Caine v. St. Louis & S.F.R. Co.

• Decision Date: 05 April 1923
• Docket Number: 6 Div. 785.
• Citation: 95 So. 876,209 Ala. 181
• Court: Alabama Supreme Court
• Parties: CAINE v. ST. LOUIS & S. F. R. CO.

95 So. 876

209 Ala. 181

CAINE v. ST. LOUIS & S. F. R. CO.

6 Div. 785.

Supreme Court of Alabama

April 5, 1923

Appeal from Circuit Court, Fayette County; J. J. Curtis, Judge.

Action for damages by F. E. Caine as administrator of the estate of Franklin P. Perkins, deceased, against the St. Louis & San Francisco Railroad Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

Robert E. Smith, of Birmingham, for appellant.

Bankhead & Bankhead, of Jasper, for appellee.

GARDNER J.

Appellant as administrator of the estate of F. P. Perkins, deceased brought this action for damages against the appellee for wrongfully causing the death of his intestate, a resident of Fayette county, at Valliant, Okl., on December 6, 1920.

The complaint as amended contained three counts charging simple initial negligence, subsequent negligence, and wantonness respectively, and disclosed upon its face that each count was predicated upon the homicide statute of Oklahoma, which is set out therein, and appears to bear much similarity to the statute of that character existing in this state. Among other defenses interposed, the defendant pleaded contributory negligence on the part of plaintiff's intestate as a bar to the right of recovery upon that count, predicated upon simple initial negligence of the defendant. Plaintiff's demurrer to these pleas raise the point that they did not disclose that the matters therein stated constituted a defense to the cause of action predicated upon the law of Oklahoma. The demurrer was overruled. Evidence was offered by the respective parties, and at the conclusion of the testimony the court gave the affirmative charge in favor of the defendant, evidently upon the theory, as we gather from the record, that the pleas of contributory negligence had been sustained by the proof.

This cause of action arose under the laws of Oklahoma, where the accident occurred, which resulted in the death of plaintiff's intestate. While it is well recognized that the statutes of another state have no extraterritorial force, yet rights acquired thereunder will always, in comity, be enforced, if not against the public policy of the laws of the state where redress is sought. "In such cases the law of the place where the right was acquired, or the liability was incurred, will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought. And we think the principle is the same, whether the right of action be ex contractu or ex delicto." Herrick v. Minneapolis & St. L. R. Co., 31 Minn. 11, 16 N.W. 413, 47 Am. St. Rep. 771; North Pac. R. Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958; Helton v. Ala. Mid. R. R., 97 Ala. 275, 12 So. 276.

Under the law of Oklahoma the rule of comparative negligence prevails and contributory negligence on the part of plaintiff is not a bar to the right of action, but presents merely a question of fact for the jury, as disclosed by the following quotation from Wichita Falls, etc., Ry. Co. v. Groves, 81 Okl. 34, 196 P. 677:

"It is next contended that the court erred in submitting the case to the jury for the reason the evidence is conclusive that plaintiff was guilty of contributory negligence and therefore cannot recover. The uniform holding of this court in construing section 6, art. 23, of Constitution, has been that the question of contributory negligence is always a question of fact to be submitted to the jury."

See, also, as directly in point, Dickinson v. Cole (Okl. Sup.) 177 P. 570, reviewed by the Supreme Court of the United States, and there affirmed in Chi., R.I. & P. Ry. Co. v. Cole, 251 U.S. 54, 40 S.Ct. 68, 64 L.Ed. 133.

There is nothing in the foregoing rule so contrary to the policy of the law of this state as to prevent its enforcement here. North. Pac. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958; Ill. Cent. v. Ihlenberg, 75 F. 873, 21 C. C. A. 546, 34 L. R. A. 393.

The question, therefore, presented by the action of the court in overruling the demurrer to the pleas of contributory negligence, is whether or not upon the question of contributory negligence the law of Oklahoma should control. Our investigation discloses that the following quotation from 5 R. C. L. § 135, p. 1044, is well supported by the authorities:

"All matters of defense to an action such as the fellow servant rule, contributory negligence, assumption of risk, etc., are to be determined in accordance with the lex loci deliciti."

See, also, L. & N. R. Co. v. Whitlow, 105 Ky. 1, 43 S.W. 711, 41 L. R. A. 614; E. Tenn., V. & G. Ry. Co. v. Lewis, 89 Tenn. 235, 14 S.W. 603; Bridger v. Asheville & S. R. Co., 27 S.C. 456, 3 S.E. 860, 13 Am. St. Rep. 653; Voshefskey v. Hillside Coal & Iron Co., 21 A.D. 168, 47 N.Y.S. 386; Clark v. Russell, 97 F. 900, 38 C. C. A. 541; 7 Ann. Cas. 257, note.

There is some difficulty at times in drawing the distinction between those...