Keep v. National Tube Co.

• Decision Date: 20 May 1907
• Parties: KEEP v. NATIONAL TUBE CO.
• Court: U.S. District Court — District of New Jersey

154 F. 121

KEEP v. NATIONAL TUBE CO.

United States Circuit Court, D. New Jersey.

May 20, 1907

Morton Barrows, for plaintiff.

Sherrerd Depue, for defendant.

LANNING District Judge.

The plaintiff is a citizen of Minnesota, and has been duly appointed in that state administratrix of the estate of Alfred Keep, deceased. He died on February 20, 1905, from injuries received in that state by the explosion of a carbonic acid gas cylinder, while engaged in the service of his employer, to whom the defendant sold the cylinder. The averment is that the cylinder was defective, and this action was commenced January 2, 1907, under the provisions of a Minnesota statute reading as follows:

'When death is caused by the wrongful act or omission of any party or corporation the personal representative of the deceased may maintain an action if he might have maintained an action had he lived for an injury caused by the same act or omission by which the death was caused. But the action shall be commenced within two years after the act or omission by which the death was caused. The damages therein cannot exceed five thousand dollars, and the amount received is to be for the exclusive benefit of the widow and next of kin, to be distributed to them in the same proportion as the personal property of deceased persons. Provided that any demand for the support of the deceased and funeral expenses duly allowed by the probate court shall be first deducted and paid.'

The defendant's demurrer presents for consideration two questions: First, assuming that a cause of action is set forth in the declaration, will this court take jurisdiction of it? And, second, do the facts stated in the declaration constitute a cause of action against the defendant?

First. It is conceded that the action is not founded on any right existing under the common law, and that such right, if any there be, is purely the creature of the Minnesota statute. It is further conceded that, if there be a right of action, it can be enforced in New Jersey only on the principles of comity, and that courts decline to enforce rights created by foreign statutes opposed to the domestic policy of the forum. The argument of the defendant's counsel is that the Minnesota statute is opposed to the public policy of New Jersey, as that policy is expressed in the act of her Legislature, the material sections of which reads as follows:

'Section 1. That whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

'Sec. 2. That every such action shall be brought by and in the names of the personal representatives of such deceased person and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person, provided that every such action shall be commenced within twelve calendar months after the death of such deceased person.'

The contention is that the Minnesota statute is repugnant to the domestic policy of the state of New Jersey in three respects: (1) Because, under the Minnesota statute, the damages are limited to $5,000, while under the New Jersey statute there is no arbitrary limitation of the amount that may be recovered; (2) because, under the Minnesota statute, any demand for the support of the deceased and his funeral expenses, duly allowed by the probate court, shall be first deducted and paid from the amount recovered; and (3) because, under the Minnesota statute, the action is required to be commenced within two years after the act or omission by which the death was caused, while under the New Jersey statute the action must be commenced within twelve calendar months after the death of the deceased person.

The first two of these objections are easily disposed of. With a given state of facts, the amount recoverable under the Minnesota statute can never exceed what, with the same facts, might be recovered under the New Jersey statute, while in some cases it might, by reason of the $5,000 limitation, be less. The provisions of the Minnesota statute on which these objections are based do not in any wise contravene any principle of the domestic policy of New Jersey. The third objection demands fuller consideration.

In Haggerty v. Central Railroad Company, 31 N.J.Law, 350, Chief Justice Beasley, speaking of the New Jersey statute, said:

'The design of the statute cannot be mistaken. It is entirely and in the highest sense remedial in its nature. Its object was to abolish the harsh and technical rule of the common law actio personalis moritur cum persona. The rule had nothing but prescriptive authority to support it. It was a defect in the law, and this statute was designed to remove that defect. It is therefore entitled to receive the liberal construction which appertains to remedial statutes. The mischief to be redressed was the nonexistence of a remedy for an admitted wrong. It is clearly, therefore, the duty of the court to advance the remedy.'

In Murphy v. Board of Chosen Freeholders, 57 N.J.Law, 245, 251, 31 A. 229, the act was construed to be applicable to the defendant, a public corporation, created only for governmental purposes; the Legislature having, by another act, made such corporations liable for damages resulting from neglect to repair the bridges committed to their charge. The argument in behalf of the defendant in that case was that the word 'corporation,' used in the New Jersey statute, had no application to, and did not include within its meaning, a public, municipal corporation; but the court held that the act was a remedial one and should be construed liberally for the suppression of the mischief existing in the common law and the advancement of the remedy. It will be observed, then, that the New Jersey courts have not adopted a narrow construction of the New Jersey statute. They have held the policy of the state, as expressed in her statute, to be a liberal one.

So, too they recognize the rule of comity in enforcing rights created by the statutes of other states. The Pennsylvania statute, concerning the recovery of damages resulting from death caused by wrongful act, confers the right of action on the widow or other relatives of the deceased; but, notwithstanding the New Jersey statute confers the right on the personal representative of the deceased, the Supreme Court of New Jersey, in Lower v. Segal, 59 N.J.Law, 68, 34 A. 945, said:

'The statute of Pennsylvania is, however, not repugnant to our domestic policy, as is evinced by our having modified the common law upon like principles in the interest of our own citizens. It is therefore the duty of our courts to recognize and enforce the rule of the sister commonwealth.'

In Usher v. Railroad Co., 126 Pa. 206, 17 A. 597, 4 L.R.A. 261, 12 Am.St.Rep. 863, it was held that an action brought in Pennsylvania, by the widow of one who had been killed in a railroad accident on the defendant's railroad in New Jersey, could not be maintained; but the opinion indicates that, if the action had been instituted by the personal representative of the deceased person, it would, on principles of comity, have been sustained. New Jersey and Pennsylvania, therefore, will doubtless each enforce the right created by the statute of the other.

The rule established by the weight of authority is that, if a statute of the forum creates a right of action for damages resulting from death caused by wrongful act, neglect, or default, a foreign statute creating such right will be enforced, if the two statutes be not so dissimilar as to establish substantially different policies. It is not necessary that the statutes shall be precisely the same. Mere dissimilarities as to the persons in whose names actions may be brought, or in the amounts recoverable, will not defeat jurisdiction. Substantial similarity is all that is required. Texas & Pacific Railway Co. v. Cox, 145 U.S. 593, 12 Sup.Ct. 905, 36 L.Ed. 829; Boston & M.R. Co. v. McDuffey, 79 F. 934, 25 C.C.A. 247; Davidow v. Pennsylvania R. Co. (C.C.) 85 F. 943; Stewart v. B. & O. Railroad Co., 168 U.S. 445, 18 Sup.Ct. 105, 42 L.Ed. 537; Northern Pacific Railroad Co. v. Babcock, 154 U.S. 190, 14 Sup.Ct. 978, 38 L.Ed. 958; Wooden v. W.N.Y. & P.R.R. Co., 126 N.Y. 103, 26 N.E. 1050, 13 L.R.A. 458, 22 Am.St.Rep. 803; Wharton's Conflict of Laws, Sec. 480a et seq.

The record of this case shows, however, that this action was commenced more than 12 months after the death of the plaintiff's intestate, though within 2 years from that time. The defendant contends that no action can be maintained on the Minnesota statute in New Jersey after the expiration of the period of 12 months limited in the New Jersey statute. It is true that actions are barred not by the lex loci, but by the lex fori; but the limitation of time within which an action may be instituted under the Minnesota statute, or that within which it may be instituted under the New Jersey statute, is so...