Kyle T. Brown, Admr. v. Gibson Perry, Jr.,

• Decision Date: 04 November 1931
• Citation: 156 A. 910,104 Vt. 66
• Parties: KYLE T. BROWN, ADMR. v. GIBSON PERRY, JR., ET AL
• Court: Vermont Supreme Court

156 A. 910

104 Vt. 66

KYLE T. BROWN, ADMR. v. GIBSON PERRY, JR., ET AL

Supreme Court of Vermont

November 4, 1931

May Term, 1931.

Death---New Hampshire Statute Relating to Wrongful Death---Judicial Notice Not Taken of Interpretations of Statute of Another State by Its Courts---Interpretations of Foreign Law Not Pleaded or Made Part of Record Unavailable on Motion To Dismiss Declaration---Action for Wrongful Death under New Hampshire Statute in Vermont by Vermont Ancillary Administrator---Courts---Comity---Discretion of Court---Lex Loci Delicti as Applying to Claims for Wrongful Death---Enforcement in One State of Penal Statute of Another---Limitation of Doctrine of Comity---Effect of Difference in Elements of Damage---Transitory Actions---Effect of Difference in Foreign Statute over Vermont Law Relating to Right of Action for Wrongful Death---Parties---Jurisdiction---G. L. 3306, 3307.

1. Action under New Hampshire Public Laws, 1926, Ch. 302, 9--14 for wrongful death, held to be based on Lord Campbell's Act and to provide new right of recovery to be vested in administrator for beneficiaries therein named.

2. Interpretations of New Hampshire statute by New Hampshire court are not subject of judicial notice in Vermont.

3. Where New Hampshire cases, or purport of them, interpreting New Hampshire statute, providing action for wrongful death were not alleged in declaration, nor made part of record in any way, they were not subject for consideration upon motion to dismiss such declaration in suit in Vermont under such New Hampshire statute.

4. Action under New Hampshire statute for wrongful death of plaintiff's intestate in that State may be maintained by ancillary administrator appointed in Vermont against defendants found in Vermont.

5. Whether or not principles of comity require courts of Vermont to entertain actions brought under statutes of other states is not matter resting in discretion of trial court, but one of law.

6. In claims for wrongful death, nature of right of action and person in whom it is invested are fixed by lex loci delicti.

7. Courts of one state will not enforce penal statute of another.

8. Comity never requires court to give effect to law of another state which conflicts with its own.

9. General rule is that when action is transitory, and right has become fixed and liability has been incurred in state where transaction occurred, such right of action may be pursued and such liability enforced in any court having jurisdiction of subject-matter and parties, provided statute under which cause of action arose is not inconsistent with public policy of state where cause of action is sought to be enforced.

10. Court should not, in otherwise proper cases, refuse to apply law of foreign state, however unlike its own, unless contrary to pure morals or abstract justice, or its enforcement would be of evil example and harmful to its people.

11. Statute of another state is not contrary to public policy merely because it is materially different from state in which it is sought to be enforced, or because latter has no statute on subject.

12. Action under statute allowing recovery for wrongful death is transitory and may be maintained wherever wrongdoer may be found.

13. Difference in elements of amount of damages does not create such divergence of public policy that action based upon wrongful death statute of one state will for this reason be denied enforcement in courts of another, although there is no obligation to apply rule of damages repugnant to those established in latter jurisdiction, hence fact that New Hampshire statute for wrongful death permits recovery for pain and suffering of deceased, in addition to pecuniary loss of next of kin, while Vermont statute limits recovery to latter item, does not preclude maintenance of action under New Hampshire statute in courts of Vermont.

14. New Hampshire statute, as interpreted by courts of that state making operation of motor vehicle by unlicensed driver wrong against third person and causal in strictest sense, and rendering such offender accountable for damage resulting from his unlawful act, held to relate to right of action, and not to remedy; and, although differing from Vermont law, in that in this State violation of statute is negligence only where there is proximate causal connection between it and injury it is not contrary to pure morals or abstract justice, nor would its enforcement in this State be of evil example or harmful.

15. When jurisdiction depends on party, it is party named in record.

16. In action for wrongful death under New Hampshire statute against defendants found in Vermont, by Vermont ancillary administrator, held that action was properly brought in county where latter resided.

17. Actions for recovery of debts and claims mentioned in G. L 3306, required by G. L. 3307 to be brought in same towns and counties and before same courts as they would have been if brought by deceased person while living, held to relate to such as accrued to deceased during his lifetime and are prosecuted in his right for benefit of his estate, and not to those which are based upon rights not coming into existence, until his death, which are independent of any rights he had while living, and in prosecution of which administrator acts only as trustee or agent for statutory beneficiaries.

ACTION OF TORT by ancillary administrator appointed in Caledonia County, but resident in Essex County, where action was brought, against defendants resident in Orange County, to recover for death of plaintiff's intestate, which occurred in New Hampshire, under statute of latter state providing right of action for wrongful death. Defendants appeared specially, and moved to dismiss on grounds of lack of jurisdiction. Trial by court at the October Term, 1930, Essex County, Graham, J., presiding. Motion granted, and cause dismissed. The plaintiff excepted. The opinion states the case.

Judgment reversed, and cause remanded.

Searles & Graves for the plaintiff.

Shields & Conant and Raymond U. Smith (Concord, N.H.) for the defendants.

Present: POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ.

OPINION

MOULTON

The plaintiff's intestate was killed at Haverhill, Grafton County, New Hampshire, in an automobile accident, caused by the alleged negligence of the defendants. He was a resident of Monroe, in that county. The defendants are residents of Newbury, Orange County, Vermont. The plaintiff was appointed administrator by the probate court for Grafton County, New Hampshire, and later by the probate court for the District of Caledonia, Vermont. The plaintiff himself is a resident of Lunenburg, in Essex County, Vermont. This action has been brought under the statute of New Hampshire (Pub. Laws, 1926, Ch. 302, § § 9-14), to recover damages caused by the death of the intestate for the benefit of his next of kin. It is returnable to the Essex county court.

The defendants appeared specially and moved to dismiss the action. The motion was granted and the plaintiff excepted. There are three questions in this case:

1. Is the action, the cause of which has arisen under a statute of New Hampshire, to be maintained by the plaintiff, in his capacity as administrator appointed by a Vermont probate court?

2. If so, is the New Hampshire statute to be enforced in the courts of this State, upon principles of comity?

3. If the foregoing questions are answered in the affirmative, is the action properly brought in Essex County?

1. The maxim of the common law, " Actio personalis moritur cum persona," has been largely abrogated by legislation in the various jurisdictions. 8 R. C. L. 722. Statutes providing for the recovery of damages for wrongful death are, generally speaking, of two kinds: So-called "survival acts" which provide that the decedent's right of action shall survive to his representative for the benefit of his estate; and those patterned upon Lord Campbell's Act (9 and 10 Vict.), by which a new right of recovery, entirely independent and unrelated to any which the deceased may have had during his lifetime, is vested either in certain designated beneficiaries or in the executor or administrator for their benefit. In the former class, the right of recovery for the death is as for one of the consequences of the wrong inflicted upon the decedent; the amount is determined from the standpoint of the deceased, and not from that of the statutory beneficiaries; and the measure is the value of the life to the decedent. In the latter class the right of recovery comes into being upon the death and is different in theory, quality, and object from every other such right. The recovery is not based upon the injury suffered by the decedent's estate, but its foundation is the loss sustained by certain persons designated as beneficiaries of the recovery. Kling v. Torello, 87 Conn. 301, 87 A. 987, 988, 46 L. R. A. (N. S.) 930; Needham, Admr. v. G. T. Ry. Co., 38 Vt. 294, 302, et seq.; Legg, Admr. v. Britton, 64 Vt. 652, 657, 658, 24 A. 1016; May Coal Co. v. Robinette, 120 Ohio St. 110, 165 N.E. 576, 578, 64 A. L. R. 441.

The defendants insist that the New Hampshire statute, upon which this action is based, is a survival act. The first paragraph of the statute, which is set out in full in the plaintiff's declaration, provides that: "Actions in tort for physical injuries to the person * * * * and the causes of such actions, shall survive to the extent, and subject to the limitations set forth in the five following sections and not otherwise." The next paragraph provides for the prosecution by an administrator of an action commenced during the lifetime of the deceased party. Later sections upon which this action is based, provide for the commencement of such an action by the...