Babcock v. Jackson

• Decision Date: 02 July 1962
• Citation: 230 N.Y.S.2d 114,17 A.D.2d 694
• Parties: Georgia W. BABCOCK, Appellant, v. Mabel B. JACKSON, as Executrix of the Estate of William H. Jackson, deceased, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 114

230 N.Y.S.2d 114

17 A.D.2d 694

Georgia W. BABCOCK, Appellant, v. Mabel B. JACKSON, as Executrix of the Estate of William H Jackson, deceased, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Argued April 6, 1962.

Decided July 2, 1962.

Rossi, Digaetano and Dorsey, Rochester, John M. Regan, Rochester, of counsel, for appellant.

Strang, Wright, Combs, Wiser & Shaw, Rochester, Ellsworth R. VanGraafeiland, Rochester, of counsel, for respondent.

Easton & Wagner, Rochester, for Mabel B. Jackson, Executrix.

Before BASTOW, J. P., and GOLDMAN, HALPERN, McCLUSKY, and HENRY, JJ.

PER CURIAM.

Judgment and the order insofar as appealed from affirmed, without costs of this appeal to either party.

All concur, except HALPERN, J., who dissents in an Opinion and votes to reverse the judgment and order and to deny the motion to dismiss the complaint.

HALPERN, Justice (dissenting).

The plaintiff and the defendant's testator (hereinafter referred to as the defendant) were both residents of the City of Rochester, New York. The plaintiff and the defendant started from Rochester on a trip which took them through the Province of Ontario. The defendant was the owner and operator of the automobile used on the trip; the plaintiff was a passenger. While the automobile was being driven in Ontario on September 16, 1960, the car went out of control, left the highway, and collided with a stone wall. No collision with any other vehicle was involved. The plaintiff suffered serious personal injuries as a result of the accident.

Upon their return to New York State, the plaintiff instituted the present action against the defendant to recover for her injuries. The defendant moved to dismiss the complaint upon the ground that the Ontario guest statute barred a recovery. The Special Term granted the motion and judgment was accordingly entered unconditionally dismissing the complaint.

The Ontario statute (Ontario Highway Traffic Act, § 105, subsection 2; Rev.Stat. of Ontario [1960], ch. 172, § 105, subd. reads:

'(2). Notwithstanding the provisions of Section 1, the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of, any person being carried in, or upon or entering or getting onto, or alighting from such motor vehicle.'

If this case had arisen a decade ago, there would have been no question but that Ontario law governed the case. Under the choice-of-law rules then generally accepted, the law of the place of the accident governed and, once it appeared that the accident had occurred in Ontario, it would have been held automatically that the Ontario guest statute applied. But under the modern view now prevailing in many states and, in large measure, adopted in this state in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526, this result no longer necessarily follows. The courts have come to realize that, in many cases, even though the accident and the resulting injury occurred in a single state, other states may have 'significant contacts with the matter in dispute' and that such states may be justified in applying their own law and policy to the issues as to which they have 'the most significant contacts'. (Cf. Auten v. Auten, 308 N.Y. 155, 160, 124 N.E.2d 99, 102, 50 A.L.R.2d 246.) (The word 'state' will be used in this opinion for convenience as including both foreign countries and the states of this country.) There may be multi-state contracts even though the tort was physically committed in a single state. Thus, in a case like the present one, in which the relationship of guest and host was created by an arrangement made in New York between New York residents, New York clearly has a vital interest in the determination of the incidents of the relationship. This has long been recognized in the workmen's compensation cases in which the view that the law of the place of the injury was solely controlling was abandoned many years ago, and the legitimate interest of the state in which the employment relationship was created was given recognition. (Alaska Packers Ass'n v. Industrial Accidents Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Matter of Nashko v. Standard Water Proofing Co., 4 N.Y.2d 199, 201, 173 N.Y.S.2d 565, 567, 149 N.E.2d 859, 861; 2 Larson, Workmen's Compensation Law, sections 86 and 87.)

Under the modern view, in a common law tort action, the law of the state which has 'the most significant contacts with the matter in dispute' and which has the dominant interest in it is accepted as the governing law. This is the doctrine of 'the proper law of the tort' (Morris, The Proper Law of a Tort, 64 Harvard Law Review 881; Stumberg, 'The Place of the Wrong', Torts and the Conflict of Laws, 34 Washington Law Rev. 388). It represents, in effect, an extension to the law of torts of the 'center of gravity' theory adopted by the Court of Appeals in Auten v. Auten, supra, 308 N.Y. 155, 124 N.E.2d 99, and approved by the American Law Institute in the Restatement of Conflict of Laws 2d (§ 332), with respect to the law of contracts. (See Note on the Kilberg case, 46 Cornell L.Q. 637; Leflar in Annual Survey of American Law, 1961, p. 45.) '[T]he merit of [this] approach is that it gives to the place 'having the most interest in the problem' paramount control over the legal issues arising out of a particular factual context, thus allowing the forum to apply the policy of the jurisdiction 'most intimately concerned with the outcome of [the] particular litigation''. (Auten v. Auten, supra, p. 161, 124 N.E.2d p. 102.) There is even less reason in tort cases than there is in contract cases to sacrifice the legitimate policy interests of the state 'most intimately concerned' with the case to the abstract objectives of 'certainty and predictability', which concededly are more readily attainable by 'rigid general rules' (cf. Auten v. Auten, supra, at p. 161, 124 N.E.2d at p. 102).

In our case, there can be no doubt but that New York had the most significant contacts with the matter in controversy and the dominant interest in it. The plaintiff and the defendant were residents of this state; the arrangements for the trip were made in New York; their trip was initiated here and was expected to terminate here. The defendant's automobile was kept by him regularly in New York and was subject to New York's compulsory insurance law.

The question of whether a guest should be barred from recovering from his host for the host's negligence in the operation of his automobile is a question of policy to be decided by the appropriate legislative body. New York's policy is in favor of allowing a recovery by the gratuitous passenger. The New York Legislature has repeatedly refused to enact a statute denying or limiting the right of a guest to recover from his host (for the latest attempt, see Senate Introductory No. 3662, Pr. No. 3967, 1960 Session, which died in Committee). Ontario's policy, since 1935 (ch. 26, § 11, Statutes of 1935), has been contrary to that of New York, denying recovery to a gratuitous passenger even for gross or wanton negligence. The Ontario statute is sweeping in its terms. No other Province of Canada has such a sweeping statute and no state in this country has a guest statute in terms as broad as those of the Ontario statute. Indeed, it has been held in this country that a statute couched in such terms is unconstitutional (Stewart v. Houk, 127 Or. 589, 271 P. 998, 272 P. 893, 61 A.L.R. 1236; see Annotation 111 A.L.R. 1011).

The primary purpose of the Ontario statute was stated by an academic commentator, shortly after its enactment, as follows: 'Undoubtedly the object of the provision is to prevent the fraudulent assertion of claims by passengers, in collusion with the drivers, against insurance companies' (Survey of Canadian Legislation, 1 U. of Toronto L.J. 358, 366 [1935]). In the light of this purpose, it is apparent that the interest of Ontario in the enforcement of its legislative policy is limited to accidents involving Ontario residents. Ontario is concerned only with the adverse effect of guest-host recoveries upon Ontario insurance premiums. Ontario insurance premiums would not be affected by a recovery chargeable against an insurance policy issued in a foreign jurisdiction covering a foreign car. At any rate, the interest of Ontario in having its policy apply to non-residents traveling through Ontario, is a minimal one.

The interest of New York is obviously the dominant one as to this issue. New York has a strong interest in the application of its policy allowing a recovery by guest passengers, to an accident involving New York residents who were injured while traveling in an automobile registered and insured in New York, upon a trip originating and terminating in New York, under an arrangement made in New York. It would be against the strong public policy of New York to apply a foreign statute denying a guest the right to recover from his host to a case in which New York plainly had the dominant interest. As the Court of Appeals said in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d, at page 39, 211 N.Y.S.2d at page 135, 172 N.E.2d at page 527, '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 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.'

The Ontario guest statute, as interpreted by the Ontario courts, does not rest upon any notion that negligence on the part of a host driver causing injury to his passenger is not wrongful. The statute does not purport to give a license to drivers to operate their...