First Nat. Bank in Albuquerque v. Benson

• Citation: 1976 NMCA 72,89 N.M. 481,553 P.2d 1288
• Decision Date: 27 July 1976
• Docket Number: No. 2189,2189
• Parties: FIRST NATIONAL BANK IN ALBUQUERQUE, Ancillary Executor and Personal Representative of the Estate of Walter F. Murphy and Margaret M. Murphy, Deceased, Plaintiff-Appellee, v. Olive Gruen BENSON, Executrix of the Estate of William R. Benson, Deceased, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1288

553 P.2d 1288

89 N.M. 481

FIRST NATIONAL BANK IN ALBUQUERQUE, Ancillary Executor and

Personal Representative of the Estate of Walter F.

Murphy and Margaret M. Murphy, Deceased, Plaintiff-Appellee, v. Olive Gruen BENSON, Executrix of the Estate of William R.

Benson, Deceased, Defendant-Appellant.

No. 2189.

Court of Appeals of New Mexico.

July 27, 1976.

Rehearing Denied Aug. 10, 1976.

Certiorari Denied Sept. 16, 1976.

[89 NM 481] Kenneth R. Brandt, Bruce D. Hall, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellant.

Joseph M. Fine, Albuquerque, for plaintiff-appellee.

OPINION

SUTIN, Judge.

This is a wrongful death action governed by § 22--20--3, N.M.S.A. 1953 (Vol. 5). By interlocutory appeal, defendant claims the trial court erred in denying him summary judgment because all of plaintiff's and defendant's decedents were residents of Missouri, having died in an airplane crash in New Mexico; that the State of Missouri alone had jurisdiction over the parties and the subject matter under the 'significant contacts choice of laws' rule; that the Wrongful Death Act of Missouri controlled this claim for relief; that New Mexico should adopt this rule and abandon the 'lex loci delicti commissi' rule. We affirm.

In 1961, the Supreme Court adopted the lex loci delicti rule. Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362 (1961). The Court said:

This accident occurred in the state of Colorado and is to be governed by the substantive law of that state. Restatement, Conflict of Laws § 378 (1934); 9 Blashfield Encyclopedia (sic) of Automobile Law § 5791. (68 N.M. at 47, 358 P.2d at 363).

The 1934 version of § 378 of the Restatement, supra, says:

The law of the place of wrong determines whether a person has sustained a legal injury.

Blashfield, supra, § 5791, 1964 Supplement, notes Zamora v. Smalley for the rule that:

The rights and liabilities of parties in automobile accidents, as a general rule, are determined by the laws of the state where the accident occurred.

We have no authority to change this rule. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). This matter rests in the Supreme Court.

In passing, we note that Missouri adopted the lex loci delicti rule. Hall Motor Freight v. Montgomery, 357 Mo. 1188, 212 S.W.2d 748 (1948); 16 Am.Jur.2d, Conflict of Laws § 71 (1964). This action was originally filed in Missouri. It was dismissed after the complaint was filed in New Mexico. Plaintiffs would have been entitled to trial in Missouri, governed by the Wrongful Death Act of New Mexico. By dismissal of their missouri complaint and the filing of their complaint in New Mexico, plaintiffs, under Missouri law, lost their right to a claim for relief in Missouri. See Judge Hernandez' dissenting opinion.

The dissenting opinion strongly urges the adoption of the 'significant contacts choice of laws' rule. This rule is in a state of uncertainty and we question the advisability of adopting this rule, presently.

Since Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963), a revolution has occurred in multi-state conflict of laws cases. Prior thereto, the doctrine of lex loci delicti commissi controlled the issue of liability, and not the lex fori (the law of the forum, where suit is brought or a remedy is sought).

Lex loci delicti commissi was a doctrine of certainty. Without exception, the law of the State of injury applied regardless of where the action was commenced. Babock rejected the mechanical place of injury rule, sacrificed the certainty provided by the old rule for a new one, that which was considered to be a just, fair and practical result. This new rule was called 'center of gravity' or 'grouping of contacts' doctrine. This doctrine was based upon the following philosophical concept:

Justice, fairness and 'the best practical result' . . . may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation. (Emphasis added) (191 N.E.2d at 283).

On Babcock, Professor Reese, in 'Chief Judge Fuld and Choice of Law', 71 Colum.L.Rev. 548 at 552 (1971) said:

It marks a new beginning and where it will lead is as yet uncertain. Perhaps it will lead to the abandonment of all choice-of-law rules in favor of an approach by which cases are decided essentially on an ad hoc basis after consideration of certain factors. Perhaps, on the other hand, it will lead of the development of choice-of-law rules which will handle satisfactorily the myriad of complicated situations that can be expected to arise. Come what may, the case has brought us to a great divide.

In New York, for ten years, this doctrine began with dissent and added with dissent. Dym v. Gordon, 16 N.Y.2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792 (1965); Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877 (1968); Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969); Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972). The Court did agree in Long v. Pan American World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513, 213 N.E.2d 796 (1965). Confusion over the application of the new rule has become confounded. 'Center of gravity', 'grouping of contacts', 'interests', 'concerns' have become catchwords and so interpreted as to reflect the innate beliefs of each member of the Court. These decisions lack as precise consistency. The results depend on what the court believes the public policy of a State should be. It depends upon what we believe '(j)ustice, fairness and 'the best practical result" would be in each case. Although each member of a Court has definite beliefs that the law of the jurisdiction which has the greatest interests in the litigation should control, a review of the cases discloses that speculation plays an important role. One of the areas of speculation is consideration of a factor that '. . . parties may have acted in reliance upon their assumption that courts would apply a certain rule of decision, and application of a different rule to their detriment would then be unjust. . . .(I)t is jurisprudentially significant that parties' rights be determined by the law or system of rules which they most probably believed would control their relationship.' Miller, supra (290 N.Y.S.2d at 747, 237 N.E.2d at 886). What the parties believed the law to be prior to the tragedy is pure speculation.

A review of the cases will show that the result depends upon whether the court desires to protect the plaintiff or defendant. 'The problem has been exacerbated, of course, by the scholar's, and sometimes the Judge's understandable penchant to discover a single embracive principle to cover all cases.' Tooker, supra (Breitel, J., dissenting). (301 N.Y.S.2d at 542, 249 N.E.2d at 411).

Justice Breitel, concerring in Neumeier, supra, summed up in two sentences the status of the lex loci delicti rule in New York. He said:

What the Babcock case . . . taught and what modern day commentators largely agree is that lex loci delictus is unsoundly applied if it is done indiscriminately and without exception. It is still true, however, that lex loci delictus is the normal rule, as indeed Chief Judge Fuld noted in the Tooker case, . . . to be rejected only when it is evident that the situs of the accident is the least of the several factors or influences to which the accident may be attributed . . .. (Emphasis by Court) (355 N.Y.S.2d at 72, 286 N.E.2d at 459).

For a review of those states which follow the lex loci delicti rule and the 'significant contacts choice of laws' rule, together with extensive law review articles on this subject, see, First National Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973). The scholars, like the New York Court of Appeals, agree that a modification of the lex loci delicti rule is necessary, but there is a wide divergence of views on how to accomplish a just result.

Affirmed.

IT IS SO ORDERED.

LOPEZ, J., concurs.

HERNANDEZ, J., dissents.

HERNANDEZ, Judge (dissenting).

I respectfully dissent.

The facts of this case, in my opinion, point out most effectively the illogicalities of the lex loci delicti rule. Nex Mexico's sole connection with this matter and the parties involved therein is the entirely fortuitous circumstance that the accident occurred here. Therefore, a recital of the pertinent facts is made necessary.

On October 30, 1971, two couples, Mr. and Mrs. Walter F. Murphy and Mr. and Mrs. William R. Benson, all domiciliaries of Missouri, were returning to that state after attending a business convention in Las Vegas, Nevada. They flew a private plane rented in Missouri from a Missouri corporation of which Mr. Murphy and Mr. Benson were two of the three officers and stockholders. The plane crashed near Ramah, New Mexico. The two couples were apparently killed instantly. The identity of the person piloting the plane at the time of the crash is not known with certainty; both Mr. Murphy and Mr. Benson were licensed pilots. The estates of all four of the deceased are being probated in Missouri.

The plaintiff, ancillary executor of the estate of Mr. and Mrs. Murphy, filed this suit on October 29, 1974, alleging, inter alia, the negligence of William R. Benson as a proximate cause of the wrongful deaths of the Murphys. Previous to the filing of this suit, however, the executor of the Murphy estate filed suit in St. Louis County, Missouri, in June, 1972, pursuant to the Missouri Wrongful Death Act, against the estate of William Benson and the corporation that owned the plane. This suit was voluntarily dismissed by the executor in April of 1975.

The Missouri Wrongful Death Act has a two-year statute of limitations and a limit of $50,000 on damages. This act, Missouri Revised Statutes, § 537.100 (1969), also contains a section which provides in part as...