Davis v. New York & N.E.R. Co.

Decision Date08 January 1887
Citation143 Mass. 301,9 N.E. 815
PartiesDAVIS, Adm'r v. NEW YORK & N.E.R. Co.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

H.E. Bolles and R.M. Saltonstall, for defendant.

The laws of the state of Connecticut were properly determined as questions of fact by the judge who tried the case, and his findings are conclusive. Ames v. McCamber, 124 Mass 85, 91. It is submitted that this action cannot be maintained. It cannot be maintained as an action at common law; for actio personalis moritur cum persona, (Kearney v. Boston & W.R. Corp., 9 Cush. 108, 109; Hollenbeck v Berkshire R.R., Id. 480; Cummings v. Bird, 115 Mass. 346; Stebbins v. Palmer, 1 Pick. 71, 78 79; Wilbur v. Gilmore, 21 Pick. 250, 252; Smith v. Sherman, 4 Cush. 408, 412; Soule v. New York & N.H.R. Co., 24 Conn. 575; Murphy v. New York & N.H.R. Co., 30 Conn. 188;) and it is found as fact that this rule of the common law was in force in Connecticut. The common-law action which the plaintiff's intestate had in her life-time in Connecticut is not made to survive by statute to the plaintiff as her administrator. It does not survive by the statute laws of Connecticut. It does not survive under Pub.St.Mass. c. 165, § 1. See Needham v. Grand Trunk R.R., 38 Vt. 294, 307, opinion of WILSON, J. See, also, Le Forest v. Tolman, 117 Mass. 109; State v. Pittsburgh & C.R.R., 45 Md. 41. When a statute gives a cause of action which does not exist at common law, it has been repeatedly held not to apply to acts committed in another state, especially when, by the laws of the latter state, no such action can be maintained there. Statutes like this of Connecticut do not revive in new form the common-law action, but are universally held to create a new cause of action unknown to the common law. Richardson v. New York Cent. R.R., 98 Mass. 85; Whitford v. Panama R.R., 23 N.Y. 470; Blake v. Midland R.R., 10 Eng.Law & Eq. 443. An action, under that statute, could not be maintained in this commonwealth. Richardson v. New York Cent. R.R., supra; Woodard v. Michigan Southern & N.I.R.R., 10 Ohio St. 121. Nor could the plaintiff maintain an action here, under our corresponding statute, (Pub.St.Mass. c. 112, § 212,) for the intestate's death in Connecticut, (Le Forest v. Tolman, supra; Whitford v. Panama R.R., supra; Debevoise v. New York, L.E. & W.R.R., 98 N.Y. 377; State v. Pittsburgh & C.R.R., 45 Md. 41; Hover v. Pennsylvania Co., 25 Ohio St. 667; Crowley v. Panama R.R., 30 Barb. 99; Beach v. Bay State Co., Id. 433; McCarthy v. Chicago, R.I. & P.R.R., 18 Kan. 46; Connecticut Mut. Life Ins. Co. v. New York & N.H.R.R., 25 Conn. 265, 273.) As these limited statutes create a new cause of action in states where the common-law action is also made to survive by statute, two causes of action exist. Needham v. Grand Trunk Ry. Co., 38 Vt. 294; Com. v. Metropolitan R. Co., 107 Mass. 236.

In states where the common-law action is not made to survive, of course only the former action for limited damages can be maintained. If the present action can be maintained, the defendant will be made liable to two actions. In order to maintain an action of tort for injury to the person, the act which is the foundation of the action must at least be actionable by the law of the place where it is done. Le Forset v. Tolman, supra; Phillips v. Eyre, L.R. 6 Q.B. 1, 28-30; Whitford v. Panama R.R., supra; State v. Pittsburgh & C.R.R., supra; Crowley v. Panama R.R., supra. The statute under which it is sought to maintain this action (Pub.St.Mass. c. 165, § 1) does not go merely to the remedy, but to the cause of action. If this action can be maintained, then it must be because our statute gives a cause of action, as well as a remedy upon it; for Connecticut furnishes neither. It is plain, however, on general principles, that the statute gives a new cause of action, and does not merely relate to the remedy. It is radically different from the case where the cause of action is not affected, but the remedy is barred, as in the case of the statute of limitations; and, if the statute is repealed, the original action can be maintained. In such case the cause of action does not die upon the passing of the statute, but the remedy is suspended. See Wilbur v. Gilmore, 21 Pick. 252. If the action is of such a character that it survives, the administrator can maintain it at common law. If he does not, he cannot.

Brown & Alger, for plaintiff.

This action survives to the administrator under Pub.St.Mass. c. 165, § 1. The plaintiff appeals to Pub.St.Mass. The lex loci should not be invoked in this case to defeat the plaintiff. Hutchins v. New England Coal-Min. Co., 4 Allen, 580. This is a personal action, which survives by statute, and may be maintained in any jurisdiction in which property may be attached, or the defendant may be found, so that process may be served upon him. Story, Confl.Laws, §§ 543, 554; Peabody v. Hamilton, 106 Mass. 217; Pub.St.Mass. c. 164, § 1; Worthen v. Grand Trunk Ry. Co., 125 Mass. 99. The defendants are estopped from denying liability. By the courtesy of states, the defendants are permitted by the state of Connecticut to enter into contracts for transportation of passengers therein, and the defendants do this in virtue of powers granted by this commonwealth.



The defendant is a railroad corporation operating a railroad through Massachusetts and Connecticut as a continuous line by virtue of chapter 289, Acts 1873, and exists as a corporation by the laws of each of these states. The action is brought by the plaintiff as administrator of the estate of Mrs. Ruth L. Brown for alleged injury to her, which finally resulted in her death by reason of defendant's carelessness, and that of their servants, while she was being conveyed as a passenger over their railroad in Connecticut; the intestate being herself, at the time, in the exercise of due care. The law of the state of Connecticut has been properly determined as a fact by the judge presiding at the trial, and his finding in regard to it is conclusive. Ames v. McCamber, 124 Mass. 85-91. From this it appears "that, by the common law in Connecticut, an action for personal injuries does not survive to the administrator of the person injured; that there is no statute or law in Connecticut by virtue of which a common-law action for personal injuries is revived or made to survive to an administrator of the person injured." The facts, as they are alleged, "do not constitute a cause of action under the laws of the state of Connecticut, by the administrator in behalf of the intestate's estate, and this action could not be maintained in that state if duly brought by an administrator there." The administrator may maintain, upon these facts, a special action, penal in its nature, created by the statutes of Connecticut, by which damages recoverable are limited to not more than $5,000, and under which the damages recovered do not become assets of the estate, but are recovered in behalf of, and are to be paid over, in specified proportions, to certain persons not thus entitled to the same according to the laws of distribution.

The plaintiff does not claim to maintain this action as the special one provided by the statutes of Connecticut, nor under the laws of that state. Richardson v. New York Cent. Ry. Co., 98 Mass. 85. He seeks to maintain it under our statute, which provides that, in case of damage to the person, the action shall survive, and may thus be prosecuted by an administrator. Pub.St. c. 165, § 1; Hollenbeck v. Berkshire R.R., 9 Cush. 480. The inquiry is therefore presented whether a cause of action at common law which dies with the person in the state where it accrued, not having been made there to survive by any statute, will survive under and by virtue of the statutes of survivorship of another state; so that, if jurisdiction is there obtained over the person or property of the defendant, judgment may properly be rendered against him or his property. That our statute would furnish a remedy where the cause of action was one recognized by the law of this state as the foundation of an action at common law, although it accrued without the state, it being there recognized as existing, and not discharged or extinguished, will be conceded. It must certainly be the right of each state to determine by its laws under what circumstances an injury to the person will afford a cause of action. If this is not so, a person who is not a citizen of the state, or resorts to another state for his remedy, if jurisdiction can be obtained, may subject the defendant, in an action of tort, to entirely different rules and liabilities from those which would control the controversy were it carried on where the injury occurred. If, by the law of Massachusetts, it is required that a party injured, as in traveling upon a railroad, shall prove, not only the negligence of the defendant, but also that he himself was in the exercise of due care, and jurisdiction may be obtained by an attachment of property of the defendant in another state, the plaintiff might relieve himself of the necessity of proving his own due care, if, by the law of the state to which he has resorted, such proof is not required, and thus put upon the railroad or other defendant, a higher responsibility than is imposed by the state in which it was performing its business. In a similar way, if a traveler upon a steam or horse railroad could not recover in this state for an injury done by carelessness in transporting him, by reason that he was traveling upon Sunday, in violation of the laws of the state, he might, unless the law prescribed in this state is to govern, recover in any state where laws forbidding traveling on Sunday did not exist, if jurisdiction could there be obtained over the...

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2 cases
  • Davis v. New York & N.E.R. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 8, 1887
  • Nichols v. Smith
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 28, 1887

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