Lauria v. E.I. Du Pont De Nemours & Co., Inc.

• Decision Date: 27 February 1917
• Citation: 241 F. 687
• Parties: LAURIA v. E.I. DU PONT DE NEMOURS & CO., Inc.
• Court: U.S. District Court — Eastern District of New York

241 F. 687

LAURIA v. E.I. DU PONT DE NEMOURS & CO., Inc.

United States District Court, E.D. New York.

February 27, 1917

This is a motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action is brought by the plaintiff, as administratrix for the death of her husband, caused, as alleged, by negligence on the part of the defendant. The deceased was employed by the defendant in its plant at Hopewell, Va., and was killed while operating an electric car by striking his head against an overhead beam. The complaint alleges that the deceased is survived by his widow and his father, both residents of Richmond county, where administration was taken out. The defendant is a Delaware corporation. The action is based on sections 2902-2904 of the Virginia Code:

'Sec 2902. Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, or to proceed in rem against said ship or vessel, or in personam against the owners thereof or those having control of her and to recover damages in respect thereof, then, and in every such case, the person who, or corporation or ship or vessel which, would have been liable, if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

'Sec. 2903. * * * The jury in any such action may award such damages as to it may seem fair and just, not exceeding ten thousand dollars, and may direct in what proportion they shall be distributed to the wife, husband, or child, or, if there be no wife, husband, or child, then to the parents, brothers, and sisters of the deceased. But nothing in this section shall be construed to deprive the court of the power to grant new trials as in other cases.

'Sec. 2904. The amount recovered in any such action shall be paid to the personal representative, and after the payment of costs and reasonable attorney's fees, shall be distributed by such personal representative to the wife, husband, and child, or if there be no wife, husband, or child, then to the parents, brothers, and sisters of the deceased in such proportions as the jury may have directed, or, if they have not directed, according to the statute of distributions, and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, child, parent, brother, or sister, the amount so received shall be assets in the hands of the personal representative to be disposed of according to law. This and the preceding section are subject to this proviso: Where there is a widowed mother of the deceased and a widow but no children of the deceased, the amount recovered shall be divided between the mother and the widow in such portions as the jury or the court may direct.'

McCombs, Wellman, Smyth & Ryan, of New York City (Herbert C. Smyth and Frederic C. Scofield, both of New York City, of counsel), for plaintiff.

William H. Button, of New York City, for defendant.

VEEDER District Judge (after stating the facts as above).

The defendant contends that the Virginia statute under which the right of action accrued is so unlike the statutory right of action which prevails in this state that the action should not be entertained here. The motion has been argued upon the theory, set forth in Leonard v. Columbia Steam Navigation Co., 84 N.Y. 48, 38 Am.Rep. 491, that the exercise of jurisdiction depends upon the similarity of the Virginia statute to the statutory remedies prescribed by the statutes of this state for death, namely, the Workmen's Compensation Law (Laws 1914, c. 41 (Consol. Laws, c. 67)), and the general right of action existing by virtue of sections 1902-1908 of the Code of Civil Procedure. The dissimilarity with respect to the Workmen's Compensation Law is obvious, but inconclusive. Although the remedy provided by that statute is, so far as it goes, exclusive of all other rights or remedies for the death of employes resulting from injuries (Shanahan v. Monarch Engineering Co., 219 N.Y. 469, 114 N.E. 795), still that act, which applies in terms irrespective of fault, extends an option to the legal representative in case of death to sue for damages under the Code provision if the employer fail to secure compensation as required by the act. For all cases not falling within the Compensation Law the Code provision is the existing remedy; that is to say, the right of action for wrongful death depends upon that provision. If, therefore, the Virginia statute is to be compared with any local statute, it must be compared with the latter.

Upon such comparison the defendant asserts that the following substantial differences appear: The Virginia statute (1) permits the recovery of exemplary damages; (2) in default of wife and next of kin the recovery becomes part of the estate of the deceased to be disposed of according to law; (3) the jury may direct in what proportion the damages shall be distributed among the beneficiaries.

The motion could be disposed of on the short ground that none of these distinctions applies in the pending action. For the purposes of the issue raised by this motion, it is the particular application sought to be made of the statute that controls; it is the cause of action set up in the complaint, not the ultimate possibilities of the foreign statute. Zeikus v. Florida East Coast Ry. Co., 153 A.D. 349, 138 N.Y.Supp. 478. Exemplary damages are not recoverable under this complaint. While the complainant need not necessarily claim such damages by that name in the complaint, still, in Virginia, as here, facts showing the right to recover such damages must be alleged. Wood v. Bank, 100 Va. 306, 40 S.E. 931. No such facts are alleged in this complaint. Furthermore, it appears from the complaint that the deceased left surviving him his wife and his father. By the express terms of the statute, therefore, the wife would take the entire amount recovered.

I do not concede, however, the validity of the assumption that the exercise of jurisdiction in such cases is dependent upon the existence in the forum of a statute similar to the foreign statute under which the right of action arose. The general rule is that actions for personal torts are transitory in their nature and may be brought wherever jurisdiction of the wrongdoer can be obtained. Whenever such a right of action has become fixed and legal liability incurred, whether at common law or under a statute, it will be enforced in another state unless there is a good reason for refusing to enforce it. If statutory, it will be enforced, not because of the existence of the statute, which of course does not extend ex proprio vigore beyond the boundaries of the state in which it is enacted, but because it is a right which the plaintiff legitimately acquired and which still belongs to him. The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation which, like other obligations, follows the person, and may be enforced wherever the person may be found. The recognized grounds upon which the court resorted to may properly decline to entertain jurisdiction are: That the action is penal; that it contravenes some established and important policy of the state; that the local judicial procedure is inadequate to do substantial justice in the premises. Dennick v. Railroad Co., 103 U.S. 11, 26 L.Ed. 439; Flash v. Conn, 109 U.S. 371, 3 Sup.Ct. 263, 27 L.Ed. 966; Texas & Pacific R. Co. v. Cox, 145 U.S. 593, 12 Sup.Ct. 905, 36 L.Ed. 829; Huntington v. Attrill, 146 U.S. 657, 13 Sup.Ct. 224, 36 L.Ed. 1123; Northern Pacific R.R. Co. v. Babcock, 154 U.S. 190, 14 Sup.Ct. 978, 38 L.Ed. 958; Stewart v. Baltimore & Ohio R.R. Co., 168 U.S. 445, 18 Sup.Ct. 105, 42 L.Ed. 537; Barrows v. Kane, 170 U.S. 100, 18 Sup.Ct. 526, 42 L.Ed. 964; Slater v. Mexican National R.R. Co., 194 U.S. 120, 24 Sup.Ct. 581, 48 L.Ed. 900; Boston & Maine R.R. Co. v. McDuffey, 79 F. 934, 25 C.C.A. 247; Missouri Pacific Ry. Co. v. Larussi, 161 F. 66, 88 C.C.A. 230; St. Bernard v. Shane, 220 F. 852, 135 C.C.A. 399; Herrick v. Minneapolis & St. Louis Ry. Co., 31 Minn. 11, 16 N.W. 413, 47 Am.Rep. 771; Powell v. Great Northern Ry. Co., 102 Minn. 448, 113 N.W. 1017; Whitlow v. Nashville Ry. Co., 114 Tenn. 344, 84 S.W. 618, 68 L.R.A. 503; Rick v. Saginaw Bay Towing Co., 132 Mich. 237, 93 N.W. 632, 102 Am.St.Rep. 422; Higgins v. Central New England R.R. Co., 155 Mass. 176, 29 N.E. 534, 31 Am.St.Rep. 544; Walsh v. New York & N.E.R.R. Co., 160 Mass. 571, 36 N.E. 584, 39 Am.St.Rep. 514; Walsh v. Boston & Maine R.R. Co., 201 Mass. 527, 88 N.E. 12; Hanlon v. Frederick Leyland & Co., 223 Mass. 438, 111 N.E. 907, L.R.A. 1917A, 34; Nelson v. Chesapeake & Ohio R.R. Co., 88 Va. 971, 14 S.E. 838, 15 L.R.A. 583; Knight v. West Jersey R.R. Co., 108 Pa. 250, 56 Am.Rep. 200; Southern Ry. Co. v. Decker, 5 Ga.App. 21, 62 S.E. 678; Burns v. Grand Rapids & I.R.R., 113 Ind. 169, 15 N.E. 230; Morris v. Chicago, R.I. & P. Ry. Co., 65 Iowa, 727, 23 N.W. 143, 54 Am.Rep. 39; Bruce's Adm'r v. Cincinnati R.R. Co., 83 Ky. 174; Texas & New Orleans R.R. Co. v. Miller, 60 Tex.Civ.App. 627, 128 S.W. 1165; McLeod v. C. & P.R.R. Co., 58 Vt. 727, 6 A. 648.

The limitation suggested in Leonard v. Columbia Steam Navigation Co., 84 N.Y. 48, 38 Am.Rep. 491, and repeated in Wooden v....