This factor of public policy is also acknowledged in Restatement, Conflict of Laws, pp. 9, 10, sec. 5, comment b.

      16

      The first case to break the ice and flatly hold that the law of domicile should be applied in determining whether there existed an immunity from suit for tort based upon family relationship is Emery v. Emery (1955), 45 Cal. (2d) [135] 421, 289 Pac. (2d) 218. In that case two unemancipated minor sisters sued their unemancipated minor brother and their father to recover for injuries sustained in an automobile accident that occurred in the state of Idaho, the complaint alleging wilful misconduct in order to come within the provisions of the Idaho "guest" statute. All parties were domiciled in California. The opinion by Mr. Justice TRAYNOR recognized that the California court, in passing on the question of whether an unemancipated minor child may sue the parent or an unemancipated brother, had a choice to apply the law of the place of wrong, of the forum, or of the domicile. It was held that the immunity issue was not a question of tort but one of capacity to sue and be sued, and rejected the law of the place of injury as "both fortuitous and irrelevant." In deciding whether to apply the law of the forum, or the law of the domicile, the opinion stated this conclusion (45 Cal. (2d) 428, 289 Pac. (2d) 222):

      17

      "Although tort actions between members of the same family will ordinarily be brought in the state of the family domicile, the courts of another state will in some cases be a more convenient forum, and thus the question arises whether the choice-of-law rule should be expressed in terms of the law of the forum or that of the domicile. We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile. That state has the primary responsibility for establishing and regulating the incidents of the family relationship and it is the only state in which the parties can, by participation in the legislative processes, effect a change in those incidents. Moreover, it is undesirable that the rights, duties, disabilities, and immunities conferred or imposed by the family relationship should constantly change as members of the family cross state boundaries during temporary absences from their home."

      18

      Since the decision in Emery v. Emery, supra, two other courts have held that, when a court is confronted with a [136] conflict-of-laws problem in order to resolve an issue of whether there is an immunity from suit for tort based upon a family relationship, the law to be applied is that of the domicile state. Koplik v. C. P. Trucking Corp. (1958), 27 N. J. 1, 141 Atl. (2d) 34; and Pittman v. Deiter (1957), 10 Pa. D. & C. (2d) 360. The conclusion reached by the New Jersey supreme court in the Koplik Case, after first having rejected the law of the place of injury as applicable to the immunity question, is stated succinctly as follows (27 N. J. 11, 141 Atl. (2d) 40):

      19

      "As a final word on the subject, we hold the view that even where an actual conflict-of-laws problem is directly presented, it is sensible and logical to have disabilities to sue and immunities from suit arising from the family relationship determined by reference to the law of the state of the family domicile when the suit is brought in that state. Otherwise, the lex loci will be permitted to interfere seriously with a status and a policy which the state of residence is primarily interested in maintaining." (Citing Emery v. Emery, supra, and Ford's article in 15 University of Pittsburgh Law Review.)

      20

      Among recent law-review articles and notes approving the holding of one or more of the afore-cited three cases, which have held that immunity from suit based on family relationship is a matter of family law rather than tort law and should be governed by the law of the domicile, are: 31 Temple Law Quarterly, 117, 4 Wayne Law Review, 79, and 33 Indiana Law Journal, 297. All were published in 1958.

      21

      The two reasons most often advanced for the common-law rule, that one spouse may not sue the other, are the ancient concept that husband and wife constitute in law but one person, and that to permit such suits will be to foment family discord and strife. The Married Women's Acts of the various states have effectively destroyed the "one person" [137] concept thereby leaving as the other remaining reason for the immunity the objective of preventing family discord. This is also the justification usually advanced for denying an unemancipated child the capacity to sue a parent, brother, or sister.[3] Clearly this policy reason for denying the capacity to sue more properly lies within the sphere of family law, where domicile usually controls the law to be applied, than it does tort law, where the place of injury generally determines the substantive law which will govern. In making a choice between the law of the domicile and the law of the forum, in those situations where the action is not brought in the state of the domicile, the afore-quoted persuasive arguments advanced by the California and New Jersey courts in Emery v. Emery, supra, and Koplik v. C. P. Trucking Corp., supra, in favor of applying the law of domicile to decide any issue of incapacity to sue based upon family relationship, seem unanswerable.

      22

      We are convinced that, from both the standpoint of public policy and logic, the proper solution of the conflict-of-laws problem, in cases similar to the instant action, is to hold that the law of the domicile is the one that ought to be applied in determining any issue of incapacity to sue based upon family relationship.

      23

      However, in order to adopt such a conflict-of-laws rule it will be necessary to overrule at least six prior decisions of this court, and to partially overrule two others. If it ever is proper for a court to depart from stare decisis, we scarcely can perceive of a more-justifiable situation in which to do so. In the first place, the rule being discarded is one lying [138] in the field of conflict of laws as applied to torts so that there can hardly have been any action taken by the parties in reliance upon it. Secondly, strong reasons of public policy exist for supplanting such rule by a better one which does not unnecessarily discriminate against the citizens of our own state.

      24

      The most-compelling argument against taking such step is that it departs from the rule of the Restatement, and disturbs the sought-after ideal of establishing some uniformity in the conflict-of-laws field. However, as well appears from the cases hereinbefore cited, there is a clearly discernible trend away from the rule of the Restatement in so far as it requires that the law of the place of wrong is to be applied in determining questions of incapacity to sue based on family status. Furthermore, it must be recognized that, in the field of the conflict of laws, absolutes should not be made the goal at the sacrifice of progress in furtherance of sound public policy. The American Law Institute is now engaged in redrafting a revised Restatement of Conflict of Laws. In such work of revision the question of whether the law of the domicile, rather than the law of the place of wrong, should be applied, in resolving an issue of interfamily immunity from suit in tort, will undoubtedly receive consideration.

      25

      After most careful deliberation, it is our considered judgment that this court should adopt the rule that, whenever the courts of this state are confronted with a conflict-of-laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be applied is that of the state of domicile. We, therefore, expressly overrule the cases of Buckeye v. Buckeye, supra; Forbes v. Forbes (1938), 226 Wis. 477, 277 N. W. 112; Bourestom v. Bourestom (1939), 231 Wis. 666, 285 N. W. 426; Garlin v. Garlin (1951), 260 Wis. 187, 50 N. W. (2d) 373; [139] Scholle v. Home Mut. Casualty Co. (1956), 273 Wis. 387, 78 N. W. (2d) 902; and Hansen v. Hansen (1956), 274 Wis. 262, 80 N. W. (2d) 230. We do not overrule the result in the cases of Nelson v. American Employers' Ins. Co. (1951), 258 Wis. 252, 45 N. W. (2d) 681, and 22 A. L. R. (2d) 1244, and Jaeger v. Jaeger (1952), 262 Wis. 14, 53 N. W. (2d) 740, but we disapprove of the holding therein that the law of place of injury controlled the issue of interspousal immunity.

      26

      It is interesting to note that, if the rule now adopted had been applied in the first six cited overruled automobile accident cases, the result in four of such cases would have been to hold that there was no interspousal immunity from suit, because the parties were domiciled in Wisconsin. Only in Forbes v. Forbes, supra, and Bourestom v. Bourestom, supra, would immunity from suit have been found to exist if the law of the domicile, as interpreted by this court, had been applied to such issue.

      27

      The Forbes Case is the only one of the eight where the place of wrong was Wisconsin. The parties were nonresidents domiciled in Illinois. For the reasons hereinbefore set forth, it is apparent that Illinois rather than Wisconsin was the state most concerned with the policy considerations of whether the plaintiff wife had capacity to sue her husband. Furthermore, the plaintiff in the Forbes Case would not have fared worse in Wisconsin than she would have in the state of domicile.

      28

      The Bourestom Case involved "forum shopping" which ought to be discouraged rather than tolerated. There Oklahoma was the state of injury, Minnesota the state of domicile, and Wisconsin the state of forum. The adoption of the new rule would not in theory close the doors of our courts to a nonresident spouse in such a situation instituting suit in Wisconsin. However, the defendant spouse might have [140] a good defense in bar if he pleaded, and proved, the true state of domicile, and took the proper steps to bring before the trial court the law of such state granting the immunity.

      29

      Perhaps a word of caution should be sounded to the effect that the instant decision should not be interpreted as a rejection by this court of the general rule that ordinarily the substantive rights of parties to an action in tort are to be determined in the light of the law of the place of wrong. This decision merely holds that incapacity to sue because of marital status presents a question of family law rather than tort law.

      30

      Earlier in this opinion we made a brief reference to our recent decision in Bodenhagen v. Farmers Mut. Ins. Co. In that case a wife domiciled in Wisconsin instituted suit against the insurer of her husband's automobile to recover for injuries sustained in an automobile accident occurring in Illinois as a result of the alleged negligence of the husband. We first looked to Illinois law to determine whether a cause of action existed in favor of the plaintiff wife. The Illinois law was interpreted by us as holding that its interspousal immunity against suit in tort barred only the remedy and not the cause of action, and, therefore, Wisconsin, as the forum state, would not apply such law. A motion for rehearing was filed subsequent to our original decision and the brief filed in support thereof caused this court to grant a rehearing. The reason for so doing was that we entertained grave doubt as to whether we had reached the right conclusion in holding that under Illinois law the interspousal immunity to suit in tort was procedural and not substantive. Because of the result reached in the instant appeal we now find it unnecessary to pass on such last-mentioned point. In an opinion this day handed down in such rehearing in the Bodenhagen Case we have affirmed the original result, but have grounded the same upon the principle [141] herein adopted, i.e., that the law of domicile controls the issue of interspousal immunity.

      31

      The concurring opinion by Mr. Justice FAIRCHILD protests that we should not adopt the conflict-of-laws rule, that interspousal immunity to suit in tort should be determined by the law of the domicile, because this was not urged in the briefs or arguments of counsel. However, appellant's brief did cite and summarize Emery v. Emery, supra, and on the oral argument appellant's counsel also cited Koplik v. C. P. Trucking Corp., supra, in which two cases such rule was adopted by the California and New Jersey courts. While the appellant's counsel did not request that we overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin cases dealing with this particular conflict-of-laws problem, he did specifically seek to have this court apply California's conflict-of-laws principle, that the law of the domicile is determinative of interspousal capacity to sue, to this particular case. However, to do so would violate the well-recognized principle of conflict of laws that, where the substantive law of another state is applied, there necessarily must be excluded such foreign state's law of conflict of laws. Restatement, Conflict of Laws, p. 11, sec. 7 (b); 11 Am. Jur., Conflict of Laws, p. 296, sec. 3; 15 C. J. S., Conflict of Laws, p. 872, sec. 7; Griswold, Renvoi Revisited, 51 Harvard Law Review, 1165, 1170, 1173;[4] and note in 18 George Washington Law Review, 559.

      32

      The reason why the authorities on conflict of laws almost universally reject the renvoi doctrine (permitting a court [142] of the forum state to apply the conflict-of-laws principle of a foreign state) is that it is likely to result in the court pursuing a course equivalent to a never-ending circle. For example, in the instant case, if the Buckeye v. Buckeye line of Wisconsin cases is to be followed, the Wisconsin court first looks to the law of California to see whether a wife can sue her husband in tort. California substantive law holds that she cannot. However, California has adopted a conflict-of-laws principle that holds that the law of the domicile determines such question. Applying such principle the court is referred back to Wisconsin law because Wisconsin is the state of domicile. Again the court applies Wisconsin law and, under the prior holdings of the Buckeye v. Buckeye line of authorities, would have to again refer to California law because such line of cases does not recognize that the law of domicile has anything to do with interspousal immunity, but holds that the law of the state of injury controls.

      33

      Wisconsin certainly should not adopt the much-criticized renvoi principle in order not to overrule the Buckeye v. Buckeye line of cases, and still permit the plaintiff to recover. Such a result we believe would contribute far more to produce chaos in the field of conflict of laws than to overrule the Buckeye v. Buckeye line of cases and adopt a principle the soundness of which has been commended by so many reputable authorities.

      34

      By the Court.—Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.

      35
      FAIRCHILD, J. (concurring).
      36

      I concur in the reversal of the judgment, but do not find it necessary to reexamine settled Wisconsin law in order to do so. A fundamental change in the law of Wisconsin such as the one announced by the majority in this case, which will importantly affect many people, should be made, if at all, in [143] a case where the question is necessarily presented. Both parties assumed that their case would be decided under the principle which is being overturned by the majority, and accordingly, we have not had the benefit of brief or argument upon the validity of the principle.

      37

      1. Solution of this case without overruling previous decisions. Plaintiff wife alleges a personal injury tort cause of action arising in California against defendant husband. Defendant husband pleads that she has no cause of action because she was his wife. It has been the rule in Wisconsin that the existence or nonexistence of immunity because of family relationship is substantive and not merely procedural, and is to be determined by the law of the locus state. The law of California is that the existence or nonexistence of immunity is a substantive matter, but that it is an element of the law of status, not of tort. The tort law of California is no more concerned with immunity than is Wisconsin's. Thus it makes no difference under the facts of this case whether we look directly to the law of Wisconsin to determine that immunity is not available as a defense or look to the law of Wisconsin only because California, having no general tort principle as to immunity, classifies immunity as a matter of status.

      38

      2. Policy questions requiring full consideration. Under the principle announced by the majority that the existence or nonexistence of immunity is a matter of status, our courts must henceforth recognize immunity as a defense where the alleged tort occurred in Wisconsin, but the parties are married and are domiciled in an immunity state. This would mean that such an act is or is not a remedial wrong depending upon the state where the parties happen to be domiciled.

      39

      The determination of domicile is not always easy, yet the courts will henceforth be required to determine it in many cases where it has henceforth been considered immaterial. [144] A good many married couples who may have domicile in other states are in Wisconsin for extended periods. Some, for example, are students at colleges and universities, some stationed here for military duty, some temporarily assigned here by employers, and some vacationing. Under the rule abandoned by the majority, a tortious act done in Wisconsin by a nonresident and injuring his spouse gave rise to the same civil liability as if done by a permanent resident.

      40

      The problem involved apparently has its principal impact because of injuries sustained in automobile accidents where members of a family travel together across state lines. Under the new rule Wisconsin courts will not countenance the defense of immunity for a Wisconsin husband when sued by his wife for an injury occurring in an immunity state. I concede there is some merit to the logic relied upon and that there may be some practical benefit to Wisconsin people. It is to be remembered, however, that under the law of many states a wife will have no cause of action for simple negligence of her husband because she will be a gratuitous guest. The fact that she and her husband are domiciled in Wisconsin and that they are on a family trip which began in Wisconsin will not exempt her from that principle of tort law. Thus the purely practical benefit to Wisconsin people which might appear at first blush to arise from the new rule will be limited.

      41

      If we deem it necessary and proper at this stage to reject a well-settled rule of law, should we limit ourselves to all the implications of the rule that the availability of the defense of immunity is to be governed by the law of domicile ? If we have a free choice of what the law is to be henceforth might not the public policy of Wisconsin be better served by some other alternative ? One possible alternative is that the availability of the defense of family immunity will be determined by the law of the forum. Actually this is [145] the result reached in a good many of the decisions, although different reasons are given. Admittedly, the proposition that family immunity is substantive and destroys or prevents the existence of a cause of action can be supported by neater logic than a proposition that it is only a denial of a remedy in the courts of a particular state, but these arguments are metaphysical and might well be re-examined if greater justice would be accomplished as a practical matter by a change in thinking.

      42

      Another possible alternative would be that the forum state when faced with the question of immunity choose the law of whichever state (locus or domicile) conforms more closely to its own. The party adversely affected by such a rule can be said to have subjected himself to the law of the domicile state by choosing to live in it or to the law of the locus state by choosing to travel in it. Our legislature has set up a similar rule for a choice of law with respect to the mode of execution of a will outside of Wisconsin. Sec. 238.07, Stats.

      43

      In summary, I would dispose of the present case upon the theory that California law governs the existence of the alleged cause of action and that in California the immunity question cannot be decided by resort to the law of torts but rather the law of status. I would leave to a later case the consideration of whether the Wisconsin rule of choice of law as to the defense of family immunity should remain as heretofore or, if it is to be changed, which rule will be best.

      44
      I am authorized to state that Mr. Justice BROWN concurs in this opinion.
      45

      [1] The case of Jaeger v. Jaeger (1952), 262 Wis. 14, 53 N. W. (2d) 740, sometimes has been mistakenly interpreted as holding that the law of the domicile applied. However, as explained in Hansen v. Hansen (1956), 274 Wis. 262, 264, 80 N. W. (2d) 230, the law of Arizona, the place of wrong, was actually applied, but because the Arizona Married Women's Act was similar to that of Wisconsin and the Arizona courts had not construed the same with reference to tort liability, we presumed the Arizona judicial interpretation of such act would be the same as that of Wisconsin. The discussion in the Jaeger Case with reference to the law of domicile was confined to the community-property issue and must be so interpreted.

      46

      [2] Conversely, after New York had abolished the immunity, it refused to hold that it offended the public policy of the forum state to apply the law of the state of wrong and deny recovery where the state in which the accident occurred still preserved the immunity. Coster v. Coster (1943), 289 N. Y. 438, 46 N. E. (2d) 509, 146 A. L. R. 702, rehearing denied, 290 N. Y. 662, 49 N. E. (2d) 621.

      47

      [3] Rather persuasive arguments were advanced before this court in the recent case of Schwenkhoff v. Farmers Mut. Automobile Ins. Co. (1959), 6 Wis. (2d) 44, 93 N. W. (2d) 867, that other policy considerations require that such immunity be abolished. However, in the opinion it was pointed out that the 1957 legislature had rejected a bill which would have abolished the immunity, and that the problem was one for the legislature rather than the court.

      48

      [4] While Griswold in such article written in 1938 himself advocates the application of the renvoi doctrine in a case like the instant one, he concedes that the overwhelming weight of authority is contra. Cook, in his "The Logical and Legal Bases of the Conflict of Laws," pp. 248-250, expressly rejects Griswold's proposed solution and recommends instead the adoption of the conflict-of-laws principle that the law of the domicile should be applied in the first instance to a question of interspousal immunity to suit in tort.

  • 4 §1.1.4 Escape devices (characterization; public policy; procedure; renvoi)

    • 4.1 Kilberg v. Northeast Airlines

      1
      9 N.Y.2d 34 (1961)
      2
      Jack Kilberg, as Administrator of The Estate of Edward J. Kilberg, Deceased, Appellant,
      v.
      Northeast Airlines, Inc., Respondent.
      3

      Court of Appeals of the State of New York.

      4
      Argued October 12, 1960.
      5
      Decided January 12, 1961.
      6

      Lee S. Kreindler, Leonard J. Fassler and Jay R. Handwerger for appellant.

      7

      William J. Junkerman, James B. McQuillan and Maurice L. Noyer for respondent.

      8

      Judges DYE, BURKE and FOSTER concur with Chief Judge DESMOND; Judge FULD concurs in result in a separate opinion; Judge FROESSEL concurs for affirmance in a separate opinion in which Judge VAN VOORHIS concurs.

      9
      [37] Chief Judge DESMOND.
      10

      Defendant is a common carrier of passengers by air. Plaintiff's intestate, a passenger on one of defendant's planes, was killed in August, 1958 when the airship crashed and burned at Nantucket, Massachusetts, in the course of a flight from a New York airport. The complaint pleads three causes of action but this appeal has to do, immediately, with the second count only. That part of the complaint has been dismissed for insufficiency by the Appellate Division which reversed Special Term's denial of defendant's motion to dismiss. Plaintiff appeals here from the dismissal. We shall have occasion farther on in this opinion to discuss the first cause of action in [38] which plaintiff sues under the Massachusetts wrongful death statute.

      11

      The disputed second cause of action alleges that plaintiff's intestate before boarding the plane at La Guardia Airport bought from defendant a ticket for transportation to Nantucket, that defendant by causing his death in the crash breached its contract to carry him safely and that as a result the passenger's estate and his dependent suffered substantial damages (stated as $150,000) for which his administrator sues and which include "loss of accumulations of prospective earnings of the deceased." There was in effect at the time of this disaster section 2 of chapter 229 of the General Statutes of Massachusetts which gave a cause of action against a common carrier for negligently causing a passenger's death but limited to not less than $2,000 or more than $15,000 the damages to be awarded therefor. Special Term, citing Dyke v. Erie Ry. Co. (45 N.Y. 113) and other authorities, held that plaintiff could sue in contract and that the law of New York, the place of contract, governed such a cause of action and not the law of Massachusetts, the place of the wrong. The Appellate Division, considering the Dyke decision inapplicable, took the position that the second cause of action, however labeled or phrased, is in tort for negligently causing death and as such is subject to the damage limitation of the Massachusetts wrongful death statute.

      12

      Plaintiff's submission as to this second count is that it sounds in contract and so is governed for all purposes by the law of New York, the place of contract. If the alleged contract breach had caused injuries not resulting in death, a New York-governed contract suit would, we will assume, be available (Dyke v. Erie Ry. Co., 45 N.Y. 113, 117, supra; Busch v. Interborough R. T. Co., 187 N.Y. 388; Fish v. Delaware, L. & W. R. R. Co., 211 N.Y. 374, app. dsmd. 245 U. S. 675; Restatement, Conflict of Laws, § 337). But it is law long settled that wrongful death actions, being unknown to the common law, derive from statutes only and that the statute which governs such an action is that of the place of the wrong (Whitford v. Panama R. R. Co., 23 N.Y. 465; Baldwin v. Powell, 294 N.Y. 130). Language found in the old case of Doedt v. Wiswall (15 How. Prac. 128, 141. affd. 15 How. Prac. 145) cannot be used to overrule so basic a rule. It follows, as the Appellate Division correctly held here, [39] that plaintiff as administrator has no separate right to sue this carrier in contract for causing his intestate's death (Webber v. Herkimer & Mohawk St. R. R. Co., 109 N.Y. 311), that the cause of action for injuries did not survive (Bernstein v. Queens County Jockey Club, 222 App. Div. 191, and cases cited therein), and that the second cause of action had to be dismissed.

      13

      That does not mean, however, that for this alleged wrong plaintiff cannot possibly recover more than the $15,000 maximum specified in the Massachusetts act. Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. The number of States limiting death case damages has become smaller over the years but there are still 14 of them (compare the list in Tiffany, Death by Wrongful Act [1st ed., 1893], p. xvii, with the data found in Martindale-Hubbell Law Digests, 1960 ed., Vol. IV). An air traveler from New York may in a flight of a few hours' duration pass through several of those commonwealths. His plane may meet with disaster in a State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane's catastrophic descent may begin in one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State's people against unfair and anachronistic treatment of the lawsuits which result from these disasters. There is available, we find, a way of accomplishing this conformably to our State's public policy and without doing violence to the accepted pattern of conflict of law rules.

      14

      Since both Massachusetts (General Statutes, ch. 229, §§ 1, 2, as in effect in Sept. 1958) and New York (Decedent Estate Law, § 130) authorize wrongful death suits against common carriers, the only controversy is as to amount of damages recoverable. New York's public policy prohibiting the imposition of limits on such damages is strong, clear and old. Since the Constitution of 1894, our basic law has been (N. Y. Const., art. I, § 16; N. Y. Const. [1894], art. I, § 18) that "The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation." Each later revision of the State Constitution has included this same prohibition [40] against limitations of death action damages. The reasons for its adoption are set forth in the proceedings of the 1894 Constitutional Convention (see discussion in Lincoln's Constitutional History of New York, Vol. III, pp. 57-65, and in Medinger v. Brooklyn Heights R. R. Co., 6 App. Div. 42 [1896]). New York's original wrongful death law (L. 1847, ch. 450), passed very soon after Lord Campbell's Act became law in Great Britain, had like the latter no restriction as to damages. The Legislature later imposed such limits but the convention which drew the 1894 Constitution rejected and forbade them. "The argument which evidently controlled the convention in its action consisted of the claim that the arbitrary limitation was absurd and unjust in measuring the pecuniary values of all lives to the next of kin by the same arbitrary standard" (Justice HATCH in Medinger opinion, supra, p. 46). The absurdity and injustice have become increasingly apparent in the six decades that have followed. For our courts to be limited by this damage ceiling (at least as to our own domiciliaries) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law (see Mertz v. Mertz, 271 N.Y. 466, 471; Shannon v. Irving Trust Co., 275 N.Y. 95, 102, 103). The Massachusetts cases likewise say that Massachusetts will enforce the lex loci delicti in wrongful death suits unless Massachusetts public policy forbids (see Higgins v. Central New England R. R. Co., 155 Mass. 176; Jackson v. Anthony, 282 Mass. 540, 545, 547).

      15

      An illustration of our readiness to reject such arbitrary limitations, on public policy grounds, is Conklin v. Canadian-Colonial Airways (266 N.Y. 244). In the Conklin suit plaintiff's intestate had purchased in Albany a plane ticket to Newark, New Jersey, which on its face limited to $5,000 defendant's liability for negligently causing a passenger's death. That limitation, just like the limitation here in question, was contrary to New York's public policy but valid in New Jersey which was the place of the plane disaster and of defendant's alleged wrongdoing. The public policy which allowed us to strike down the contractual limitation in Conklin's case has no less effect here. We will still require plaintiff to sue on the Massachusetts statute but we refuse on public policy grounds to enforce one of its provisions as to damages.

      16

      [41] Actually, we have in Wooden v. Western N. Y. & Pa. R. R. Co. (126 N.Y. 10, 16-17) a flat holding by our court that, in an action brought for causing a wrongful death in Pennsylvania, the New York courts would enforce our limitation of damages (as it then existed) although Pennsylvania had no such limitation. The reason, equally pertinent here, is that the "restriction pertains to the remedy rather than the right" (p. 16) and "does not strictly affect the rule of damages, but rather the extent of damages, and that extent, as limited or unlimited, does not enter into any definition of the right enforced or the cause of action permitted to be prosecuted." Loucks v. Standard Oil Co. (224 N.Y. 99) does not overrule Wooden (supra). Looking at the true holding of the Loucks case (supra) rather than picking out language from the opinion, we find that the court was merely deciding that the minimum set for recovery in the Massachusetts wrongful death statute did not make it a "penal statute" unenforcible here because contrary to our public policy (see Chief Judge CARDOZO'S reference to Loucks in Wikoff v. Hirschel, 258 N.Y. 28, 30).

      17

      As to conflict of law rules it is of course settled that the law of the forum is usually in control as to procedures including remedies (Franklin Sugar Refining Co. v. Lipowicz, 247 N.Y. 465, 468; Russell v. Societe Anonyme, 268 N.Y. 173, 181). However, as Professor Leflar says (Conflict of Laws, § 60), remedial and substantive "shade into each other constantly" and "the law of the forum normally determines for itself" whether a given question is one of substance or procedure. This is the conventional approach and was the one used in the only New York appellate decision on the subject (Murray v. New York, O. & W. R. R. Co., 242 App. Div. 374; see Collins v. American Auto. Ins. Co., 230 F.2d 416, 422; 32 N. Y. U. L. Rev. 786; Restatement, Conflict of Laws, § 584). As to whether the measure of damages should be treated as a procedural or a substantive matter in wrongful death cases, there is authority both ways (see, for instance, Walton School of Commerce v. Stroud, 248 Mich. 85) and no controlling New York decision except the statements quoted in an earlier paragraph of this opinion from the Wooden decision (126 N.Y. 10, 17, supra). It is open to us, therefore, particularly in view of our own strong public policy as to death action damages, to [42] treat the measure of damages in this case as being a procedural or remedial question controlled by our own State policies.

      18

      Some of the older Federal cases (see Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190; Slater v. Mexican Nat. R. R. Co., 194 U. S. 120, 126) gave defendants the benefits of limitations of damages found in the law of the place of wrong, regardless of where the actions were brought. Those cases, however, are not binding on us and do not bring into play the full faith and credit clause of the Constitution (see Wells v. Simonds Abrasive Co., 345 U. S. 514). We think that time has proven the wisdom and practicality of the Slater case dissent, which adopted the rule of Wooden v. Western N. Y. & Pa. R. R. Co. (supra).

      19

      From all of this it follows that while plaintiff's second or contract cause of action is demurrable, his first count declaring under the Massachusetts wrongful death action is not only sustainable but can be enforced, if the proof so justifies, without regard to the $15,000 limit. Plaintiff, therefore, may apply if he be so advised for leave to amend his first cause of action accordingly.

      20

      The judgment appealed from should be affirmed, with costs.

      21
      FULD, J. (concurring).
      22

      I, too, believe that the judgment dismissing the contract cause of action alleged in the second count of the complaint should be affirmed. However, having made that determination, I would go no further.

      23

      To expatiate on this, I would say that, while I agree that the second count — the only one before us — fails to state a cause of action, I find no warrant or justification for going beyond that single issue and considering, sua sponte, questions which underlie the complaint's first count alleging a cause of action for wrongful death under the Massachusetts statute. I do not mean to suggest that, in passing upon a case, a court is confined to the authorities furnished or the arguments advanced by counsel, for I deem it clear that, within certain limits, a court is free to reach a decision concerning the issue posed on any ground available. (See, e.g., Rentways, Inc., v. O'Neill Milk & Cream Co., 308 N.Y. 342, 349.) But, as I have already indicated, this does not entitle a court to discuss or decide an issue which not only is not argued by the parties, but actually is not raised or presented by the record.

      24

      [43] In this case, the court is called upon to decide only the sufficiency of the second cause of action, sounding in contract, and, quite obviously, whether the monetary limitation specified in the Massachusetts wrongful death statute may be disregarded has nothing whatsoever to do with that decision. Consequently, I feel constrained to limit my discussion to the validity of the contract cause of action. Decision on the question whether the maximum prescribed by the Massachusetts statute measures the amount which the plaintiff may recover on his first cause of action should await an appeal where that issue is presented and the parties have had an opportunity of briefing and arguing it.

      25

      As to the question before us, the sufficiency of the contract cause of action, one might well begin by noting that in Baker v. Bolton (1 Camp. 493), decided in 1808, Lord ELLENBOROUGH declared, by way of dictum, that, "In a civil court, the death of a human being could not be complained of as an injury". Learned authors attacked the rule thus announced as "obviously unjust" — it had as its consequence that "it was more profitable for the defendant to kill the plaintiff than to scratch him" (Prosser, Torts [2d ed., 1955], p. 710) — and as being "based upon a misreading of legal history". (3 Holdsworth, History of English Law [3d ed., 1923], p. 336; see, also, Salmond, Torts [12th ed., 1957], p. 625; Winfield, Death as Affecting Liability in Tort, 29 Col. L. Rev. 239, 252-253.) Nevertheless, harsh and anomalous though it was, the rule prevailed in England and in this country until the enactment of wrongful death statutes. (See 2 Harper and James, The Law of Torts [1956], pp. 1284-1285; Prosser, op. cit., pp. 709-710; Salmond, op. cit., pp. 623-625.)

      26

      Although it appears that in England, even before enactment in 1846 of the wrongful death statute known as Lord Campbell's Act, it had been held that, "where death is caused by the breach of a carrier's implied contract for safe carriage, the executor or administrator, although he could not sue in tort, [could] sue in contract, and recover damages suffered by the decedent's estate" (Tiffany, Death by Wrongful Act [2d ed., 1913], p. 21; see, also, Salmond, op. cit., p. 624), no such exception seems to have been recognized in the United States. In fact, in New York, this English exception for wrongful death arising out of a breach of contract of safe carriage was disavowed in this court as early as 1866 in the case of Green v. Hudson Riv. R. R. Co. [44] (2 Keyes 294; 2 Abb. Ct. App. 277, affg. 28 Barb. 9), where the complaint alleged "that the deceased became a passenger on a train from Albany to New York, under the usual engagement to be safely carried, and that by the gross carelessness and unskillfulness of the defendant's agents, a collision occurred, by means of which the said [passenger] was then and there killed" (28 Barb. 9, 14). Although the rule was acknowledged to be "harsh or narrow" (2 Keyes, at p. 303; 2 Abb. Ct. App., at p. 286), the court, nevertheless, denied recovery and concluded that "It is sufficient that the rule is settled so firmly that courts would travel beyond their province into the boundaries of legislation by any attempt to alter it, or to create, by their decision, causes of action not before known" (2 Keyes, at p. 295; 2 Abb. Ct. App., at p. 279; see also, Duncan v. St. Luke's Hosp., 113 App. Div. 68, affd. 192 N.Y. 580).

      27

      Thus, whatever may have been the English rule as to recovery for death arising out of a breach of contract of safe carriage, in New York, at least, there was no recovery at common law. The question arises, then, whether, following enactment of a wrongful death statute in this State, an action could be brought on contract for damages for death resulting from the breach of a carrier's agreement. The answer seems to be in the affirmative where the wrongful act causing death, as well as the agreement, occurred in this State. (See Doedt v. Wiswall, 15 How. Prac. 128, affd. 15 How. Prac. 145; cf. Greco v. Kresge Co., 277 N.Y. 26, 34, citing the Doedt case with approval; Roche v. St. John's Riverside Hosp., 96 Misc. 289, affd. 176 App. Div. 885; Keiper v. Anderson, 138 Minn. 392.)[1] This, though, does not resolve the problem presented by the case before us, where, although the agreement of safe carriage was made in New York, the wrongful act causing death occurred elsewhere.

      28

      If this were a matter of first impression, it might be effectively argued that, where "two or more communities are touched or [45] affected by a factual sequence", the "guide to the governing law" should be the jurisdiction having "the most significant contact or contacts" (Harper, Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen's Essays, 56 Yale L. J. 1155, 1161). And, since the contract of safe carriage was undertaken in New York and since this fact provides a more "significant contact" than the adventitious occurrence of the crash in Massachusetts, it might well be further urged, this State's wrongful death statute and not that of Massachusetts should apply.

      29

      Impressed though I am by the theoretical soundness of such a position, I am forced to the conclusion that it is foreclosed by our decisions. In Crowly v. Panama R. R. Co. (30 Barb. 99), which presents a fact pattern not unlike that in this case, the plaintiff's intestate had entered into a contract of safe carriage in New York and was killed as the result of acts of negligence of the carriers in Panama. Although Panama had no wrongful death statute at the time, New York did, and the plaintiff attempted to bring himself under that statute by arguing that "the contract was made, and the fare paid, in this state" (30 Barb., at p. 109). The court rejected this argument and dismissed the complaint. Not only has the Crowly decision been cited with approval by this court (e.g., Leonard v. Columbia Steam Nav. Co., 84 N.Y. 48, 53; McDonald v. Mallory, 77 N.Y. 546, 550; Whitford v. Panama R. R. Co., 23 N.Y. 465, 475), but we have categorically declared, and quite recently, that our wrongful death statute (Decedent Estate Law, § 130) "applies only to actions brought for damages for a wrong committed here causing the death of a person" and is to be given no extra-territorial effect in cases where injury and death occur outside of the State. (Baldwin v. Powell, 294 N.Y. 130, 132; see, also, Debevoise v. New York, L. E. & W. R. R. Co., 98 N.Y. 377, 379; McDonald v. Mallory, 77 N.Y. 546, 550, supra.)

      30

      Nor does section 116 of the Decedent Estate Law, upon which the plaintiff relies, give him a right to sue in contract for his intestate's allegedly wrongful death. That statute, simply declaring that "actions upon contract, may be maintained by and against executors, in all cases in which the same might have been maintained, by or against their respective testators", creates no new rights or liabilities. Since, as is apparent, plaintiff's [46] intestate could not have maintained the cause of action alleged in the second count, there was no right of action to survive his death.

      31

      In sum, then, limiting consideration to the only matter before us, it is my conclusion that no action ex contractu is available to the plaintiff under either the common law of New York or its wrongful death statute and that, therefore, the Appellate Division properly granted the defendant's motion to dismiss the second cause of action.

      32
      FROESSEL, J. (concurring).
      33

      We concur for affirmance of the judgment appealed from, dismissing plaintiff's second cause of action. We should reach no other question. In this case, defendant moved to dismiss the second cause of action for legal insufficiency, and nothing more; the subsequent notices of appeal were limited accordingly. Special Term denied the motion. The Appellate Division unanimously reversed and granted the motion, properly stating that it was "not concerned here with the causes of action for wrongful death and conscious pain and suffering". We think the court below was entirely correct.

      34

      Although the first cause of action is not before us, and it has not been argued or passed upon by the courts below, the majority of this court is now reaching out to consider that cause of action, without application of any kind with respect thereto on the part of anyone. It is exercising discretion usually exercised by the courts below, as to a cause of action not properly before us, and granting plaintiff leave to apply for amendment of that cause of action on the assumption that plaintiff's intestate was a resident of this State at the time of his death. This procedure is not only unprecedented, but extends beyond our province.

      35

      Moreover, the court is laying down a new rule of law whereby we disregard the Massachusetts limitation as to damages in a wrongful death action, thereby undermining the accepted pattern of conflict of law rules, in effect overruling numerous decisions of this court, and completely disregarding the overwhelming weight of authority in this country.

      36

      It has long been recognized as the law of this State that the right to maintain an action for wrongful death is dependent upon the existence of a statute creating such a right at the place where the injury resulting in death occurred (Whitford v. Panama R. R. Co., 23 N.Y. 465, 482; [47] Baldwin v. Powell, 294 N.Y. 130, 132; Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co., 272 App. Div. 246, 250, affd. 297 N.Y. 619). Equally well settled is the proposition that our own statute creating such a cause of action (Decedent Estate Law, § 130) is not to be given extra-territorial effect in cases where the wrongful death occurred outside of this State (Debevoise v. New York, L. E. & W. R. R. Co., 98 N.Y. 377; Baldwin v. Powell, supra; Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co., supra).

      37

      Plaintiff's right to maintain this action must therefore stem from the provisions of the Massachusetts statute (Mass. Gen. Stats., ch. 229, § 2). That statute, however, expressly limits the extent of the right given, and declares that the damages assessed thereunder shall not be more than $15,000. In effect, this is tantamount to providing that there shall be no cause of action for wrongful death beyond this amount. The majority, by giving extraterritorial effect to our prohibition against the limitation of recovery in such actions, would permit plaintiff to recover on the basis of the foreign law, and yet not be bound by its express limitation. Such action was vigorously condemned by the Supreme Court of the United States in Slater v. Mexican Nat. R. R. Co. (194 U. S. 120, 126) where Mr. Justice HOLMES, writing for the court, stated: "It seems to us unjust to allow a plaintiff to come here absolutely depending on the foreign law for the foundation of his case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose." This was reaffirmed in Western Union Tel. Co. v. Brown (234 U. S. 542, 547) and Black Diamond v. Stewart & Sons (336 U. S. 386, 395-396 [1948]).

      38

      No sound reason appears why our courts, in enforcing such a right at all, should not enforce it in its entirety. This court has no power to determine what the public policy of Massachusetts should be (Coster v. Coster, 289 N.Y. 438, 443), and we may not ignore foreign law affecting the substantive rights of the parties merely because such law differs from our own (id., at p. 442).

      39

      In Loucks v. Standard Oil Co. (224 N.Y. 99, 111), although it was suggested that our courts might refuse to enforce a right based upon a foreign statute "that outrages the public policy of New York", this court held that a Massachusetts act, very similar to the one with which we are now confronted, must be [48] enforced — despite the fact that we "cannot give them the same judgment that our law would give if the wrong had been done here" (224 N. Y., at pp. 111-112). Thus Judge CARDOZO in his opinion clearly indicated that the maximum damages would be controlled by the Massachusetts statute.

      40

      In Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co. (272 App. Div. 246, 250, affd. 297 N.Y. 619, supra), where our court refused to apply New York law as to additional liability, it was held to be "well established that a cause of action for wrongful death and the extent of the damage recoverable is governed by the laws of the place where the injuries causing death were inflicted" (emphasis supplied).

      41

      As long ago as Whitford v. Panama R. R. Co. (23 N.Y. 465, 481-482, supra) this court adopted as "eminently sound and conclusive" the discussion of the precise question now before us by Mr. Justice WOODRUFF in Whitford v. Panama R. R. Co. (3 Bosw. 67, 83) where it was stated (23 N.Y. 482): "`Let it be supposed that New Granada has by law * * * prescribed the cases in which the defendants should be liable for a death caused by the negligence of their servants, and the extent of that liability. It would not, we think, be gravely insisted, that they use their railroad under any other or greater responsibility than is so prescribed.'" (Emphasis supplied.)

      42

      This court has repeatedly affirmed decisions below, which held that, in a wrongful death action based on a foreign statute, interest shall not be allowed upon the amount of recovery from the time of death when the foreign statute contained no provision therefor (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28, affd. on opinion below 153 N.Y. 688; Wyman v. Pan Amer. Airways, 181 Misc. 963, affd. 267 App. Div. 947, affd. 293 N.Y. 878; Colliton v. United Shipyards, 256 App. Div. 923, affd. 281 N.Y. 582). The principle involved in these cases is the same as that involved in the case at bar. Since we refuse to allow interest (although our own statute requires it as part of the amount of recovery [Decedent Estate Law, § 132]) when no provision is made therefor in the law of the place of death, that same policy requires that no greater damages shall be allowed than are there provided. The "right to interest is inseparable from the right to damages" (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28, 32, supra).

      43

      [49] This court has also held, in an action for conversion, that the amount of damages recoverable must be governed by the law of the State where the loss was occasioned and not by our law (Hasbrouck v. New York Cent. & H. R. R. R. Co., 202 N.Y. 363, 377).

      44

      The views here expressed have also been recognized as the law of New York by the Federal courts sitting in this State. In Maynard v. Eastern Air Lines (178 F.2d 139 [2d Cir.]) the court submitted the issue of negligence to the jury with instructions that the recovery could not exceed $20,000, the limitation imposed by the terms of the Connecticut death statute, the State where the accident occurred. On appeal, the Court of Appeals for the Second Circuit affirmed, holding that according to the law of New York the Connecticut law with its limitation of damages was applicable.

      45

      In our opinion, these precedents are conclusive, and may not be disregarded without being overruled. The principle which they affirm is clearly the well-established law of this State.

      46

      Although we recognize that decisions from other jurisdictions are not controlling, it should be noted that the overwhelming weight of judicial authority in the United States is in accord with the view that the law of the place of injury governs not only the existence of the cause of action for wrongful death, but also the measure of damages (see cases collected in 15 A. L. R. 2d 765-766; 25 C. J. S., Death, § 28, p. 1101; Goodrich, Conflict of Laws, § 105; Restatement, Conflict of Laws, §§ 391, 412, 417; Leflar, Conflict of Laws, § 114). While Professor Leflar does note (§ 60, p. 109) that the procedural and substantive law "shade into each other constantly", he clearly states, in the same chapter, that "The size of the right is a part of the right" and that, therefore, the "measure of damages should be treated as a substantive rather than a procedural matter, and that the amount of the award should be determined by the rules of law of the place of the tort * * * rather than by the rules of the forum, as such. There is some authority the other way, treating measure of damages as procedure merely, on the idea that it does not constitute the right but only the remedy given in substitution for the right. This carries a nice theory to a point at which it conflicts with common understanding." (Leflar, Conflict of Laws, § 65, p. 118.)

      47

      [50] The notewriter in 15 A. L. R. 2d cites 25 jurisdictions in this country in support of that majority view, and but 4 for the proposition that the amount of damages is governed by the law of the forum. Two of the latter jurisdictions, Massachusetts (Higgins v. Central New England & W. R. R. Co., 155 Mass. 176) and New York (Wooden v. Western N. Y. & Pa. R. R. Co., 126 N.Y. 10), no longer adhere to that view and have joined the ranks of the majority (see Jackson v. Anthony, 282 Mass. 540, 546-547, for an express rejection of the Higgins decision; Loucks v. Standard Oil Co., 224 N.Y. 99, supra, and the other cases referred to earlier in this opinion for a rejection of the Wooden dicta. That dicta mistakenly relied on Dennick v. Central R. R. of N. J., 103 U. S. 11, which, in speaking of the remedy, merely decided that a New York administratrix may sue for a wrongful death in New Jersey; it in nowise held that damages might be treated as a procedural or remedial question).

      48

      Furthermore, questions relating to such defenses as contributory (comparative) negligence (Fitzpatrick v. International Ry. Co., 252 N.Y. 127), charitable immunity (Kaufman v. American Youth Hostels, 5 N Y 2d 1016), incapacity of wife to sue (Coster v. Coster, 289 N.Y. 438, supra) and the Statute of Limitations (Lipton v. Lockheed Aircraft Corp., 307 N.Y. 775) have all been regarded by this court as regulated by the law of the place of the injury rather than our own law, since they involve the substantial rights of the parties. In each of these cases we applied a foreign rule of law, although such rule was clearly contrary to the law of our own State, and we applied it whether it benefited the plaintiff or the defendant. In our opinion, the defense raised in the case at bar must be treated in the same manner — viz., by applying the law of Massachusetts, the place of death.

      49

      The majority would apply our own law of damages because the place of injury is entirely fortuitous. The same argument may be made with respect to each of the cases just referred to. We should not overrule well-established principles, nor "refuse to enforce a foreign right" at our pleasure, to suit our "individual notion of expediency or fairness" (Loucks v. Standard Oil Co., 224 N.Y. 99, 111, supra).

      50

      The position adopted by the majority may result in the situation where, in a single airplane crash in which numerous passengers from various States are killed, a different law will be [51] applied in each action resulting therefrom. The courts of each State, if they followed the majority view, would then apply their own law of damages to the case. As Judge CARDOZO pointed out in the Loucks case (supra), "The theory of the statute personal, a body of national law which the citizen carries about with him * * * is a theory which has yielded generally in this country to the principles of the territorial system and the doctrine of vested rights" (224 N. Y., supra, at p. 109). We should not attempt to revive it now.

      51

      The case of Conklin v. Canadian-Colonial Airways (266 N.Y. 244) has no applicability to the question before us. That case involved the validity of a contractual limitation upon a carrier's common-law liability. In the instant case, not only is the limitation imposed by statute rather than by contract, but, as we have seen, there was no underlying common-law liability.

      52

      Finally, we have grave doubts as to the constitutionality of the majority view in light of the decision of the Supreme Court of the United States in Hughes v. Fetter (341 U. S. 609) and section 1738 of title 28 of the United States Code, the implementing statute under the full faith and credit clause of the United States Constitution (art. IV, § 1), which provides that full faith and credit be accorded to the acts of the Legislature of any State.

      53

      Accordingly, the judgment appealed from dismissing plaintiff's second cause of action should be affirmed, with costs.

      54

      Judgment affirmed.

      55

      [1] In the Greco case (277 N.Y. 26, supra), this court unequivocally approved the Deodt case, stating significantly (p. 34): "Nor is an action any the less on contract because the elements of damage arise out of a trespass (Sullivan v. Dunham, 161 N.Y. 290), or an assault (Busch v. Interborough R. T. Co., supra) or other personal injury (Doedt v. Wiswall, 15 How. Pr. 128; affd., 15 How. Pr. 145; Gillespie v. Brooklyn Heights R. R. Co., 178 N.Y. 347). Violation of a duty owing to another is a wrongful act; breach of a contract involving violation of duty may be likewise a wrongful act."

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