Howard v. Howard

• Decision Date: 01 April 1931
• Docket Number: 99.
• Citation: 158 S.E. 101,200 N.C. 574
• Parties: HOWARD v. HOWARD.
• Court: North Carolina Supreme Court

158 S.E. 101

200 N.C. 574

HOWARD v. HOWARD.

No. 99.

Supreme Court of North Carolina

April 1, 1931

Appeal from Superior Court, Halifax County; Midyette, Judge.

Action by Mrs. E. T. Howard against E. T. Howard. From a judgment dismissing the action as in case of nonsuit, plaintiff appeals.

Affirmed.

This is an action to recover damages for personal injury caused by the alleged negligence of the defendant. The material facts as related by the plaintiff, who is the defendant's wife are substantially as follows:

In 1928-29 the plaintiff lived in Roanoke Rapids and taught there in a public school, receiving $1,320 as her compensation for the scholastic year. In the summer of 1929 the defendant attended a summer school in Madison Wis., and in August he met the plaintiff in Toronto, Canada, for their return by automobile to Roanoke Rapids. The defendant owned the car. The first night they stopped at Olean, N. Y., and on the second day they ate supper at Scranton, Pa. Just before dark they left Scranton and arrived at Dover, N. J., about midnight. The defendant was driving about 40 miles an hour in the residential section of Dover on a paved street in which there were street car tracks. A New York-Buffalo bus was in front of his car. He drove down the hill around a sharp curve at the rate of about 40 miles an hour. He applied the brakes and struck the car line. The sedan skidded against an electric light pole, and the plaintiff was seriously injured; her nose and her jawbone were broken and her "whole face was a solid bruise." She suffered other injuries, and was one week in a hospital in Dover. She had no control over the operation of his car. There was evidence in corroboration.

Parker & Allsbrook, of Roanoke Rapids, for appellant.

George C. Green, of Weldon, for appellee.

ADAMS J.

The suit is in tort, the accident occurred in New Jersey, and the defendant has pleaded the laws of that state in bar of recovery.

The actionable quality of the defendant's conduct in inflicting injury upon the plaintiff must be determined by the law of the place where the injury was done; that is, the measure of the defendant's duty and his liability for negligence must be determined by the law of New Jersey. Goodrich on Conflict of laws, 188; Hancock v. Telegraph Co., 142 N.C. 163, 55 S.E. 82; Harrison v. R. Co., 168 N.C. 382, 84 S.E. 519; Hipps v. R. Co., 177 N.C. 472, 99 S.E. 335; Smith v. So. Ry., 87 S.C. 136, 69 S.E. 18. If an act does not give rise to a cause of action where it is committed, the general rule is that the party who commits the act will not be liable elsewhere, and in such event it is immaterial that a cause of action would have arisen if the wrong had been done in the jurisdiction of the forum. Minor on Conflict of Laws, 479, § 194. "If under the lex loci there be a right of action, comity permits it to be prosecuted in another jurisdiction; but if under the lex loci no right of action is created or exists, then it exists nowhere and can be prosecuted in no jurisdiction." Pendar v. American Machine Co., 35 R.I. 321, 87 A. 1, 2, L. R. A. 1916A, 428. This statement of the law is generally accepted. O'Reilly v. R. Co., 16 R.I. 388, 17 A. 171, 906, 19 A. 244, 5 L. R. A. 364, 6 L. R. A. 719; Needham v. R. Co., 38 Vt. 294; Davis v. R. Co., 143 Mass. 301, 9 N.E. 815, 58 Am. Rep. 138; Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N.E. 69; Boston & Maine Railroad v. Hurd (C. C. A.) 108 F. 116, 56 L. R. A. 193, annotation; 5 R. C. L. 1038. Compare Wall v. Hoskins, 27 N.C. 177. The law of the forum governs as to matters affecting the remedy, the rules of evidence, the burden of proof, and exceptions within the scope of private international law. So. Ry. Co. v. Decker, 5 Ga.App. 21, 62 S.E. 678; Hill v. C. R. & L. Co., 21 Ga.App. 104, 93 S.E. 1027; Armstrong v. Best, 112 N.C. 59, 17 S.E. 14, 25 L. R. A. 188, 34 Am. St. Rep. 473.

It may be said, then, that the plaintiff's asserted right to maintain this action is dependent upon the laws of New Jersey. The action is personal, not real; and, if it can be maintained in New Jersey, being transitory and not local, it may be prosecuted here, because by personal process the defendant was brought within the jurisdiction of the court. But it is otherwise if on the question presented the common law prevails in the foreign state. Dennick v. R. Co., 103 U.S. 11, 26 L.Ed. 439.

The law of another state with respect to a particular question may be proved, not only by witnesses learned in the laws of that state, but by statutes printed by authority thereof and by the decisions and opinions of the court of last resort. The decisions of the highest court of another state, when offered in evidence, must, of course, be interpreted by the trial court and not by the jury. So likewise as to statutes. C. S. § 1749; Harrison v. R. Co., supra. The unwritten or common law of another state may be proved as a fact by oral evidence, but, in the absence of proof to the contrary, it is to be presumed that the common law is there in force. C. S.§ 1749; Lassiter v. R. Co., 136 N.C. 89, 48 S.E. 642, 1 Ann. Cas. 456; Miller v. R. Co., 154 N.C. 441, 70 S.E. 838; 1 Chamberlayne's Law of Evidence, sec. 584 et seq.

To rebut the presumption that the common law prevails in New Jersey, the plaintiff, subject to the defendant's exception, introduced certain statutes of that state relating to the rights of married women. The defendant's exception is addressed to the failure of the plaintiff to set forth in his complaint or to plead any of the statutes on which she relies.

The law of another state is as much a "question of law" as is the law of our own state. Our courts are presumed to have judicial knowledge of our public laws but not of the laws of other states. We do not take judicial notice of the statutes of another state. Foreign laws and statutes must be pleaded and proved as a fact. Hooper v. Moore, 50 N.C. 130; Lassiter v. R. Co., supra; Hall v. R. Co., 146 N.C. 345, 59 S.E. 879; McIntosh's Practice and Procedure, 355. By amendment to the complaint, the plaintiff alleged that the laws of the state of New Jersey permit a wife to sue her husband for tort as if she were unmarried.

Waiving any objection to the sufficiency of this allegation, we are of opinion that the statutes offered in evidence do not confer authority upon the plaintiff to maintain the present action. Sections 12a and 12b, pp. 3236, 3237, 3 Comp. St. N. J. 1910, authorize a married woman to bring suit for torts committed against her person or her separate property without joining her husband therein. These statutes obviously refer to suits, not against her husband, but against other persons, because it is further provided that his failure to join in the wife's action shall not prevent his right to maintain a separate action therefor. Peskowitz v. Kramer, Inc., 105 N. J. Law, 415, 144 A. 604. If a husband is sued by his wife, it can hardly be said that he may join in her suit for recovery against himself. The same reasoning applies to sections 124--17 and 124--18, pp. 1838, 1839, 1 Comp. St. Supp. N. J. 1924, chapter 232 of the Laws of 1912 (P. L. p. 416) and P. L. 1915, p. 27. The statutes relating to the right of married women to bind themselves by contract, or to retain as their separate property their wages, their earnings, and the property owned by them at the time of their marriage or thereafter acquired, or to convey or devise their property, are not decisive of the question under consideration. We are likewise of opinion that the decisions of the New Jersey courts offered in evidence at the trial do not establish the right to maintain this action.

In Von Laszewski v. Von Laszewski, 99 N. J. Eq. 25, 133 A. 179, determined in 1926, the Court of Chancery made this statement: "Neither at law nor in equity can an action be maintained by a wife against her husband for personal injuries. In equity a bill filed by a wife against her husband may be maintained for the protection or restoration of her separate estate; but, aside from certain relief in matrimonial causes based on fraud or want of assent in the matrimonial contract, neither in England nor in this country except by statute, has the right of a married woman to maintain an action against her husband either at law or in equity been extended to the protection of personal as distinguished from property rights. As to our Married Woman's Act (3 Comp. St. 1910, p. 3222), it is sufficient to say that, in the absence of a clear manifestation of legislative intent to effect so radical a change in our long-established rules in this respect, legislative purpose should not be declared by implication. ...