Gray v. Gray

• Decision Date: 04 September 1934
• Citation: 174 A. 508
• Parties: GRAY v. GRAY.
• Court: New Hampshire Supreme Court

174 A. 508

GRAY

v. GRAY.

Supreme Court of New Hampshire. Carroll.

Sept. 4, 1934.

Transferred from Superior Court, Carroll County; Sawyer, Judge.

Case by Elserce A. Gray against Frank M. Gray. Plaintiff's demurrer to defendant's plea was overruled, and upon plaintiff's exception to that ruling, case was transferred.

Exception overruled.

Case to recover damages for personal injuries alleged to have been caused by the defendant's negligence. The parties are husband and wife, residents in New Hampshire, and the accident happened in Maine.

The defendant filed a special plea that: "Under the laws of the said state of Maine, the plaintiff being the wife of said defendant is barred from maintaining this action." The plaintiff's demurrer to this plea was overruled by Sawyer, C. J., who transferred the case upon exception to that ruling.

Coulombe & Coulombe and Crawford D. Hening, all of Berlin, for plaintiff.

Gay Gleason, of Boston, Mass., and Bernard Jacobs, of Lancaster, for defendant.

PEASLEE, Chief Justice.

I. "If there is no ground of action in the sovereignty where the tort is alleged to have occurred, there is none anywhere. * * * To ascertain the rights resulting from acts done or omitted, attention must be paid to the circumstances under which the events took place; and one of the governing circumstances is the law of the place which characterizes the act. * * * In like manner, when a right is claimed upon acts occurring in another country, courts look to the law of that country not to extend the binding force of a foreign law beyond the territorial limits of the sovereignty to which it belongs, but to ascertain whether the right claimed exists or not. It is not the foreign law, but the rights acquired under it, which are enforced by the courts of another country. And this is true whether the question be one of contract, tort, or status." MacDonald v. Railway, 71 N. H. 448, 450, 451, 52 A. 982, 983, 59 L. R. A. 448, 93 Am. St. Rep. 550.

"If there is a conflict between the lex loci and the lex fori, the former governs in torts the same as in contracts, in respect to the legal effect and incidents of acts, * * * Therefore, whatever would be a defense to this action if it had been brought in the state of Maine is a defense here, although it would not be, if the cause of action had arisen in this state." Beacham v. Proprietors of Portsmouth Bridge, 68 N. H. 382, 40 A. 1066, 73 Am. St. Rep. 607.

For more than a hundred years this theory of the law has been followed in this state, whenever there has been occasion to apply it, or any part of it. Wilson v. Rich, 5 N. H. 455; French v. Hall, 9 N. H. 137, 32 Am. Dec. 341; Henry v. Sargeant, 13 N. H. 321, 40 Am. Dec. 146; Laird v. Railroad, 62 N. H. 254, 13 Am. St. Rep. 564; Leazotte v. Railroad, 70 N. H. 5, 45 A. 1084; Kimball v. Kimball, 75 N. H. 291, 73 A. 408; Young v. American Express Company, 76 N. H. 582, 86 A. 138; Hill v. Railroad, 77 N. H. 151, 89 A. 482, Ann. Cas. 1914C, 714; Stinson v. Railroad, 81 N. H. 473, 128 A. 562; Marshall v. Railroad, 81 N. H. 548, 124 A. 550; Lee v. Chamberlin, 84 N. H. 182, 148 A. 466; Precourt v. Driscoll, 85 N. H. 280, 157 A. 525, 78 A. L. R. 874; Small v. Railroad, 85 N. H. 330, 159 A. 298; Richards v. Richards, 86 N. H. 273, 166 A. 823; Blanchette v. Sargent, 86 N. H.——, 173 A. 383.

It has the final approval of the American Law Institute, Restatement, Conflict of Laws, § 382 et seq. It is supported by all our eminent text-writers upon the subject. Story, Conflict of Laws, § 558; Dicey, Conflict of Laws, 21; Beale, Conflict of Laws, 112; Goodrich, Conflict of Laws, 189; 2 Wharton, Conflict of Laws, § 478 b; Minor, Conflict of Laws, § 194. The American decisions are almost uniformly to the same effect. They are collected in 12 C. J. 452, and cross-references. In three recent cases the precise question here involved has been decided adversely to the plaintiff. Buckeye v. Buckeye, 203 Wis. 248, 234 N. W. 342; Dawson v. Dawson, 224 Ala. 13, 138 So. 414; Howard v. Howard, 200 N. C. 574, 158 S. E. 101.

Against this array of authority it is strenuously argued that the decided cases are distinguishable; that much which has been said is dicta; that the theory is contrary to the English law, unsound in principle, unworkable in many situations, and criticized by a group of present-day writers.

It is true that none of our decisions involve the precise facts here presented, but several of them are indistinguishable in principle. In Beacham v. Proprietors of Portsmouth Bridge, 68 N. H. 382, 40 A. 1066, 73 Am. St. Rep. 607, the defendant was a wrongdoer, and by New Hampshire law the plaintiff was free from contributory fault. But since by Maine law his driving contrary to the Sunday law barred a recovery, he had no remedy here for an accident happening there.

In Lee v. Chamberlin, 84 N. H. 182, 148 A. 466, Richards v. Richards, 86 N. H. 273, 166 A. 823, and Blanchette v. Sargent, 86 N. H. —, 173 A. 383, the defendants were held not to be accountable for ordinary negligence towards guest passengers, although they would be by the law of this state. The different law as to the incidents attaching to their status in Massachusetts and Vermont was held to determine the rights of the parties as to events occurring in those jurisdictions.

In Precourt v. Driscoll, 85 N. H. 280,157 A. 525, 78 A. L. R. 874, the plaintiff was called upon to prove her own freedom from fault, in accordance with the law of Vermont, although by New Hampshire law she would have made a case by merely showing the defendant's negligence.

It is sought to distinguish the present case upon the ground that the act complained of was a delict, in the sense that it was not made innocent by Maine law; and the only reason a recovery could not be had in Maine is the spousal relation of the parties. As the parties are residents in New Hampshire, where spousal incapacity to sue has been abolished, it is argued that the wife's complaint for acts done in Maine may be brought into this state and suit upon it maintained here.

The argument fails to distinguish between status and the incidents which local law attaches to the status. The parties are husband and wife. That status they took with them into Maine. But the incidents of that status are those prescribed by the law of the place where transactions take place. As before pointed out, this rule has frequently been applied in tort actions where other relations were involved.

The guest passenger in an automobile remains such after crossing the state line into Massachusetts. But his recovery here for injuries caused by his host's ordinary negligence depends upon which side of the state line the accident occurred. If it happened in Massachusetts, there could be no recovery, even though the parties are residents here and the suit is in this jurisdiction. Lee v. Chamberlin, supra; Richards v. Richard:;, supra; Blanchette v. Sargent, supra.

Every argument urged in favor of this plaintiff is applicable to these decided cases. The defendant's act is a delict by the lex loci. It would have been actionable if committed here; and, as to persons in general, it is actionable there. But because of the particular relation of the parties, the law there is that there is no cause of action in the special instance. The plaintiff fails here, as those plaintiffs failed, because there is no cause of action at the place where the acts complained of were done.

It should be observed that much of the plaintiff's argument is based upon the assertion that inability to recover in Maine is merely because suits between husband and wife are forbidden. Hence it is urged that recovery may be had by resort to a jurisdiction where such suits are allowed. But an examination of the Maine law shows that the rule is much broader. The theory adopted there is not merely that there is a prohibition of suit, but that the acts complained of do not give rise to any cause of action. There has been no breach of legal duty.

A suit for false imprisonment during coverture was brought by a divorced wife against her former husband. The court said: "The theory upon which the present action is sought to be maintained is, that coverture merely suspends and does not destroy the remedy of the wife against her husband. But the error in the proposition is the supposition that a cause of action or a right of action ever exists in such a case. There is not only no civil remedy but there is no civil right, (luring coverture, to be redressed at any time. There is, therefore, nothing to be suspended. Divorce cannot make that a cause of action which was not a cause of action before divorce. The legal character of an act of violence by husband upon wife and of the consequences that flow from it, is fixed by the condition of the parties at the time the act is done. If there be no cause of action at the time, there never can be any." Abbott v. Abbott, 67 Me. 304, 306, 24 Am. Rep. 27, cited with approval in Sacknoff v. Sacknoff, 131 Me. 280, 161 A. 669. In the latter case a wife was denied recovery from the employer of her husband for injuries caused by the negligence of that employee.

II. The claim that the American rule is opposed to the practice in England is well founded. But the English law upon the subject is by no means clearly defined. All that is here claimed for it is that in a suit for a foreign tort recovery may be had according to English law, unless the lex loci has made the act complained of innocent. This seems to be a splitting of the rule of accountability. The foreign law is noted and applied, in so far as treating the act as innocent is concerned; but if that obstacle is passed, the English law is then used, or may be, to supplement the foreign and give a cause of action. This theory never attained any recognition in this country. "No case in this country has been found where recovery in tort has been allowed for what was not the basis of an action by the lex...