Hughes v. Fetter
| Citation | 257 Wis. 35,42 N.W.2d 452 |
| Parties | HUGHES, v. FETTER et al. |
| Decision Date | 02 May 1950 |
| Court | United States State Supreme Court of Wisconsin |
Francis H. Parson, Milwaukee, Samuel Goldenberg, Milwaukee, of counsel, for appellant.
Hannan, Johnson & Goldschmidt, Milwaukee, Herbert L. Wible, Milwaukee, of counsel, for respondent Farmers Mut. Auto. Ins. Co.
Frederick H. Prosser, gdn. ad litem, Milwaukee, for respondent Glenn C. Fetter, a minor.
The Wisconsin statute, section 331.03, which the learned trial judge ruled prevented the maintenance of the action and required a dismissal of the complaint does permit recovery for death by wrongful act. But it also contains the provision 'that such action shall be brought for a death caused in this state.' The question is now raised whether for a death in Illinois this action can be maintained in Wisconsin notwithstanding that provision in our statute.
The right to recover for death by wrongful act is purely statutory. The words of the statute, 'provided, that such action shall be brought for a death caused in this state' seem plain enough to bar cases not within its terms, and to exclude actions where the wrongful act resulting in death occurred in another state. This must be so, unless that provision is unconstitutional, or unless the rules of comity place an obligation upon the courts of this state to voluntarily try a case arising under the Illinois wrongful death statute.
First, with respect to the constitutionality of the provision: We agree with the learned trial judge that the enactment is not in contravention of the full faith and credit clause of the Federal Constitution, article 4, § 1, or of clause 1, section 2 of Article IV providing that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. It has been repeatedly declared to be the law that it was not intended by the provisions of the Federal Constitution referred to to give to the laws of one state any operation in other states except by permission, express or implied, by those states. Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357. The rule applies with full force to statutes giving a right of action for death by the wrongful act of another.
The policy of Wisconsin against the maintenance of such an action having been created positively in a statute, that policy must prevail. Chambers v. Baltimore & Ohio Railroad Co., 207 U.S. 142, 28 S.Ct. 34, 35, 52 L.Ed. 143. In the case of Dougherty v. American McKenna Process Co., 255 Ill. 369, 99 N.E. 619, 621, L.R.A. 1915F, 955 Ann.Cas. 1913D, 568, the Illinois court, in commenting on the Ohio decision, said:
The learned trial judge in the case at bar said that
Now as to the matter of comity: In this state the courts will generally enforce the law of the place where the injury occurred, unless to do so is contrary to the law, morals or policy of the state where the action is sought to be maintained. However, if the policy of the forum has been expressed positively in a statute, that policy must prevail. 'When the legislature speaks upon a subject upon which it has the constitutional power to legislate, public policy is what the statute * * * indicates.'
Harding v. American Glucose Co., 182 Ill. 551, 55 N.E. 577, 599, 64 L.R.A. 738, 74 Am.St.Rep. 189; People ex rel. v. Shedd, 241 Ill. 155, 89 N.E. 332; Zeigler v. Illinois Trust and Savings Bank, 245 Ill. 180, 91 N.E. 1041, 28 L.R.A., N.S., 1112, 19 Ann.Cas. 127; Miner on Conflict of Laws, section 6, page 10. By virtue of the doctrine of comity, rights acquired under statute enacted or judgment rendered in one state will be given force and effect in another, unless, as said, against policy or laws of the state, prejudicial to interests of its citizens or against good morals and natural justice; comity being a rule of practice, however, and not a rule of law. In re Chase, 195 N.C. 143, 141 S.E. 471, 473. The doctrine of comity results in recognition of a decree of a different state not entitled to full faith and credit. It is neigher a matter of absolute obligation nor of mere courtesy and good will, but is recognition which one state allows within its territory to legislative, executive or judicial acts of another, having due regard to duty and convenience and to rights of its own citizens. 11 Am.Jur., section 183, page 495; 15 Corpus Juris Secundum, page 245, Strawn Mercantile Co. v. First Nat. Bank, Tex., Tex. Civ.App., 279 S.W. 473, 474; Baker River & S. R. Co. v. Nichols, 51 Wash. 619, 99 P. 876, 877.
Plaintiff in support of his position here urges the doctrine that all legislation is prima facie territorial and does not operate beyond the jurisdiction in which it is enacted. He cites Bernard v. Jennings, 209 Wis. 116, 120, 244 N.W. 589. The distinction between the facts of that case and the instant one is obvious. The learned trial judge, because of the stress placed upon the matter of extraterritorial legislation thought it appropriate to point out that as to the Wisconsin statute there is no valid ground for asserting that the proviso in question is intended to have force in other states. It has force, however, whenever within its own boundaries claims are asserted. As to the Illinois statute, he said: 'In so far as its enforcement would operate to defeat the Wisconsin statutory provision it...
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