Clark v. Clark

• Decision Date: 31 August 1966
• Citation: 222 A.2d 205,107 N.H. 351
• Parties: Lillian CLARK v. Albert CLARK.
• Court: New Hampshire Supreme Court

Page 205

222 A.2d 205

107 N.H. 351

Lillian CLARK v. Albert CLARK.

Supreme Court of New Hampshire.

Argued May 4, 1966.

Decided Aug. 31, 1966.

Upton, Sanders & Upton and William B. Cullimore, Concord, for plaintiff.

Hinkley & Donovan, Walter D. Hinkley, Lancaster, for defendant.

KENISON, Chief Justice.

The plaintiff is the wife of the defendant and in this action she seeks damages for personal injuries caused by her husband's alleged negligence in operating a motor vehicle in which she was riding with him. The parties now and for some time previous to the accident were domiciled in Lancaster, New Hampshire. On the evening of June 26, 1964 the parties left Lancaster for Littleton, New Hampshire, intending to return to their home later that evening. This trip took them into Lunenberg, Vermont where the accident occurred.

The plaintiff moved for a pre-trial order that the substantive law of New Hampshire governs the rights of the parties. All questions of law raised by the motion were reserved and transferred without ruling by Leahy, C.J.

Vermont a guest statute under which a host is liable to his automobile guest only if the injuries are caused by the 'gross and willful negligence' of the operator. 23 V.S.A. § 1491. This state has no guest statute and a guest may recover if the injuries are caused by the host's lack of ordinary care under the circumstances. Miltimore v. Milford Motor Company, 89 N.H. 272, 197 A. 330; Morin v. Letourneau, 102 N.H. 309, 156 A.2d 131. The question is whether the law of Vermont or the law of New Hampshire governs.

In years gone by the choice of law rule of such cases was thought to be settled and the governing law was invariably that of the place where the injury occurred. Restatement, Conflict of Laws, ss. 377-383 (1934); Gray v. Gray, 87 N.H. 82, 174 A. 508, 94 A.L.R. 1404. Leflar, The Law of Conflict of Laws, s. 110 (1959). That old rule is today almost completely discredited as an unvarying guide to choice of law decision in all tort cases due in no small part to the trenchant criticism of Cheatham, Cook, Currie, Lorenzen, Stumberg and Yntema. No conflict of laws authority in America today agrees that the old rule should be retained. See e.g. texts and articles by Cavers, Ehrenzweig, Hancock, Leflar, Morris, Reese, Rheinstein, Trautman, Traynor, von Mehren and Weintraub, to mention only a few. No American court which has felt free to re-examine the matter thoroughly in the last decade has chosen to retain the old rule. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254; Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365; Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1; Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796; Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408; Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218; Wilson v. Faull, 27 N.J. 105, 141 A.2d 768; Restatement (Second), Conflict of Laws, s. 379 (Tent. Draft No. 9). It is true that some courts, even in recent decisions, have retained it. Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288; Landers v. Landers, 153 Conn. 303, 216 A.2d 183 (1966). But their failure to reject it has resulted from an unwillingness to abandon established precedent before they were sure that a better rule was available, not to any belief that the old rule was a good one. The only virtue of the old rule, apart from the fact of its pre-existence, was that it was easy for a court to apply. It was easy to apply because it was a mechanical rule. It bore no relationship to any relevant consideration for choosing one law as against another in a torts-conflicts case.

This state has recognized the inadequacy of the old rule (Thompson v. Thompson, 105 N.H. 86, 193 A.2d 439, 96 A.L.R.2d 969) but has up to now broken away from it only to a limited extent. Johnson v. Johnson, 107 N.H. 30, 216 A.2d 781; 79 Harv.L.Rev. 1707 (1966); Dow v. Larrabee, 107 N.H. 70, 217 A.2d 506. Like all other states whose cases are cited in the previous paragraph, we have recognized that this mechanical rule ought to be discarded, but unlike some of the other states have been unwilling to abandon it completely until reasonably sure that a more satisfactory rule was available to take its place. Accordingly, we have used the place of wrong rule for want of a better one even though our dissatisfaction with it and with its application was evident. Dow v. Larrabee, 107 N.H. 70, 217 A.2d 506.

Some jurisdictions, experiencing the same dissatisfaction with the mechanical place of wrong rule, have substituted a straight characterization approach. This approach would reach different results according to whether a torts case could be technically re-characterized as a contracts case, Levy v. Daniel's U-Drive Auto Renting Co., 108 Conn. 333, 143 A. 163, 61 A.L.R. 846; as a family law case, Haumschild v. Continental Cas. Co., 7 Wis.2d 130, 95 N.W.2d 814; as one presenting a procedural question, Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926, or under some other key-number section heading which would enable a court to vary its choice of law subjectively. This court prefers not to rely on such a technique because it overlooks policy considerations that should underlie choice of law adjudication. See von Mehren & Trautman, The Law of Multistate Problems 78-79 (1965).

The relevant considerations in choice of law decision are fairly well known. Courts and writers have identified and cited them, or most of them, down through the years, though they have not often been separately analyzed and summarized. One of the first though analyses of them was in Cheatham and Reese, Choice of the Applicable Law, 52 Colum.L.Rev. 959 (1952). See Yntema, The Objectives of Private International Law, 35 Can.B.Rev. 721, 734 (1957). They have been expressly taken into account in the drafting of the Restatement (Second), Conflict of Laws (Tent.Draft No. 9) and specifically in s. 379, the basic tort section. Reese, Conflict of Laws and the Restatement Second, 28 Law and Cont.Probs. 679, 682 (1963). There is a difference of opinion as to the exact content of these considerations and the relative weight to be accorded different ones among them, but they are identified and knowable. We have concluded that choice of law decisions ought to be based directly upon these relevant considerations, rather than upon any mechanical rule or technique of ad hoc characterization derived indirectly from such considerations.

The relevant choice-influencing considerations can be summarized without great difficulty. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, Part III and particularly pp. 282-304 (1966). Obviously, some of them will be more relevant to some types of cases, less to other types. The process of apply-them to particular cases will not be a subjective one. It will be typical of the judicial process in nonconflicts cases.

One of the considerations is predictability of results. It basically relates to consensual transactions, in which it is important that parties be able to know in advance what law will govern a transaction so that they can plan it accordingly. Reliance upon a predictable choice of law protects the justifiable expectations of the parties. Also, it assures uniformity of decision regardless of forum, thus discouraging 'forum shopping.' Except for the evils of forum shopping, the predictability consideration does not have much to do with automobile accident cases. They are not planned.

A second consideration is the maintenance of reasonable orderliness and good relationship among the states in our federal system. State chauvinism and interstate retaliation are dangers to be avoided. Any choice of law that would unduly favor one state, the forum perhaps, or interfere with easy movement from state to state, would be questionable. Open disregard of another state's clear interests might have bad effects. In terms of interstate automobile trips and accident litigation growing out of them, no more is called for under this head than that a court apply the law of no state which does not have substantial connection with the total facts and with the particular issue being litigated.

Simplification of the judicial task is another important consideration. It underlies that practice by which a court applies its own procedural rules in suits on foreign facts. It may be easier also for a court to apply its own substantive law than another state's law, because it understands its own law better and therefore can do a better job of administering justice under it. Mechanical choice of law methods, such as that the law of the place of injury always governs, also make the judicial task easier. But simplification of the judicial task is not the whole end of law, and opposing considerations may outweigh it.

A fourth consideration is inherent in the obvious fact that every court is more concerned with the advancement of its own state's governmental interests than with those of other states. Governmental interest, however, is not necessarily synonymous with domestic law. A state often has no particularly strong policy in reference to local rules of law which happen through the vagaries of legislative or judicial law making to differ from a neighbor's view. Strong policy concerns can underlie local rules, and they sometimes do, but often they do not. In most private litigation the only real governmental interest that the forum has is in the fair and efficient administration of justice, which is usually true of automobile accident cases.

Finally, a fifth consideration, too often disguised, is the court's preference for what it regards as the sounder rule of law, as between the two competing ones. Professor Cavers has for years been pointing out that in choice of law cases courts have the opportunity to make, and do make, a choice between rules of law, as distinguished from the choice between jurisdictions that have...