Chubbuck v. Holloway
| Decision Date | 02 January 1931 |
| Docket Number | 28,210 |
| Citation | 234 N.W. 314,182 Minn. 225 |
| Parties | EDGAR CHUBBUCK v. PERCY HOLLOWAY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover of the executor of the estate of Hubert Holloway for injuries sustained by plaintiff in a collision between a Soo line train and an auto owned and operated by decedent Holloway in which plaintiff was riding. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, Grannis, J. and plaintiff appealed. Reversed, but affirmed after reargument.
In Wisconsin statute gives survival of liability in actions ex delicto.
1. Under a Wisconsin statute there is, in actions ex delicto, a survival of liability upon the death of the wrongdoer.
In Minnesota such actions abate by death.
2. In Minnesota, G.S. 1923 (2 Mason, 1927) § 9656, restates the common law rule that all actions ex delicto abate on the death of either party.
Enforcement in Minnesota of right of action accruing under foreign statute.
3. A right of action accruing to a party under a foreign statute will as a matter of comity be enforced in the courts of this state when jurisdiction can be had and justice done between the parties if such statute be not contrary to the public policy of this state. Powell v. G.N. Ry. Co. 102 Minn. 448, 113 N.W. 1017, followed.
Wisconsin statute does not deny jurisdiction here.
4. The Wisconsin statute under which plaintiff's cause of action originates is not so different from our public as to cause our courts to decline jurisdiction.
No proof that plaintiff's right cannot be enforced here.
5. It is not made to appear that the legal machinery of this state is so unsuited to the enforcement of plaintiff's right as to cause us to refuse to take jurisdiction.
AFTER REARGUMENT.
February 13, 1931.
Demurrer to complaint sustained because wrong statute was pleaded.
6. Plaintiff having pleaded § 287.01 instead of § 331.01 of the Wisconsin statute, he failed to state a cause of action under the laws of Wisconsin, and hence there must be an affirmance and not a reversal as stated in the original opinion.
Stilson & Goldberg, for appellant.
Lewis Hunt & Palmer, for respondent.
Plaintiff appealed from an order sustaining defendant Holloway's demurrer to the complaint. Defendant railway company has answered and is not now before the court.
Plaintiff was a passenger in an automobile operated by Hubert Holloway. In crossing a railroad track in the state of Wisconsin the driver of the automobile was killed and plaintiff was injured. Decedent was a resident of Minnesota, and Percy Holloway is now the executor of his estate, having been appointed in St. Louis county, Minnesota. Plaintiff, who was and is a resident of Minnesota, now sues both the railway company and said executor, seeking to recover for his injuries, which he claims resulted from the concurrent negligence of decedent and the railway company.
Plaintiff's alleged cause of action against the Holloway estate rests upon the Wisconsin statute, which is Wisconsin St. 1927, c 287, § 287.01. It is pleaded in the complaint and reads:
1. Under the Wisconsin statute there was a survival of liability upon the death of the wrongdoer. The fact that the statute states that it does not apply to actions for slander and libel is significant. It would seem by this exception that the statute otherwise included in "rights or interests of another" personal injury actions. See Kranz v. Wisconsin Tr. Co. 155 Wis. 40, 42, 143 N.W. 1049, Ann. Cas. 1915C, 1050; Devine v. Healy, 241 Ill. 34, 89 N.E. 251. It is not a penal statute.
2. At common law all actions ex delicto abate on the death of either party. In Minnesota we have a statute which restates the rule of the common law by saying that a cause of action arising out of an injury to the person dies with the person of either party. G.S. 1923 (2 Mason, 1927) § 9656. Our statute excepts actions for death by wrongful act, G.S. 1923 (2 Mason, 1927) § 9657. That is purely statutory.
Had plaintiff's facts originated in Minnesota they would not have been sufficient to constitute a cause of action for the simple reason that such cause of action dies with the death of the wrongdoer. But the accident having occurred in Wisconsin, the statute of that state gives the plaintiff the right to sue the representative of the estate of the wrongdoer and recover. May he prosecute in Minnesota the right given him by the Wisconsin statute? The character of the cause of action is discussed in Devine v. Healy, 241 Ill. 34, 89 N.E. 251.
3. A right of action accruing to a party under a foreign statute will as a matter of comity be enforced in the courts of this state when jurisdiction can be had and justice done between the parties if such statute be not contrary to the public policy of this state. Powell v. G.N. Ry. Co. 102 Minn. 448, 113 N.W. 1017; Healy-Owen-Hartzell Co. v. Merricourt Equity Exch. 164 Minn. 1, 204 N.W. 527.
The claim is that the Wisconsin statute comes within the inhibition of the foregoing rule on the theory that it is contrary to the public policy of this state. As here used the term "public policy" does not mean simply sound policy or good policy, but it means the law of the state, whether found in our constitution, our statutes, or our judicial records.
In Herrick v. M. & St. L. Ry. Co. 31 Minn. 11, 16 N.W. 413, 47 Am. R. 771, the plaintiff, being an employe of defendant in Iowa, was injured in that state under circumstances entitling him to recover from defendant under an Iowa statute. He could not have recovered at common law. We then had no such statute in Minnesota. We there recognized the rule that actions for personal torts are transitory and may be brought wherever the wrongdoer may be found and jurisdiction of his person can be obtained. It was held that the rights acquired under the Iowa statute, which of course had no extraterritorial force, would always in comity be enforced subject to the limitation above mentioned; and it was there said that 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 laws of the state where the action is brought. The plaintiff was permitted to prosecute his action upon the theory that it was not against the public policy of this state though the laws of our state did not give such right of action. Under the common law then prevailing in this state plaintiff had no such cause of action.
The instant case can be distinguished from the Herrick case, 31 Minn. 11, 16 N.W. 413, 47 Am. R. 771, in only one important particular, namely: We now have a statute above cited in addition to but which merely restates the rule of the common law to the effect that such right of action dies with the death of the wrongdoer. In the Herrick case the plaintiff's cause of action rested upon the foreign statute. Here it does also. The statutory restatement of the rule of the common law can be given but a limited significance in establishing a public policy as compared with the public policy reflected by the judicial record in the Herrick case.
4. Is the difference between the Wisconsin statute and our law sufficient for declining jurisdiction? We think not. See Goodrich, Conflict of Laws, 196-200. Plaintiff has a cause of action under the Wisconsin statute. That right is property. He owns something. He asks us to help him get it. He is a citizen and resident of this state. Defendant is also domiciled within our borders. The property to be reached so far as we know is all in this state. Plaintiff should be entitled to come into the courts of his own state for redress of legal wrongs when jurisdiction may be acquired.
Relative to the enforcement of a cause of action arising under a foreign statute, the court in Loucks v. Standard Oil Co. 224 N.Y. 99, 110, 120 N.E. 198, 201, in considering the difference between the foreign law and the law of the forum, said:
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