Orr v. Ahern
| Decision Date | 06 January 1928 |
| Citation | 139 A. 691,107 Conn. 174 |
| Court | Connecticut Supreme Court |
| Parties | ORR v. AHERN. |
Appeal from Superior Court, Hartford County; Newell Jennings, Judge.
Action by Robert Orr against John J. Ahern, administrator to recover damages for personal injuries alleged to have been caused by the negligence of defendant's intestate. Judgment was rendered for defendant after sustaining a demurrer to the complaint and upon plaintiff's failure to plead over, and plaintiff appeals. No error.
A Storrs Campbell and Frank M. Mather, both of Hartford, for appellant.
Joseph F. Berry, of Hartford, and Cyril Coleman, of Meriden, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.
The plaintiff, a resident of Connecticut, seeks to recover damages for personal injuries alleged in his complaint to have been caused him through the negligent conduct of the defendant administrator's intestate in the state of New York. The defendant demurred upon the grounds that the action did not survive at common law and the complaint does not allege that in the state of New York the action survived against the estate of the defendant's intestate.
The action is a common-law action for a tort resulting in personal injuries committed in the state of New York; it is a transitory, not a local, action.
" A tort committed in one state creates a right of action that may be sued upon in another unless public policy forbids." Com. Fuel Co. v. McNeil, 103 Conn 390, 405, 130 A. 794, 800; Loucks v. Standard Oil Co., 224 N.Y. 99, 106, 120 N.E. 198.
In New York, as it formerly was in Connecticut (Merwin v. Merwin, 75 Conn. 8, 10, 52 A. 614), the common-law rule is in force, and actions to recover for personal injuries abate upon the death of the tort-feasor. New York had no statute of survival or revival, affecting plaintiff's cause of action for negligent injuries, at the time they originated. Connecticut had such a statute, in part as follows:
General Statutes, § 6177.
The purpose of our statute was to prevent the injustice which the enforcement of this rule of abatement entailed. Had the cause of action arisen in our jurisdiction, it would, in virtue of the statute, have survived the death of the defendant's intestate, the alleged tort-feasor. Had the plaintiff begun his action here before the death of the intestate, under this statute, after the death of the intestate, it would have been revived. When our court had assumed jurisdiction of a cause of action originating in New York, it was beyond the power of the state of its origin to destroy our jurisdiction of the action. The locus delicti determined the existence of the cause of action. The locus fori determined the remedy. The place of the injury could not by legislative or judicial action taken subsequent to our acquiring jurisdiction take away our jurisdiction over the cause of action which was good when we assumed it, for that would give the place of the injury an extraterritorial right to control litigation here. Neither would the death of the defendant's intestate pending the action have deprived our court of the right, upon proper application, to have revived the action, since our statute gives our court that right.
The decisions upon this point are in very substantial accord, resting upon the reason upon which the pending action for personal injuries rests. Baltimore & Ohio R. Co. v. Joy, 173 U.S. 226, 19 S.Ct. 387, 43 L.Ed. 677. There is nothing in our public policy which would prevent the maintenance in this state of an action to recover damages under the common law for a tort committed upon one of our residents while in a foreign jurisdiction.
The immediate question which we are called upon to decide is, Can a common-law action to recover damages for personal injuries suffered in New York be maintained in Connecticut against the personal representative of one whose negligence caused the injury, but who died before suit was brought? It must be conceded that the action by the express terms of the Decedents Estate Law of New York, substantially embodied in Code of Civil Procedure, § § 1902-1904, did not survive the death of the defendant's intestate, the alleged tort-feasor. As construed by the Court of Appeals of New York, the only right of action which survives under this statute is one for damages resulting from the death of the person injured to the estate of the beneficiary of the deceased for the wrong done to the property rights or interests of the beneficiary, which the representative, as the trustee for the beneficiary, converts into money for his benefit. Matter of Meekin, v. B. H. R. Co., 164 N.Y. 145, 58 N.E. 50, 51 L.R.A. 235, 79 Am.St.Rep. 635.
The argument of plaintiff's counsel centers upon their attempt to demonstrate that the question relates to the remedy and not to a substantive right; consequently the law of the forum governs, and whether the action survives is to be determined by that law. If the maintenance of this action depended merely upon the question of remedy, the result claimed must follow and the action survive, since the statute of the forum, Connecticut, so provides. The fallacy of this position is in its assumption that under the common law of New York the right of action for personal injuries was a substantive right existing wherever a like common-law right existed, which, though abated in the place of the wrong, would still exist in a foreign jurisdiction which had a survival statute and had obtained jurisdiction of the parties to the action after the abatement of the action in the state of origin. New York created the right of action for this wrong. The power which gave the right could take it away. When by its law the death of the injuring person abated the right of action for this wrong, the right no longer existed in that jurisdiction, nor thereafter in any other jurisdiction.
It could have changed its rule of law that death...
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