Charnock v. Taylor

• Decision Date: 22 September 1943
• Docket Number: 95.
• Parties: CHARNOCK v. TAYLOR et al.
• Court: North Carolina Supreme Court

26 S.E.2d 911

223 N.C. 360

CHARNOCK v. TAYLOR et al.

No. 95.

Supreme Court of North Carolina

September 22, 1943

The plaintiff, Mrs. Charnock, brought this action against the defendant, Forrest C. Taylor, to recover damages for an injury alleged to have been sustained through the negligence of the said Taylor in connection with the collision of an automobile in which plaintiff was riding in the City of Bristol, Tennessee.

The defendant answered, denying negligence and alleging that plaintiff received her injury, if at all, through the sole negligence of the ET & WNC Transportation Company, a Tennessee corporation; but still denying his negligence alleges that if in truth and fact he was negligent, the said ET & WNC Transportation Company was, in this respect, a joint tort-feasor with him in negligently causing plaintiff's injury, and asked for contribution in case recovery was had against him.

Seeking to avail himself of the provisions of C.S. § 618, as amended by Pub.Laws 1929, c. 68, Taylor filed a petition to bring in the Transportation Company as a party, which was allowed by the Clerk. Service was made upon the Company in this State.

Since the complaint of Mrs. Charnock contained no allegation of negligence against the Transportation Company, that defendant demurred to the complaint as not stating a cause of action against it. At the same time it demurred to the answer of Taylor, which asked affirmative relief, as not stating a cause of action against this defendant, for that in this respect the Tennessee law applies and governs, and this does not recognize contribution between joint tort-feasors, or permit an action by one joint tort-feasor against another to recover contribution.

The demurrer to the answer of Taylor was sustained, and the defendant Taylor appealed.

Harkins Van Winkle & Walton, of Asheville, for appellant.

George A. Shuford, of Asheville, for appellee ET & WNC Transportation Co.

SEAWELL Justice.

Whether for reasons of comity (Bond v. Hume, 243 U.S. 15, 37 S.Ct. 366, 61 L.Ed. 565), or for convenience, or out of respect for the fact that those who are in the jurisdiction of a foreign sovereignty, even temporarily, are under the protection of its laws and must conform their conduct to them (Ala., etc., R. Co. v. Carroll, 97 Ala. 126, 138, 11 So. 803, 18 L.R.A. 433, 38 Am.St.Rep. 163), the rule in case of conflict of laws may be stated generally as follows: As to substantive laws, or laws affecting the cause of action, the lex loci--or law of the jurisdiction in which the transaction occurred or circumstances arose on which the litigation is based--will govern; as to the law merely going to the remedy, or procedural in its nature, the lex fori--or law of the forum in which the remedy is sought--will control. Howard v. Howard, 200 N.C. 574, 158 S.E. 101; Farfour v. Fahad, 214 N.C. 281, 199 S.E. 521. "The broad, uncontroverted rule is that the lex loci will govern as to all matters going to the basis of the right of action itself, while the lex fori controls all that is connected merely with the remedy." 11 Am.Jur., Conflict of Laws, § 14. To put it concisely, the lex loci, or law of the situs, determines the substantive rights of the parties, and the lex fori governs in matters of remedy and procedure.

The rule is followed with practical uniformity in its particular application to actions founded in tort: Matters affecting the substantial rights of the parties are determined by the lex loci delicti commissi, and remedial, or procedural, rights are determined by the law of the forum.

Within this rule are questions relating to the existence or nonexistence of a cause of action--that is, whether the circumstances out of which the litigation arose created or gave rise to such right. This is stated concisely in 15 C.J.S., Conflict of Laws, § 12, as follows: "The lex loci delicti governs the substantial aspects of torts, and determines whether a right of action in tort has been created and its extent." In Restatement, Conflict of Laws, § 378, the American Law Institute expresses the rule: "The law of the place of wrong determines whether a person has sustained a legal injury." Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170. See Id., 109 N.J.L. 453, 162 A. 623, 83 A.L.R. 869; Gray v. Gray, 87 N.H. 82, 174 A. 508, 94 A.L.R. 1404; Russ v. Atlantic Coast Line R. Co. 220 N.C. 715, 18 S.E.2d 130; McDonald v. Mallory, 77 N.Y. 546, 550, 33 Am.Rep. 664. In Howard v. Howard, supra [200 N.C. 574, 158 S.E. 102], Minor on Conflict of Laws, 479,§ 194, is quoted with approval: " 'If under the lex loci there be a right of action, comity permits it to be prosecuted in another jurisdiction; but if under the lex loci no right of action is created or exists, then it exists nowhere and can be prosecuted in no jurisdiction.' Pendar v. [ H. & B.] Machine Co., 35 R.I. 321, 87 A. 1, 2, L.R.A.1916A, 428. This statement of law is generally accepted."

The case at bar is novel only in one aspect. No case under similar conflict of laws has been brought to our attention involving a demand for contribution between joint tort-feasors, but the rule is broad enough to cover that situation, since such demand would not arise except as it grew out of the tortious transaction and the relation thus brought about between the parties.

With respect to legal liability for contribution between joint tort-feasors, the laws of North Carolina and the laws of Tennessee, where admittedly the collision of the vehicles and injury of plaintiff occurred, are at variance. Under the common law there is no right to an action by one...