Parsons v. American Trust & Banking Co.

• Decision Date: 17 July 1934
• Citation: 73 S.W.2d 698
• Parties: PARSONS v. AMERICAN TRUST & BANKING CO.
• Court: Tennessee Supreme Court

73 S.W.2d 698

PARSONS v. AMERICAN TRUST & BANKING CO.

Supreme Court of Tennessee.

July 17, 1934.

Error to Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by Bonnie Crews Parsons against the American Trust & Banking Company, administrator. From a judgment of dismissal, plaintiff appeals in error.

Reversed and remanded.

Whitaker & Whitaker, of Chattanooga, for plaintiff in error.

Thompson & Ballard, of Chattanooga, for defendant in error.

SWIGGART, Justice.

The plaintiff, as widow of W. H. Parsons, Jr., brought this action against the administrator of the estate of Albert H. Garnier, deceased, for damages for the wrongful death of her husband, caused by a negligent act of Garnier in the state of Florida.

The appeal in error is by the plaintiff, from a judgment of the circuit court of Hamilton county, dismissing the suit on certain pleas of the defendant.

The declaration avers that Garnier's negligence caused an automobile collision in which plaintiff's husband received injuries from which he died a "few days thereafter," and also that Garnier himself sustained injuries in the accident, from which he died "soon thereafter."

The declaration contains the following:

"Plaintiff, as the widow and beneficiary of the said W. H. Parsons, Jr., alleges that the law of Florida governs as to the right to sue and as to the liability of defendants and that under the law of the State of Florida, the right of action for the wrongful death of her said husband survives against the estate of the said Albert H. Garnier, by virtue of the following statute of the State of Florida, the same being section 4211, Comp. Gen. Laws, section 2571, Rev. Gen. Statutes, which reads as follows:

"`4211 (2571) Suits for personal injuries. — All actions for personal injuries shall die with the person, to wit: Assault and battery, slander, false imprisonment, and malicious prosecution; all other actions shall and may be maintained in the name of the representatives of the deceased.'"

Other statutes of the state of Florida are pleaded, by virtue of which it is charged that "the right to bring this action" is vested in plaintiff, as widow, and that the action is subject to the limitation that it shall be brought within two years from the date the cause of action accrued.

By the law of Tennessee, a widow may bring an action for damages for the wrongful death of her husband. Code, § 8236. To this extent the law of the two states is similar. But by the statutes of Tennessee the action must be brought against the wrongdoer in his lifetime. Cherry v. Hardin, 51 Tenn. (4 Heisk.) 199; Brown v. Stephens, 165 Tenn. 85, 52 S. W.(2d) 146. If, however, the action be brought against the wrongdoer, and he die pending the suit, it may be revived and prosecuted to judgment against his personal representative, as a debt or claim against his estate. Code, § 8694.

The theory of the plaintiff's case is that she brings to the Tennessee court an unliquidated claim or debt against the estate of Garnier, created and arising under the law of Florida at a time when Garnier was temporarily in that state, and which she is entitled to the aid of the courts of Tennessee to enforce against the estate being administered in Tennessee.

"The question as to whether a particular cause of action, dependent upon a statute, survives the death of the plaintiff, or of the beneficiary for whose benefit the action is brought, is a question of right, and not procedure, depending upon the substance of the cause of action, and for its solution we must look to the statute of the state giving the right of action." Lurton, J., in Sanders' Adm'x v. L. & N. R. Co., 111 F. 708, 710, 48 C. C. A. 565. The principle is the same when the inquiry is whether the cause of action survives the death of the wrongdoer. Ormsby v. Chase, 290 U. S. 387, 54 S. Ct. 211, 78 L. Ed. 378, and cases collected in annotations, 87 A. L. R. 852.

The courts of this state have consistently adhered to the principle that the law of the place where a wrong is committed must determine the rights of the parties affected by such wrong. Holland v. Pack, 7 Tenn. (Peck) 151; N. & C. R. Co. v. Eakin, Adm'r, 46 Tenn. (6 Cold.) 582; N. & C. R. Co. v. Sprayberry, 56 Tenn. (9 Heisk.) 852; same case reported at 67 Tenn. (8 Baxt.) 341, 35 Am. Rep. 705; Whitlow v. N. C. & St. L. R. Co., 114 Tenn. 344, 84 S. W. 618, 621, 68 L. R. A. 503; Hartman v. Duke, 160 Tenn. 134, 22 S.W.(2d) 221.

Without controverting the general principles above stated, the defendant contends that, because the law of this jurisdiction denies the right of an injured person, or his representative, to redress his wrong by suit brought against the administrator of the wrongdoer, it is against the policy of our law to enforce such a right arising under the law of another state.

The foundation of the action is a wrongful act, resulting in the death of another. The law of Florida, giving the widow the right to demand compensatory damages for such wrongful act, is in strict accord with the law of Tennessee. It cannot be said that our law recognizes anything of injustice in requiring the estate of the wrongdoer to compensate his wrong, for, if the action be brought before his death, it may be revived and prosecuted against his representative, and the judgment enforced as a debt of his estate. The single difference in the law of the two states is that in the state where the wrong was committed the cause of action survives the death of the wrongdoer, while in the state of the forum only a pending action will survive his death.

In Whitlow v. N., C. & St. L. R. Co., supra, this court "adopted" a quotation from Herrick v. Minneapolis, etc., R. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771, containing the following statement: "To justify a court in refusing to enforce a right of action which accrued under the law of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that, for some other such reason, the enforcement of it would be prejudicial to the general interests of our own citizens."

Application of this principle is indicated by the two cases of Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 3 L. R. A. 214, 10 Am. St. Rep. 690, and First National Bank v. Shaw, 109 Tenn. 237, 70 S. W. 807, 59 L. R. A. 498, 97 Am. St. Rep. 840. In the first case this court rendered judgment against a married woman on her promissory note, valid under the law of the state of her domicile, where it was made, but reserved the question of her liability if she had been a resident of this state, the laws of which then imposed upon married women the common-law disabilities of coverture. In the latter case the suit was against a married woman, resident of this state, upon a note delivered by her and payable in a state where married women were liable on their contracts. Enforcement of that liability was denied by this court for the reason that it would be repugnant to the spirit and policy of our laws. The two cases can be reconciled on the view that the settled policy of the state to relieve resident married women of the consequences of their undertakings would have been materially impaired by the enforcement of contracts entered into in other states, not affording them such protection, while no such consequence would follow the enforcement of a similar obligation assumed by a nonresident in the state of her domicile where it was a legally enforceable obligation. The mere fact that the note would not have been enforceable if made in Tennessee was not regarded as an obstacle to liability in either case.

In so far as we have been able to discover, the appellate courts which have ruled the question in recent years have enforced the cause of action against the administrator of the estate of the wrongdoer when given by the law of the state where the act was committed, notwithstanding the law of the forum did not permit its survival. Chubbuck v. Holloway, 182 Minn. 225, 234 N. W. 314, reversed on other grounds 182 Minn. 231, 234 N. W. 868; Kertson v. Johnson, 185 Minn. 591, 242 N. W. 329, 85 A. L. R. 1; Burg v. Knox (Mo. Sup.) 67 S.W.(2d) 96; Domres v. Storms, 236 App. Div. 630, 260 N. Y. S. 335; Taynton v. Vollmer, 151 Misc. 214, 271 N. Y. S. 128; Herzog v. Stern, 240 App. Div. 881, 267 N. Y. S. 968, reversing 148 Misc. 25, 265 N. Y. S. 72.

Three of these cases cited as authority the case of Herrick v. Minneapolis, etc., R. Company, from which the quotation hereinabove made from our case of Whitlow v. Railroad was taken. The Missouri decision was aided by a statute of that state, enacting into its substantive law the rule of comity followed elsewhere. But in each of the cases the court found in the failure of the Legislature to provide for the survival of the cause of action no "barrier of public policy" which would prevent the enforcement of the right granted by the state where the injury was suffered. The Minnesota and New York courts also cited and quoted from Loucks v. Standard Oil Co., 224 N. Y. 99, 120 N. E. 198, 201, containing the following observation of Cardozo, J.: "A right of action is property. If a foreign statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home. * * * The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal."

In Clough v. Gardiner, 111 Misc. 244, 182 N. Y. S. 803; 194 App. Div. 923, 184 N. Y. S. 914 (decided in 1920), a department of the Supreme Court of New York, Appellate Division,...