Neumeier v. Kuehner

• Decision Date: 07 July 1972
• Citation: 286 N.E.2d 454,335 N.Y.S.2d 64,31 N.Y.2d 121
• Parties: , 286 N.E.2d 454 Joan NEUMEIER, as Administratrix of the Estate of Amie Neumeier, Deceased, Respondent, v. Irene KUEHNER, as Administratrix of the Estate of Arthur Kuehner, Deceased, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 64

335 N.Y.S.2d 64

31 N.Y.2d 121, 286 N.E.2d 454

Joan NEUMEIER, as Administratrix of the Estate of Amie Neumeier, Deceased, Respondent, v. Irene KUEHNER, as Administratrix of the Estate of Arthur Kuehner, Deceased, et al., Appellants.

Court of Appeals of New York.

July 7, 1972.

Frank G. Godson, Buffalo, for Irene Kuehner, appellant.

Courtland R. LaVallee, Buffalo, for Canadian National Railway, appellant.

James S. McAskill and James N. Schmit, Buffalo, for respondent.

FULD, Chief Judge.

A domiciliary of Ontario, Canada, was killed when the automobile in which he was riding, owned and driven by a New York resident, collided with a train in Ontario. That jurisdiction has a guest statute, and the primary question posed by this appeal is whether in this action brought by the Ontario passenger's estate, Ontario law should be applied and the New York defendant permitted to rely on its guest statute as a defense.

The facts are quickly told. On May 7, 1969, Arthur Kuehner, the defendant's intestate, a resident of Buffalo, drove his automobile from that city to Fort Erie in the Province of Ontario, Canada, where he picked up Amie Neumeier, who lived in that town with his wife and their children. Their trip was to take them to Long Beach, also in Ontario, and back again to Neumeier's home in Fort Erie. However, at a railroad crossing in the Town of Sherkston--on the way to Long Beach--the auto was struck by a train of the defendant Canadian National Railway Company. Both Kuehner and his guest-passenger were instantly killed.

Neumeier's wife and administratrix, a citizen of Canada and a domiciliary of Ontario, thereupon commenced this wrongful death action in New York against both Kuehner's estate and the Canadian National Railway Company. The defendant estate pleaded, as an affirmative defense, the Ontario guest statute and the defendant railway also interposed defenses in reliance upon it. In substance, the statute provides that the owner or driver of a motor vehicle is not liable for damages resulting from injury to, or the death of, a guest-passenger unless he was guilty of gross negligence (Highway Traffic Act of Province of Ontario (Ont.Rev.Stat. (1960), ch. 172), § 105, subd. (2), as amd. by Stat. of 1966, ch. 64, § 20, subd. (2)). It is worth noting, at this point, that, although our court originally considered that the sole purpose of the Ontario statute was to protect Ontario defendants and their insurers against collusive claims (see Babcock v. Jackson, 12 N.Y.2d 473, 482--483, 240 N.Y.S.2d 743, 749--750, 191 N.E.2d 279, 283--284). 'Further research * * * has revealed the distinct possibility that one purpose, and perhaps the only purpose, of the statute was to protect owners and drivers against ungrateful guests.' (Reese, Chief Judge Fuld and Choice of Law, 71 Col.L.Rev. 548, 558; see Trautman, Two Views on Kell v. Henderson: A Comment, 67 Col.L.Rev. 465, 469.)

The plaintiff, asserting that the Ontario statute 'is not available * * * in the present action' moved, pursuant to CPLR 3211 (subd. (b)), to dismiss the affirmative defenses pleaded. The court at Special Term, holding the guest statute applicable, denied the motions (63 Misc.2d 766, 313 N.Y.S.2d 468) but, on appeal, a closely divided Appellate Division reversed and directed dismissal of the defenses (37 A.D.2d 70, 322 N.Y.S.2d 867). It was the court's belief that this result was dictated by Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394.

In reaching that conclusion, the Appellate Division misread our decision in the Tooker case--a not unnatural result in light of the variant views expressed in the three separate opinions written on behalf of the majority. It is important to bear in mind that in Tooker, the guest-passenger and the host-driver were both domiciled in New York, and our decision--that New York law was controlling--was based upon, and limited to, that fact situation. Indeed, two of the three judges who wrote for reversal--Judge Keating (24 N.Y.2d, at p. 580, 301 N.Y.S.2d at p. 528, 249 N.E.2d at p. 400) and Judge Burke (at p. 591, 301 N.Y.S.2d at p. 537, 249 N.E.2d at p. 407)--expressly noted that the determination then being made left open the question whether New York law would be applicable if the plaintiff passenger happened to be a domiciliary of the very jurisdiction which had a guest statute. ¹ Thus, Tooker v. Lopez did no more than hold that, when the passenger and driver are residents of the same jurisdiction and the car is there registered and insured, its law, and not the law of the place of accident, controls and determines the standard of care which the host owes to his guest.

What significantly and effectively differentiates the present case is the fact that, although the host was a domiciliary of New York, the guest, for whose death recovery is sought, was domiciled in Ontario, the place of accident and the very jurisdiction which had enacted the statute designed to protect the host from liability for ordinary negligence. It is clear that although New York has a deep interest in protecting its own residents, injured in a foreign state, against unfair or anachronistic statutes of that state, it has no legitimate interest in ignoring the public policy of a foreign jurisdiction--such as Ontario--and in protecting the plaintiff guest domiciled and injured there from legislation obviously addressed, at the very least, to a resident riding in a vehicle traveling within its borders.

To distinguish Tooker on such a basis is not improperly discriminatory. It is quite true that, in applying the Ontario guest statute to the Ontario-domiciled passenger, we, in a sense, extend a right less generous than New York extends to a New York passenger in a New York vehicle with New York insurance. That, though, is not a consequence of invidious discrimination; it is, rather, the result of the existence of disparate rules of law in jurisdictions that have diverse and important connections with the litigants and the litigated issue.

The fact that insurance policies issued in this State on New York-based vehicles cover liability, regardless of the place of the accident (Vehicle and Traffic Law, Consol.Laws, c. 71 § 311, subd. 4), certainly does not call for the application of internal New York law in this case. The compulsory insurance requirement is designed to Cover a car-owner's liability, not Create it; in other words, the applicable statute was not intended to impose liability where none would otherwise exist. This being so, we may not properly look to the New York insurance requirement to dictate a choice-of-law rule which would invariably impose liability. As Justice Moule wrote in the course of his dissenting opinion below (37 A.D.2d, at pp. 75--76, 322 N.Y.S.2d, at p. 872), 'The statute (Vehicle and Traffic Law, § 311, subd. 4) does not purport to impose liability where none would otherwise exist. We must observe that Judge Keating's statement ((in Tooker, 24 N.Y.2d, at) p. 577, 301 N.Y.S.2d 519, 249 N.E.2d 394) that the legislature 'has evinced commendable concern not only for the residents of this State, but residents of other States who may be injured as a result of the activities of New York residents' was in the context, not of proving that New York had a governmental interest in overriding foreign rules of liability, but of demonstrating that it was immaterial in that case that the driver and passenger, while domiciliaries of New York, were attending college in Michigan. While New York may be a proper forum for actions involving its own domiciliaries, regardless of where the accident happened, it does not follow that we should apply New York law simply because some may think it is a better rule, where doing so does not advance any New York State interest, nor the interest of any New York State domiciliary.'

When, in Babcock v. Jackson (12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, Supra), we rejected the mechanical place of injury rule in personal injury cases because it failed to take account of underlying policy considerations, we were willing to sacrifice the certainty provided by the old rule for the more just, fair and practical result that may best be achieved by giving controlling effect to the law of the jurisdiction which has the greatest concern with, or interest in, the specific issue raised in the litigation. (See, also, Tooker v. Lopez, 24 N.Y.2d 569, 584, 301 N.Y.S.2d 519, 531, 249 N.E.2d 394, 403 (concurring opn.), Supra.) In consequence of the change effected--and this was to be anticipated--our decisions in multi-state highway accident cases, particularly in those involving guest-host controversies, have, it must be acknowledged, lacked consistency. This stemmed, in part, from the circumstance that it is frequently difficult to discover the purposes or policies underlying the relevant local law rules of the respective jurisdictions involved. It is even more difficult, assuming that these purposes or policies are found to conflict, to determine on some principled basis which should be given effect at the expense of the others.

The single all-encompassing rule which called, inexorably, for selection of the law of the place of injury was discarded, and wisely, because it was too broad to prove satisfactory in application. There is, however, no reason why choice-of-law rules, more narrow than those previously devised, should not be successfully developed, in order to assure a greater degree of predictability and uniformity, on the basis of our present knowledge and experience. (See, e.g., Cavers, The Choice of Law Process, 121--122; Reese, Chief Judge Fuld and Choice of Law, 71 Col.L.Rev. 548, 555, 561--562; Reese, Choice of Law: Rules or Approach, 57 Corn.L.Rev. 315, 321 et seq.; Rosenberg, Comments on Reich v. Purcell, 15 UCLA L.Rev. 641, 642, 646--647.) 'The time has come,' I wrote in Tooker (24 N.Y.2d, at p. 584, 301 N.Y.S.2d at p. 532, 249 N.E.2d at p. 403), ...