Issendorf v. Olson

• Decision Date: 08 February 1972
• Docket Number: No. 8775,8775
• Citation: 194 N.W.2d 750
• Parties: Clifford ISSENDORF, Plaintiff and Appellant, v. Michael OLSON, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 750

194 N.W.2d 750

Clifford ISSENDORF, Plaintiff and Appellant, v. Michael OLSON, Defendant and Respondent.

Civ. No. 8775.

Supreme Court of North Dakota.

Feb. 8, 1972.

Syllabus by the Court

1. For the reasons stated in this opinion, the significant-contacts rule as the choice-of-law rule is adopted to be applied in tort litigation in this State when the wrong complained of occurred in a foreign state, and, accordingly, the traditional rule for determining the choice of law in tort cases, Lex loci delicti, the law of the place where the wrong occurred, is abandoned.

2. 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.

3. Applying the significant-contacts approach to the choice of law in this case, we conclude that the trial court was correct in instructing the jury on the North Dakota law of contributory negligence and assumption of risk and that he was not in error in refusing to instruct the jury on the Minnesota law of comparative negligence, notwithstanding that the accident out of which this action arose occurred on a highway in the state of Minnesota. Accordingly, the trial court was correct in denying the motion for new trial.

Lamb & Schaefer, Moorhead, Minn., and Wegner, Fraase & Cooke, Fargo, for plaintiff and appellant.

Wattam, Vogel, Vogel & Peterson, Fargo, for defendant and respondent.

ERICKSTAD, Judge.

The basic issue we are asked to determine in this case is whether the trial court erred in refusing to instruct a North Dakota jury on the Minnesota law of comparative negligence in a personal injury action brought by a resident of North Dakota who, as a passenger in an automobile owned and operated by a resident of this state, received personal injuries in an accident which occurred on a highway in the state of Minnesota. For the reasons stated in this opinion, we conclude that the trial court did not err in refusing to so instruct the jury.

The action was initiated in Cass County district court by summons and complaint dated June 6, 1968. Note of issue, dated March 10, 1969, signed by counsel for the plaintiff, discloses that issues of law and fact were joined as of June 26, 1968. A motion on the part of the plaintiff to amend his complaint to increase the amount alleged to have been expended for medical expenses, and to add a paragraph to the complaint relative to permanent injuries and damages resulting therefrom, was noticed for hearing May 1, 1969. By order dated September 12, 1969, the Honorable Roy K. Redetzke granted the motion to amend the complaint and set the case over to the next regular term of the district court.

By motion dated September 11, 1969, the plaintiff moved to strike paragraph 2 of the defendant's answer, which asserted that at the time of the accident the plaintiff was a guest-passenger riding in the defendant's automobile, and that under the applicable North Dakota Guest Statute the plaintiff was entitled to recover nothing. This motion to strike was also granted by order dated September 12, 1969.

The case came on for trial before the Honorable Ralph B. Maxwell, another judge of the district court of Cass County, in November 1969. The trial judge, in instructing the members of the jury, advised them of the defenses of contributory negligence and assumption of risk pleaded by the defendant and their applicability under North Dakota law. He did this over the objection of the plaintiff, who contended that the court should instruct the jury on the basis of the Minnesota statute on comparative negligence which became effective on July 1, 1969, in any action the trial of which commenced after July 1, 1969. It was the plaintiff's contention that the separate defenses of contributory negligence and assumption of risk as defined in the trial court's instructions were incompatible with the comparative-negligence statute of Minnesota.

Ruling on a motion for new trial following the jury's verdict of dismissal of the plaintiff's action, the court denied the motion on the ground that that part of the Minnesota statute which establishes when the law should become effective is remedial only and therefore not binding upon a court of this State.

The pertinent Minnesota statute reads:

'Section 1. (604.01) Comparative negligence; contributory negligence; effect. Subdivision 1. Scope of application. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. The court may, and when requested by either party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence attributable to the person recovering. When there are two or more persons who are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each, provided, however, that each shall remain jointly and severally liable for the whole award.

'Sec. 2. This act shall be effective in any action the trial of which is commenced after July 1, 1969.' Session Laws of Minnesota for 1969, Chapter 624, H. F. No. 380, pages 1069, 1070.

In 1957, before the advent of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963), a New York court of appeals decision which established the significant-contacts or center-of-gravity rule as the choice-of-law rule to be applied in tort litigation, our court in Pearson v. Erb, 82 N.W.2d 818 (N.D.1957), applied the traditional rule for determining choice of law in tort cases, Lex loci delicti, the law of the place where the wrong occurred.

In Pearson, this court said:

'The accident having happened in the State of Minnesota, the liabilities of the parties must be determined according to laws of that state. Cyclopedia of Automobile Law and Practice, Blashfield, Volume 9, Section 5791.

"The question whether conduct which caused damage was negligent, so as to make the one guilty of it liable for a wrong, is determined by the law of the place where the act or omission claimed to be the cause of the damage took place.' The Conflict of Laws, Beale, Volume 2, Section 379.1.

"Whether contributory negligence of the plaintiff is a defence, in whole or in part, to an action for a negligent injury depends upon the law of the place of the injury.' The Conflict of Laws, Beale, Volume 2, Section 385.1.' Pearson v. Erb, 82 N.W.2d 818, 821, 822 (N.D.1957).

Respect for the judicial doctrine of Stare decisis no doubt caused Judge Fuld in Babcock to explain the necessity for a new choice-of-law rule. We quote him:

'The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court * * *, has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort. * * * It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law. * * * Although espoused by such great figures as Justice HOLMES * * * and Professor Beale * * *, the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. 'The vice of the vested rights theory', it has been aptly stated, 'is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved'. (Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L.J. 468, 482--483.) More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. It is for this very reason that, despite the advantages of certainty, ease of application and predictability which it affords * * *, there has in recent years been increasing criticism of the traditional rule by commentators and a judicial trend towards its abandonment or modification.' Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 746, 191 N.E.2d 279, 281, 95 A.L.R.2d 1 (1963).

In breaking with the past, Judge Fuld said:

'Justice, fairness and ...