WW Clyde & Co. v. Dyess, 2378.

• Citation: 126 F.2d 719
• Decision Date: 27 April 1942
• Docket Number: No. 2378.,2378.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: W. W. CLYDE & CO. v. DYESS.

126 F.2d 719 (1942)

W. W. CLYDE & CO. v. DYESS.

No. 2378.

Circuit Court of Appeals, Tenth Circuit.

February 26, 1942.

Rehearing Denied April 27, 1942.

Arthur E. Moreton and T. C. Hanson, both of Salt Lake City, Utah, for appellant.

Stewart M. Hanson, of Salt Lake City, Utah (D. N. Straup and Willard Hanson, both of Salt Lake City, Utah, on the brief), for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

Sada Dyess, a married woman, sued W. W. Clyde & Co. in the United States Court for Utah to recover damages for personal injuries. It was alleged that plaintiff and her husband were traveling by automobile eastward on a highway in Utah; that her husband was driving the automobile; that she was his guest and was occupying the rear seat; that a truck owned by defendant and operated by its agent was going westward on the same highway; that, due to the negligence of the defendant in the operation of the truck as the two vehicles were approaching each other, the automobile was forced off the highway and plaintiff suffered serious and permanent personal injuries. By answer, the defendant denied negligence in the operation of the truck; alleged negligence of the husband of plaintiff in the operation of the automobile, pleaded the law of Texas in respect to separate and community property of spouses; and pleaded that plaintiff and her husband were at the time of the accident engaged in a joint enterprise for themselves and their community property, that the negligence of the husband was imputable to plaintiff, and that she therefore could not recover.

The court submitted the case generally to the jury, and in addition certain special interrogatories were submitted. The jury found that the agent of defendant was negligent in the operation of the truck and that such negligence was a proximate cause of the accident; that the husband of plaintiff was negligent in the operation of the automobile and that such negligence was also a proximate cause of the accident; and that plaintiff was not negligent. A general verdict was returned for plaintiff, judgment was entered accordingly, and defendant appealed.

It is contended that the negligence of the husband in the operation of the automobile which was a proximate cause of the accident and resulting injury is imputable to plaintiff and precludes recovery on her part. Plaintiff and her husband are residents and citizens of Texas, and the law of that state is relied upon to sustain the contention. The community property system obtains there. Broadly stated, it is provided by statute that all property owned by either spouse at the time of marriage, that acquired afterwards by gift, devise, or descent, and the increase of lands thus acquired, shall constitute the separate property of such spouse; and that all property acquired by either during coverture, except that which is separate property of either, shall be deemed to be the common property of both. Revised Civil Statutes of Texas, arts. 4613, 4614, 4619, Vernon's Ann.Civ. St.Tex. arts. 4613, 4614, 4619. The right to recover damages for personal injuries is a property right in that state, and a chose in action for such injuries suffered by a married woman belongs to the community estate. Ezell v. Dodson, 60 Tex. 331; Texas Central Ry. Co. v. Burnett, 61 Tex. 638; Northern Texas Traction Co. v. Hill, Tex.Civ.App., 297 S.W. 778; Bostick v. Texas & P. Ry. Co., Tex.Civ. App., 81 S.W.2d 216. And recovery cannot be had in that state for personal injuries sustained there by a married woman if the negligence of her husband was a contributing cause, for the reason that such negligence on his part is imputed to her. Missouri Pac. Ry. Co. v. White, 80 Tex. 2025, 15 S.W. 808; Texas & Pac. Ry. Co. v. Rea, 27 Tex.Civ.App. 549, 65 S.W. 1115; Northern Texas Traction Co. v. Hill, supra; Bostick v. Texas & P. Ry. Co., supra; Dallas Ry. & Terminal Co. v. High, 129 Tex. 219, 103 S.W.2d 735.

But with rare exceptions matters relating to the right of action arising out of a tort which results in death, personal injury, or other wrong, are governed by the law of the place where the tort occurred. Nothern Pacific Railroad Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958; Slater v. Mexican National Railroad Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900; American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, 16 Ann.Cas. 1047; Cuba Railroad Co. v. Crosby, 222 U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274, 38 L.R.A., N.S., 40; Vancouver Steamship Co., Ltd., v. Rice, Administratrix, 288 U.S. 445, 53 S.Ct. 420, 77 L.Ed. 885; Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170; Hunter v. Derby Foods, Inc., 2 Cir., 110 F.2d 970, 133 A.L.R. 255. And ordinarily where a tort is committed in one state and recovery of damages is sought in another, the substantive rights of the parties are governed by the law of the former while questions of remedy or procedure are referable to the law of the latter. O'Neal v. Caffarello, 303 Ill. App. 574, 25 N.E.2d 534; Meyer v. Weimaster, 278 Mich. 370, 270 N.W. 715; Laughlin v. Michigan Motor Freight Lines, 276 Mich. 545, 268 N.W. 887; Sutton v. Bland, 166 Va. 132, 184 S.E. 231; Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Farfour v. Fahad, 214 N.C. 281, 199 S.E. 521.

This accident occurred in Utah and the suit was instituted there. The place of the wrong and that of the forum concurred. And the community property system does not obtain there. More than that, the material part of section 40-2-4, Revised Statutes of Utah 1933, provides in substance that the husband shall have no right of recovery for personal injuries to the wife, that the wife may recover for such injuries as though she were unmarried, and that the recovery shall include medical and other expenses paid or assumed by the husband. No case has been called to our attention in which the statute was construed. We are therefore obliged to proceed without direction or guidance by the supreme court of the state in respect to the meaning of the local statute. We think the statute, when fairly construed, embraces both substantive and remedial elements. It strips the husband of any right of recovery for personal injuries sustained by the wife arising out of the tort of a third person, and it vests in her the right to recover for such a wrong as though she were an unmarried woman. It places a married woman on equal footing with an unmarried woman in respect to redress for personal injuries growing out of a tort. It empowers a married woman to maintain in her own name a suit to recover for such injuries and it vests in her the recovery therefor to the same extent and for all purposes as though she were a single woman. Cf. Jacobson v. Fullerton, 181 Iowa 1195, 165 N.W. 358. And it fails to indicate any purpose to distinguish between residents and nonresidents of the state.

There is nothing in the law of comity among states or of public policy which requires Utah to give effect to the laws of Texas in derogation of its own laws in respect to the rights of a married woman, either substantive or remedial, for the recovery of damages for personal injuries growing out of a tort committed in that state. Subject only to review on any federal...