Loucks v. Standard Oil Co. of New York

• Citation: 120 N.E. 198,224 N.Y. 99
• Parties: LOUCKS et al. v. STANDARD OIL CO. OF NEW YORK.
• Decision Date: 12 July 1918
• Court: New York Court of Appeals

224 N.Y. 99

120 N.E. 198

LOUCKS et al.

v.STANDARD OIL CO. OF NEW YORK.

Court of Appeals of New York.

July 12, 1918.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Fannie F. Loucks and James M. Rutledge, as joint administrators of Everett A. Loucks, deceased, against the Standard Oil Company of New York. From a judgment of the Appellate Division (172 App. Div. 227,159 N. Y. Supp. 282), reversing an order of the Special Term (92 Misc. Rep. 475,156 N. Y. Supp. 7) and granting defendant's motion for judgment on the pleadings, plaintiffs appeal. Reversed, and order of the Special Term affirmed.

A. Lee Olmsted, of Syracuse, for appellants. Lyman M. Bass, of Buffalo, for respondent.

Collin, J., dissenting in part.

CARDOZO, J.

The action is brought to recover damages for injuries resulting in death. The plaintiffs are the administrators of the estate of Everett A. Loucks. Their intestate, while traveling on a highway in the state of Massachusetts, was run down and killed through the negligence of the defendant's servants then engaged in its business. He left a wife and two children, residents of New York. A statute of Massachusetts (R. L. c. 171, § 2, as amended by L. 1907, c. 375) provides that:

‘If a person or corporation by his or its negligence, or by the negligence of his or its agents or servants while engaged in his or its business, causes the death of a person who is in the exercise of due care, and not in his or its employment or service, he or it shall be liable in damages in the sum of not less than $500, nor more than $10,000, to be assessed with reference to the degree of his or its culpability, or * * * that of his or its * * * servants, to be recovered in an action of tort commenced within two years after the injury which caused the death, by the executor or administrator of the deceased, one-half thereof to the use of the widow and one-half to the use of the children of the deceased, or, if there are no children, the whole to the use of the widow, or, if there is no widow, the whole to the use of the next of kin.’

The question is whether a right of action under that statute may be enforced in our courts.

[1][2] 1. ‘The courts of no country execute the penal laws of another.’ The Antelope, 10 Wheat. 66, 123, 6 L. Ed. 268. The defendant invokes that principle as applicable here. Penal in one sense the statute indisputably is. The damages are not limited to compensation; they are proportioned to the offender's guilt. A minimum recovery of $500 is allowed in every case. But the question is not whether the statute is penal in some sense. The question is whether it is penal within the rules of private international law. A statute penal in that sense is one that awards a penalty to the state, or to a public officer in its behalf, or to a member of the public, suing in the interest of the whole community to redress a public wrong. Huntington v. Attrill, 146 U. S. 657, 668, 13 Sup. Ct. 224, 36 L. Ed. 1123; Huntington v. Attrill, [1903] A. C. 150, 156; Brady v. Daly, 175 U. S. 148, 154, 157, 20 Sup. Ct. 62, 44 L. Ed. 109; Raulin v. Fischer, [1911] 2 K. B. 93; Dicey, Conflict of Laws, p. 209. The purpose must be, not reparation to one aggrieved, but vindication of the public justice. Huntington v. Attrill, 146 U. S. 668, 13 Sup. Ct. 224, 36 L. Ed. 1123; Brady v. Daly, supra. The Massachusetts statute has been classified in some jurisdictions as penal, and in others as remedial. Connecticut, Rhode Island, and Vermont put it in the first category. Cristilly v. Warner, 87 Conn. 461, 88 Atl. 711,51 L. R. A. (N. S.) 415;Gardner v. N. Y. & N. E. Ry. Co., 17 R. I. 790, 24 Atl. 831;O'Reilly v. N. Y. & N. E. Ry. Co., 16 R. I. 388, 17 Atl. 171, 906,19 Atl. 244, 5 L. R. A. 364, 6 L. R. A. 719; Adams v. Fitchburg R. R. Co., 67 Vt. 76, 30 Atl. 687,48 Am. St. Rep. 800. See also Raisor v. C. & A. Ry. Co., 215 Ill. 47, 74 N. E. 69,106 Am. St. Rep. 153,2 Ann. Cas. 802. New Hampshire and some of the federal courts put it in the second. Hill v. B. & M. R. R. Co., 77 N. H. 151, 89 Atl. 482, Cas. 1914C, 714, where the subject is fully considered; B. & M. R. R. Co. v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193;Malloy v. Am. Hide & Leather Co. (C. C.) 148 Fed. 482. See also Whitlow v. Nashville R. R. Co., 114 Tenn. 344, 84 S. W. 618,68 L. R. A. 503. The courts of Massachusetts have said that the question is still an open one. Boott Mills v. B. & M. R. R. Co., 218 Mass. 582, 592, 106 N. E. 680. No matter how they may have characterized the act as penal, they have not meant to hold that it is penal for every purpose. 218 Mass. 592, 106 N. E. 680. Even without that reservation by them, the essential purpose of the statute would be a question for our courts. Huntington v. Attrill, 146 U. S. 683, 13 Sup. Ct. 224, 36 L. Ed. 1123; [1903] A. C. 155; Hill v. B. & M. R. R. Co., supra.

We think the better reason is with those cases which hold that the statute is not penal in the international sense. On that branch of the controversy, indeed, there is no division of opinion among us. It is true that the offender is punished, but the purpose of the punishment is reparation to those aggrieved by his offense. Com. v. B. & A. R. R. Co., 121 Mass. 36, 37;Com. v. Eastern R. R. Co., 5 Gray (Mass.) 473, 474. The common law did not give a cause of action to surviving relatives. Insurance Co. v. Brame, 95 U. S. 754, 757, 24 L. Ed. 580;Dennick v. R. R. Co., 103 U. S. 11, 26 L. Ed. 439; The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; Admiralty Commissioners v. S. S. Amerika, [1917] A. C. 38. In the light of modern legislation, its rule is an anachronism. Nearly everywhere, the principle is now embodied in statute that the next of kin are wronged by the killing of their kinsman. The family becomes a legal unit, invested with rights of its own, invested with an interest in the continued life of its members, much as it was in primitive law. Maine, Ancient Law, pp. 121, 122, 178; 1 Pollock & Maitland, History of English Law, p. 24; Holmes, the Common Law, p. 342. The damages may be compensatory or punitive according to the statutory scheme. See 8 Ruling Case Law, title Death, § 120, where statutes are collated. In either case the plaintiffs have a grievance above and beyond any that belongs to them as members of the body politic. They sue to redress an outrage peculiar to themselves.

We cannot fail to see in the history of the Massachusetts statutes a developing expression of this policy and purpose. The statutes have their distant beginnings in the criminal law. To some extent the vestiges of criminal forms survive. But the old forms have been filled with a new content. The purpose which informs and vitalizes them is the protection of the survivors. They are moods and phases, the particular and varying expression, of a tendency in legislation as general as the common law. They are not to be viewed in isolation, apart from the stream of events. At first, the remedy was given only when the wrongdoer was a common carrier. St. 1840, c. 80. That statute goes back to 1840, antedating Lord Campbell's Act in England. St. 9 & 10 Vict. c. 93 (1846). The remedy was by indictment and fine, the fine being payable to the widow and next of kin. If there were no survivors of the prescribed class, there could be no indictment. Com. v. B. & A. R. R. Co., 121 Mass. 36. The reason was that even then the dominant purpose was reparation to the family. But later an alternative remedy by civil action at the suit of the executor or administrator became available even against carriers. Hudson v. L. & B. R. R., 185 Mass. 515, 516, 71 N. E. 66;Grella v. Lewis Wharf Co., 211 Mass. 54, 58, 97 N. E. 745, Ann. Cas. 1913A, 1136. Then other statutes gave a civil remedy against other wrongdoers, and a civil remedy exclusively. Some statutes were confined to cases where the defendant was the employer of the decedent. St. 1887, c. 270; R. L. c. 106, § 73; Smith v. Thomson-Houston El. Co., 188 Mass. 371, 74 N. E. 664. Finally there came one which gave a remedy against all persons who had not otherwise been made liable. T. L. c. 171, § 2. That is the statute sued on. The remedy is civil; it is an action of tort.

Through all this legislation there runs a common purpose. Boott Mills v. B. & M. R. R. Co., supra, 218 Mass. 586, 106 N. E. 680;Brown v. Thayer, 212 Mass. 392, 99 N. E. 237. It is penal in one element and one only; the damages are punitive. The courts of Massachusetts do not give punitive damages even for malicious torts except by force of statute. Bott Mills v. B. & M. R. R. Co., supra, 218 Mass. 588, 106 N. E. 680;Ellis v. Brockton Pub. Co., 198 Mass. 538, 84 N. E. 1018,126 Am. St. Rep. 454,15 Ann. Cas. 83. That may have led them to emphasize unduly the penal element in such recoveries. But the punishment of the wrongdoer is not designed as atonement for a crime; it is solace to the individual who has suffered a private wrong. This is seen in many tokens. The employer may be innocent himself. Smart money will still be due in proportion to his servant's negligence. That is a distribution of burdens more characteristic of torts than crimes. But even more significant is the distribution of benefits. All the statutes are in pari material. All or none are penal in the international sense. Boott Mills Co. v. B. & M. R. R. Co., supra. Under all, liability is conditioned upon the existence of a widow or of next of kin. Under some, there must be proof also that the next of kin were dependent on the decedent's wages for support. R. L. c. 106, § 73. That restriction brings the dominant purpose into clear relief as reparation to those aggrieved. Other purposes may be served at the same time. It is easy to cite dicta that seem to give them prominence. McCarthy v. Ward Lumber Co., 219 Mass. 566, 107 N. E. 439;Hudson v. L. & B. R. R., 185 Mass. 510, 71 N. E. 66;Mulhall v. Fallon, 176 Mass. 266, 269, 57 N. E. 386,54 L. R. A. 934...