Christilly v. Warner

CourtSupreme Court of Connecticut
Citation87 Conn. 461,88 A. 711
Decision Date30 October 1913

Beach, J., dissenting.

Appeal from Superior Court, New Haven County; Joel H. Reed and Lucien F. Burpee, Judges.

Action by Alexander Christilly, administrator, against Charles H. Warner. From a judgment for defendant on demurrer to the complaint, plaintiff appeals. Affirmed.

Francis P. Guilfoile and Clayton L. Klein, both of Waterbury, for appellant.

William E. Thorns, of Waterbury, and John F. McDonough, of Mystic, for appellee.

WHEELER, J. The complaint states that the defendant was operating his automobile in a negligent manner upon a street in a thickly settled part of Springfield, Mass., at an unreasonable speed, and contrary to the ordinances of said city and the laws of the commonwealth; that without warning, although notified of the danger to the plaintiff's intestate, a five year old child, and without reducing the speed of his automobile, or attempting to avoid a collision with the child, because of his reckless and negligent operation he ran his automobile upon the child, who in the exercise of due care was then crossing the street, and caused her the injuries from which she shortly died. The complaint further states that at the time of the collision the law of Massachusetts was, and still is: "If a person or corporation by his or its negligence or by the negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is in the exercise of due care and not in his or its employment or service, he or it shall be liable in damages in the sum of not less than $500 nor more than $10,000, to be assessed with reference to the degree of his or its culpability or that of his or its agents or servants, to be recovered in an action of tort, commenced within two years after the injury which caused the death, by the executor or administrator of the deceased, one-half thereof to the use of the widow, and one-half to the use of the children of the deceased, or if there is no widow, the whole to the use of the next of kin." Section 2, chapter 171, Revised Laws of Massachusetts, as amended by chapter 375, Acts and Resolves Mass., 1907. The action is thus based upon this statute. The demurrer to the complaint rests upon three grounds: (1) That the statute is a penal one; (2) that it is contrary to, the public policy of Connecticut; and (3) that the action was not brought by an administrator duly qualified in Connecticut within one year from the date of accident. The trial court sustained the demurrer upon ground 1.

It is a general principle of our law that the plaintiff has the right to enforce in our courts any legal right of action which he may have, whether it arise under our own law or of that of another jurisdiction. Vanbuskirk v. Hartford Fire Insurance Co., 14 Conn. 583.

There are certain recognized exceptions to this general rule. We do not enforce foreign statutes which are penal, or rights arising thereunder.

Nor do we enforce the law of another jurisdiction, nor rights arising thereunder, which we conceive "to be injurious to our public rights," or to the "interests of our citizens," nor those which "offend our morals or contravene our public policy or violate our positive laws." Vanbuskirk v. Hartford Fire Ins. Co., 14 Conn. 583, 592.

In construing a foreign statute we accept the construction of the statute adopted by the highest tribunal of the jurisdiction of the statute. Crum v. Bliss, 47 Conn. 592, 599.

No action lay under the common law of Massachusetts to recover damages for death through negligence. Carey v. Berkshire Railroad, 1 Cush. (Mass.) 475, 48 Am. Dec. 616. By statute (Stat. of 1840, c. 80) a remedy was provided against a carrier of passengers, for the death of a passenger through its negligence, by indictment and fine within certain limits, to be greater or smaller according to the degree of culpability attached to the defendant and not to the loss suffered. The fine was distributed to the widow and heirs. This statute has always been held in Massachusetts a penal one.

It was pointed out in Carey v. Berkshire Railroad that this statute and the English statute, Lord Campbell's act, were framed on different principles, the latter upon the principle of damages proportioned to the injury, the former upon the principle of punishment. "The penalty, when thus recovered, is conferred on the widow and heirs, not as damages for their loss, but as a gratuity from the commonwealth." Com. v. Boston & L. R. Co., 134 Mass. 211, 213.

Later on an action of tort for a death was given against a railroad (St. 1881, c. 199) as an additional remedy to that by indictment, and providing that the damages should be "assessed with reference to the degree of culpability of the corporation or of its servants or agents." And the court held this remedy was penal. Littlejohn v. Fitchburg R. Co., 148 Mass. 478, 482, 20 N. E. 103, 2 L. R. A. 502. "Originally," the court said, "the remedy was by indictment. Afterwards it was extended to an action of tort. * * * But only one of the remedies can be pursued by the executor or administrator. * * * It is in substance a penalty given to the widow and children and next of kin, instead of the commonwealth, and as such the intestate could not release the defendant from liability for it" Doyle v. Fitchburg R. Co., 162 Mass. 66, 71, 37 N. E. 770, 771 (25 L. R. A. 157, 44 Am. St. Rep. 335).

The remedy of tort was extended to railways. And thereafter the court said, "The conclusion which has been reached as to the character of these two acts (St. 1881, c. 199, and St. 1886, c. 140) could not have been avoided. It had to be held that these acts gave a civil remedy for the recovery of a penalty imposed by way of punishment. * * * It was provided that the amount to be recovered in the action of tort was 'to be assessed with reference to the degree of culpability of said corporation or of its servants or agents.' That fixed the character of the action of tort under these two acts. By that provision the effect of these two acts was to give a civil remedy for the recovery of a penalty imposed by way of punishment." Hudson v. L. & B. R. Co., 185 Mass. 510, 517, 71 N. E. 66, 67.

This form of remedy was extended to other defendants, until the general statute, providing an action against any person or corporation, appeared in its present form, in chapter 375, Acts and Resolves 1907. Under the remedy by indictment for a negligent death, or that in tort, the fine was imposed and the damages assessed on the same basis, according to the degree of culpability and not according to the loss. Of this statute (chapter 375, Acts and Resolves 1907) the Supreme Court of Massachusetts thus expressed itself: "The statute may be designated as remedial for the reason that a remedy is provided where before its enactment none existed. But the damages assessed are distinctly grounded upon the defendant's culpable misconduct and are diminished or enhanced according to the degree of his delinquency." Brown v. Thayer, 212 Mass. 392, 398, 99 N. E. 237. This is the latest utterance of that court upon this subject, and we think, in the light of the uniform construction given this language when found in the various statutes affording the remedy by indictment and in tort, that it should be regarded as final.

The expression found in Brooks v. F. & L. St Ry., 200 Mass. 8, 86 N. E. 289, and Grella v. Lewis Wharf Co., 211 Mass. 54, 97 N. E. 745, Ann. Cas. 1913A, 1136, that the statute is a remedial one was, as applied to the situation discussed, not inaccurate, although without explanation apt to prove somewhat misleading. The statute is in a sense a remedial one, for it has, step by step, in its progress of amendment, furnished a remedy where none existed before. Other tribunals have reached a similar view of similar statutes and of the law of Massachusetts. Adams v. Fitchburg Ry. Co., 67 Vt. 76, 30 Atl. 687, 48 Am. St Rep. 800; O'Reilly v. N. Y. & N. E. R. Co., 16 R. I. 388, 17 Atl. 171, 906, 19 Atl. 244, 5 L. R. A. 364, 6 L. R. A. 719.

We have never allowed a recovery in a case of a negligent death upon any theory save that of just compensation. We have never penalized for such a wrong. To permit this to be done would be against our public policy, and comity does not require that we enforce the statute of a foreign jurisdiction which is so manifestly contrary to the public policy of our law. Vanbuskirk v. Hartford Fire Ins. Co., supra. This rule is of universal recognition. Higgins v. Central New England Railroad, 155 Mass. 176, 29 N. E. 534, 31 Am. St. Rep. 544; Texas & P. Ry. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829.

The action was begun by the administrator appointed in Massachusetts shortly after the accident. Subsequently, without objection, the administrator appointed in Connecticut became a party, within two years, but over one year, subsequent to the accident.

One cause of demurrer is that the action was not brought within one year, the period of limitation within which, under chapter 193, P. A. 1903, actions for just damages for injuries resulting in death must be brought. The present action is not of the character of the actions provided for by our statute of limitations, and it has no relation to an action to recover a penalty. Moreover, the Massachusetts statute limits the recovery of the penalty to two years, and actions thereunder are governed by its limitation.

There is no error. In this opinion the other judges concurred, except BEACH, J., who dissented.

BEACH, J. (dissenting). I dissent from the conclusion that the Massachusetts statute is a penal statute in the international sense, and from the conclusion that its enforcement would contravene the public policy of the state of Connecticut.

Upon the question of what laws are penal in an international sense so that they will not be enforced by a foreign court, the...

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    ...excess of actual damages, the amount "is assessed with reference to the degree of the defendant's culpability." See Christilly v. Warner, 87 Conn. 461, 469, 88 A. 711 (1913) (Beach, J., dissenting). Our Supreme Court has indicated its recognition that the damages provision of the tree cutti......
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