London Guarantee & Accident Co. v. Balgowan S.S. Co.

• Decision Date: 11 June 1931
• Docket Number: 36.
• Citation: 155 A. 334,161 Md. 145
• Parties: LONDON GUARANTEE & ACCIDENT CO., LIMITED, ET AL. v. BALGOWAN S. S. CO., LIMITED, ET AL.
• Court: Maryland Court of Appeals

155 A. 334

161 Md. 145

LONDON GUARANTEE & ACCIDENT CO., LIMITED, ET AL. v. BALGOWAN S. S. CO., LIMITED, ET AL.

No. 36.

Court of Appeals of Maryland

June 11, 1931

Appeal from Superior Court of Baltimore City; Robert F. Stanton Judge.

Action by the London Guarantee & Accident Company, Limited, for joint use and benefit of itself and others, against the Balgowan Steamship Company, Limited, and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Joseph Townsend England and Fendall Marbury, both of Baltimore, for appellant.

John B Deming and George Forbes, both of Baltimore (Henry L Wortche, of Baltimore, on the brief), for appellees.

OFFUTT J.

This is an appeal from a judgment for the defendant on demurrer of the superior court of Baltimore city in an attachment proceeding on original process for unliquidated damages against a nonresident, instituted by the London Guarantee & Accident Company, Limited, for the joint use and benefit of itself and the widow and certain surviving children of Davis Hawkins, deceased, against the Balgowan Steamship Company Ltd., William Arbuckle and Neil MacKinnon, individually and jointly.

The cause of action is found in certain statutes of the state of Texas set out in full in the declaration and more particularly referred to later and in the following facts, which for the purposes of the appeal are conceded:

On or about November 13, 1928, Davis Hawkins was employed by the Gulf Stevedoring Company of Texas upon a pier at Galveston, Tex., in loading bales of cotton on the steamship Balgowan, which was owned by the appellees. In the course of his work, as the result of defendants' negligence, a rope by means of which the cotton was hoisted from the pier to the ship parted, and several bales fell upon Hawkins inflicting injuries which caused his death. The precise negligence of which the appellants complain is that the rope by which the bales were suspended was dangerously defective, and that it parted because that condition could by the exercise of ordinary care on their part have been discovered by the appellees who supplied it for the use to which it was applied in time to have prevented the accident, but which could not have been so discovered through the exercise of ordinary care by the injured employee. In due course, compensation under the Workmen's Compensation Law of Texas in the sum of $5,500 was awarded to the widow and children of Hawkins and paid by the London Guarantee & Accident Company, Limited, which had issued a policy of compensation insurance to the Gulf Stevedoring Company covering its liability for such compensation. On August 15, 1930, the insurance company filed its affidavit in the superior court for the attachment in this case, and on the same day filed in the proceeding its declaration properly verified. A demurrer to that declaration having been sustained, on November 12, 1930, it filed its amended declaration. A demurrer to that pleading was also sustained, "without leave to amend," and judgment on demurrer entered for the defendants.

The sole question presented by the appeal is whether that declaration states a cause of action enforceable in the courts of this state.

While there is authority to the contrary, the great weight of judicial opinion in American courts is that no action can be maintained anywhere for the death of a human being through the negligent or wrongful act of another unless the right to maintain such an action is given by some statute of the state in which the injury was inflicted, 8 R. C. L. 719, 1037, 1038; 48 Am. Dec. 633; Austin's Adm'r v. Pittsburg, C., C. & St. L. R. Co., 122 Ky. 304, 91 S.W. 742, 5 L. R. A. (N. S.) 756; Boston & M. R. R. v. Hurd (C. C. A.) 108 F. 116, 56 L. R. A. 194; and that certainly is the law of this state, Dronenburg v. Harris, 108 Md. 597, 71 A. 81; Ash v. Baltimore & O. R. Co., 72 Md. 145, 19 A. 643, 20 Am. St. Rep. 461; Stewart v. United E. L. & P. Co., 104 Md. 332, 65 A. 49, 8 L. R. A. (N. S.) 384, 118 Am. St. Rep. 410. Where however, such a right is given by the lex loci delicti, the weight of authority supports the principle that it may upon considerations of comity be enforced in any other state where the law as to the actionable qualities of the wrongful act is substantially the same as the law of the state in which the act was done, 8 R. C. L. 792, and the opinion in Ash v. Baltimore & O. R. Co., supra, may be construed as favoring that rule. But, since a determination of that question is not necessary in this case, it will neither be considered nor decided. For, whatever the law as to that may be, the converse of the proposition has, after mature deliberation by able judges, been deliberately adopted as the settled law of this state; that is, that a negligent or wrongful act resulting in the death of a human being under circumstances which by the statutory law of the state in which the act was done conferred upon certain classes of persons a right of action against the tort-feasor, is not actionable in this state in respect to such death unless like qualities and incidents would have been given to it had the act occurred here, by some statute or statutes of this state substantially similar to the statute or statutes in force in the state in which the act was done and which made it a cause of action. Ash v. Baltimore & O. R. Co., supra; Dronenburg v. Harris, supra.

It is however, intimated in the very careful and helpful brief of the appellants that, if read literally, the opinion in Ash v. Baltimore & O. R. Co., supra, is inconsistent with the present trend of the law, and that therefore it should be read as sanctioning the exercise by the courts of this state of a greater liberality in assuming jurisdiction in actions for the enforcement of rights created by the statutory law of some other state than would be permitted by its strict letter. We cannot accept that suggestion for several reasons. One is that the language of that opinion is too clear to permit a resort to construction, and to give it any meaning other than that which it clearly states would not be to construe it, but to modify or overrule it, and that we are unwilling to do.

Second, the law as to the enforcement in one state of rights growing out of the death of a human being by the wrongful act of another in some other state, and which depend upon statutes of the state in which the act is done is in such a state of conflict and confusion that it cannot be said with certainty what its trend is, or that the weight of authority supports a rule different from that stated in Ash v. Baltimore & O. R. Co., supra; 8 R. C. L. "Death," §§ 73-77. For while the general weight of authority does support the proposition that rights accruing under foreign statutes may on principles of comity be enforced in a state other than that in which the act was done, the decisions as to the conditions and circumstances under which such rights will be enforced in the state of the forum are conflicting. Id. Whether that comity shall be extended has been held to depend upon whether the lex loci delicti upon which the right depends is substantially similar to the laws of the forum, Howard v. Nashville, etc., R. Co., 133 Tenn. 19, 179 S.W. 380, L. R. A. 1916B, 794, Ann. Cas. 1917A, 844; 8 R. C. L. p. 796, note 15; whether there is a statute in the state of the forum permitting an action for a wrongful act causing death, Id.; whether the statutes in the two jurisdictions are substantially alike or of a similar "import and character," founded on the "same general principle and possessing the same general attributes," 8 R. C. L. 796. On the other hand, it has been widely held that a right of action acquired under the laws of one state may be enforced in any other state even though acts similar to those upon which the right is based would not by the lex fori be actionable. Dennick v. Central R. Co., 103 U.S. 11, 26 L.Ed. 439; Stewart v. Baltimore & O. R. Co., 168 U.

S. 445 18 S.Ct. 105, 42 L.Ed. 537; Bigelow v. Nickerson (C. C. A.) 70 F. 113, 30 L. R. A. 336; O'Reilly v. New York & N.E. R. Co., 16 R.I. 388, 17 A. 171, 906, 19 A. 244, 5 L. R. A. 364, 6 L. R. A. 719; Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N.W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859. In some cases it has been held that a mere dissimilarity in the measure of damages recoverable may be disregarded in comparing the statutes as immaterial, Wooden v. Western N.Y. & P. R. Co., 126 N.Y. 10, 26 N.E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803; Whitlow v. Nashville, C. & St. L. R. Co., 114 Tenn. 344, 84 S.W. 618, 68 L. R. A. 503, as where the lex loci delicti allows exemplary damages and the plaintiff seeks compensatory damages only under the lex fori, which does not permit exemplary damages Rochester v. Wells Fargo & Co. Express, 87 Kan. 164, 123 P. 729, 40 L. R. A. (N. S.) 1095; in others such a dissimilarity has been fatal Hyde v. St. Louis & P. R. Co., 61 Iowa, 441, 16 N.W. 351, 47 Am. Rep. 820, and in one state it was held that under its statutes the courts could not assume jurisdiction in an action by a nonresident against a foreign corporation on a cause of action which did not arise within the state, Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 19 N.E. 625, 2 L. R. A. 636. Finally we are unable to say that the rule announced in the Ash v. Baltimore & O. R. Co., and Dronenburg v. Harris Cases, that rights arising from acts done beyond this state acquired by nonresidents under foreign statutes will not be enforced in this state when its policy as expressed in its statutes fails to accord to its own citizens by statutes substantially the same as the foreign statutes similar rights and privileges, is...