Higgins v. Central N.E. & W.R. Co.

Decision Date06 January 1892
Citation155 Mass. 176,29 N.E. 534
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

W.G. Bassett and J.T. Keating, for appellant.

T.M Brown, for appellee.



The plaintiff's intestate was domiciled in Massachusetts where the plaintiff was appointed administrator. This being the principal administration, the plaintiff succeeded as well to every right of action of the deceased which survived as to his other personal property. Upon the question whether such an administrator takes a right of action by succession from his intestate, it is immaterial that the right arose under the statute of a foreign state rather than under the common law or the statutes of this state; just as the fact that the intestate's chattels or merchandise had been acquired or were held under the statutes of a foreign state, rather than under the law of his domicile, is immaterial upon the question whether such merchandise or chattels pass to the administrator. Such an administrator is entitled to the aid of our courts, if they have jurisdiction of the necessary parties, in collecting and reducing into money the property which he takes by succession, whether goods, chattels, or choses in action. Suits brought to enforce rights of action which the deceased had, and which survived and passed from him to his administrator, differ essentially from those which this court refused to entertain in Richardson v. Railroad Co., 98 Mass. 85, and in Davis v. Railroad Co., 143 Mass. 301, 9 N.E. 815. In Richardson's Case an administrator appointed here sought to enforce in our courts a cause of action which his intestate never had, which had not passed to the administrator by succession, and which the statutes of another state had caused to spring up at the death of the intestate, and had provided might be brought by and in the names of his personal representatives, for the exclusive benefit of his widow and next of kin. In Davis' Case the intestate had a right of action in his life-time, by the common law of Connecticut, where he was injured; but by the law of Connecticut his right of action did not survive, and was extinguished at his death, while a penal action created by statute was substituted for it in that state. In the present case the plaintiff's intestate is alleged to have been instantly killed in Connecticut by the defendant's negligence. It is conceded that the statute of that state makes the defendant liable to pay damages for the injury which caused his death. Can his administrator sue here to recover such damages? The Connecticut statute places in one category "all actions for injury to the person, whether the same do or do not instantaneously result in death," and all actions "to the reputation or to the property, and actions to recover damages for injury to the person of the wife, child, or servant of any person;" and provides that all shall survive to the executor or administrator. Gen.St.Conn. 1888, § 1008. One evident purpose of this statute was to give to actions for injuries resulting in instantaneous death the same incidents as actions which survive. It is grouped with actions which survive for other injuries to the person, and for injuries to reputation and to property, and all are said to survive. The putting in operation of the negligent or unlawful forces which cause instantaneous death is a wrong to the person killed, which, by more or less of appreciable time, precedes his death. If the law of the country where such a wrong is committed gives to the person killed a right of action, and provides that it shall survive to his administrator, there is no difficulty in considering that the deceased had that right of action at the instant when he was vivus et mortuus, and that by express provisions of law it is made to survive and to pass to his administrator. This the statute referred to has plainly attempted to do. As was held in Davis v. Railroad Co., ubi supra, it is the right of each state "to determine by its laws under what circumstances an injury to the person will afford a cause of action." Viewing this statute of Connecticut as a whole, it plainly puts such causes of action as the present upon the footing of personal actions which survive, and which are everywhere considered transitory; that is, they go with the person who has the right of action where he goes, and are enforceable in any form according to its rules of procedure. If they survive, such actions, like other personal estate, are considered to have situs in the place of domicile, and to pass to the administrator there appointed. Viewing the causes of action with which the Connecticut statute deals in connection with the one now sued on, our own statutes of survivorship are similar. There is therefore nothing in the nature of the cause of action, as so far developed, to prevent our courts from entertaining it upon principles generally recognized.

Assuming that the cause of action is one not existing at the common law, but created by the statute of another state, we have seen that it is transitory, and that it survives and passes from the deceased to his administrator. When an action is brought upon it here, the plaintiff is not met by any difficulty upon these points. Whether our courts will entertain it depends upon the general principles which are to be applied in determining the question whether actions founded upon the laws of other states shall be heard here. They require that, in cases of other than penal actions, the foreign law, if not contrary to our public policy or to abtract justice or pure morals, or calculated to injure the state or its citizens, shall be recognized and enforced here if we have jurisdiction of all necessary parties, and if we see...

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