Connor v. N.Y., N. H. & H. R. Co.

• Decision Date: 03 January 1908
• Citation: 68 A. 481,28 R.I. 560
• Parties: CONNOR v. NEW YORK, N. H. & H. R. CO.
• Court: Rhode Island Supreme Court

68 A. 481

28 R.I. 560

CONNOR

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Rhode Island.

Jan. 3, 1908.

Exceptions from Superior Court, Providence County.

Action by Catherine Connor, as administratrix, against the New York, New Haven & Hartford Railroad Company. Judgment in favor of plaintiff, and defendant brings exceptions. Cause remitted for a new trial.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Albert B. Crafts and Thomas A. Carroll, for plaintiff. Lewis A. Waterman, for defendant.

DOUGLAS, C. J. The plaintiff's intestate, a resident of Stonington, Conn., was found dead on the morning of December 14, 1901, between the tracks of the defendant corporation at a highway crossing in Stonington. The plaintiff, his widow, was duly appointed administratrix of his estate by the probate court of Stonington, and commenced this action, describing herself as such administratrix, in the common pleas division of our Supreme Court March 11, 1902, to recover damages for herself and one child, the issue of her marriage with the deceased. The case came on for trial by Jury in the superior court, and a verdict was rendered for the plaintiff March 14, 1906, for $4,458.33. After a motion for a new trial had been denied in the superior court, the defendant duly filed its bill of exceptions, and the same is now before us for consideration.

The exceptions raise the questions whether the action is maintainable in a Rhode Island court by the Connecticut administratrix, whether the verdict is sustained by the evidence, and whether the superior court erred in the admission and in the exclusion of certain evidence or on consideration of the alleged newly discovered evidence.

The first question is of general importance. The statutes of Connecticut (Gen. St. 1887, §§ 1008 and 1009, and chapter 197, p. 898, passed at January session, 1897), which are set out at length in the declaration, give a right of action in case of death by the negligence of another to the administrator of the deceased for the benefit of the husband or widow and heirs of the deceased in certain proportions, and prescribe certain limits of time within which the action must be brought and the notice to be given in certain cases. These statutes create a cause of action substantially similar to the cause of action given by our own statute (Gen. Laws 1896, c. 233, § 14), and the action will therefore be entertained by our courts. O'Reilly v. N. Y. & N. E. R. R, Co., 16 R. I. 395, 396, 17 Atl. 171, 906, 19 Atl. 244, 5 L. R. A. 364, 6 L. R. A. 719; Gardner v. N. Y. & N. E. R. Co., 17 R. I. 790, 24 Atl. 831. The action is transitory, and its enforcement is not contrary to our public policy. 2 Wharton, Confl. L. 480a. While so much is not disputed by the defendant, it is contended on its behalf that, while our statute expressly provides that "such action shall be brought by and in the name of the executor or administrator of such deceased person whether appointed or qualified within or without the state," this language is necessarily confined to the action given by the statute where the cause of the death occurred within this state (Usher v. Railroad Co., 126 Pa. 206, 17 Atl. 597, 4 L. R. A. 261, 12 Am. St. Rep. 863), and the general principle of law which denies an executor or administrator the right to sue in a foreign jurisdiction applies to a case like the present. On the other hand, it is contended on behalf of the plaintiff that the sum to be recovered will not become assets of the estate, but a special fund to be taken by the administratrix, not in her official capacity, but as trustee for the parties interested, and hence, though she sues nominally as administratrix, her right is that of a trustee and may be enforced wherever the defendant is found, if the cause of action is one recognized by the public policy of the forum. Both agree that the limits of the right and the person who may sue are determined by the law of the state where the injury is done. As to the limits of the right, there is substantial agreement amongst the courts and text-writers who have discussed the subject. 2 Whart. Confl. L. 1098, 1132; Minor, Confl. L. 484; Tiffany, Death by Wrongful Act, § 201; Boston & Maine R. R. Co. v. McDuffey, 79 Fed. 934, 25 C. C. A. 247; Nor. Pacif. R. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958; Usher v. Railroad Co., 126 Pa. 206, 17 Atl. 597, 4 L. R. A. 261, 12 Am. St. Rep. 863; Casey v. Hoover, 197 Mo. 62, 94 S. W. 982; Bussey v. Charleston Ry. Co., 73 S. C. 215, 53 S. E. 165. As to the person who may sue, notwithstanding the opinion of Mr. Justice Miller in Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439, which has been followed by the federal courts and by some of the states, holding that, where the personal representative of the deceased is designated, the word may be construed to include an administrator appointed in the state of the forum, we are constrained to hold that a statute when it names an official must be construed to refer to one appointed by the same sovereignty which enacts and enforces the statute, unless such construction manifestly violates the context. When, therefore, the Connecticut statute gives the action to the personal representatives of the deceased, it means the executor or administrator appointed and acting under the authority of Connecticut, just as the widow and next of kin, who are the beneficiaries, are the persons who are recognized as such by Connecticut law.

It has been held in Connecticut that a foreign administrator is entitled to take out ancillary letters in Connecticut in order to enforce a claim of a very similar character. H. & N. H. R. R. Co. v. Andrews, 36 Conn. 213. The inference is plain that, to enforce the right under the Connecticut statute there must be a Connecticut administrator, or, in other words, that the Connecticut statute gives the right of action to the Connecticut representative only. Our own practice is entirely different. There is no need of a foreign administrator taking out ancillary letters in Rhode Island, as our statute provides that the action which it gives may be brought by the executor or administrator whether appointed in Rhode Island or elsewhere, and, if the action is not brought by the personal representative within six months, the beneficiaries or any one of them may bring the suit. Gen. Laws 1896, c. 233, § 14. There can, therefore, be no doubt of the party entitled in any case arising under our statute. But the question presented by this case is whether a Connecticut administratrix can sue in Rhode Island upon the right of action given her by the Connecticut statute. There is a hopeless contrariety amongst the cases on this question which we shall not attempt to reconcile. In several states, as in Connecticut, a foreign administrator is required to take out ancillary letters. We think this cannot be done in Rhode Island. By our statute (Gen. Laws 1896, c. 209, § 9, p. 694) an administrator of a foreign decedent cannot be appointed in Rhode Island unless the intestate dies leaving rights, credits, or estates in some town or city of this state. A claim for compensation for a tort to the person given by the statute of another state cannot be said to be a right credit or estate left by the decedent in this state. Hence neither original nor ancillary administration can be granted by any probate court within this state merely to recover upon such a claim. We are therefore confronted with the fact that the action is given only to the Connecticut administratrix, and that she cannot take out ancillary letters here. She must sue, therefore, as a foreign administratrix, or the action cannot be brought in our courts.

We think the argument for allowing the administratrix to sue is convincing. The action, being a transitory one, may be prosecuted in Rhode Island if the parties are found here. The administratrix in prosecuting such an action does not act in subordination to the probate court which appointed her; and does not hold any sums which she recovers as assets of the estate for which she is accountable in the probate court, or which she is required to devote to the payment of debts. In all her acts under the statute she acts as trustee only for the beneficiaries named. The rule is undoubtedly of long standing that an administrator or executor appointed by a foreign jurisdiction cannot generally be recognized as such by the courts. This rule is well founded upon the reason that no state can allow property within its jurisdiction to be diverted from the opportunity of its own citizens to enforce their claims upon it. If there are creditors of a foreign decedent among our citizens, they must have the right to prosecute their claims in our own courts against assets under our control. Our Legislature has recognized the principle that, when the reason fails, the rule should be modified. Chapter 212, § 30, Gen. Laws 1896, authorizes a probate court to give to a foreign executor or administrator power to collect and dispose of property of the decedent in this state after giving certain notice, and if no creditors appear to object. We have already noticed that a foreign executor or administrator may bring the action given by our statute. Exceptions to the general rule have been recognized by text-writers and in other jurisdictions. A foreign representative may maintain a suit in his own name without recourse to any local administration where he sues as trustee, holding the legal title to property not assets of the estate. 8 Ency. Pl. & Pr. 708,...