Pendar v. H. & B. Am. Mach. Co.

• Decision Date: 11 June 1913
• Citation: 87 A. 1,35 R.I. 321
• Parties: PENDAR v. H. & B. AMERICAN MACH. CO.
• Court: Rhode Island Supreme Court

87 A. 1

35 R.I. 321

PENDAR

v. H. & B. AMERICAN MACH. CO.

Supreme Court of Rhode Island.

June 11, 1913.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action by Michael Pendar against the H. & B. American Machine Company. There was a verdict for defendant, and plaintiff brings exceptions. Overruled, and case remitted for entry of judgment on the decision.

Thomas L. Carty, of Pawtucket, for plaintiff.

Boss & Barnefield, of Providence, for defendant.

BAKER, J. This is an action at common law brought by Michael Pendar, of Central Falls, in this state, against the H. & B. American Machine Company, described in the declaration as "a corporation duly created and having a usual place of business in the city of Pawtucket, in said state." The declaration alleges, in substance, that on the 20th day of July, 1912, at said Pawtucket, the plaintiff, while then and there employed by the defendant, and while then and there in the performance of his duties as such employê in loading or unloading "a certain appliance, machine, or buggy, so called," and while in the exercise of due care, was injured in consequence of the negligence of the defendant corporation. The declaration contains two counts. The first alleges the buggy to be unsafe; the second, that the floor about the buggy was unsafe. To the declaration the defendant pleaded the general issue, and also a special plea, in which it says that the plaintiff ought not to recover because "the place where said plaintiff was employed as a servant by said defendant, and the place where said plaintiff entered upon and continued his said employment as said servant of said defendant, and the place where the plaintiff's said injuries, as alleged in the two counts of his said declaration, were sustained, was and is in the town of Attleboro, in the commonwealth of Massachusetts, and not within the limits of the state of Rhode Island; that under the law of said commonwealth of Massachusetts, in force at the time of the making of said plaintiff's said contract of employment, and also in force at the time when said plaintiff's said injuries were so sustained, if an employé of a 'subscriber' or of a holder of an insurance policy in a liability insurance company authorized to do business in said Massachusetts, insuring the employer's liability to pay compensation for liabilities as provided in part 2 of chapter 751 of the Acts of 1911 of the Massachusetts Legislature, shall not have given his employer at the time of his contract of hire notice in writing that he claimed the right of action at common law to recover damages for personal injuries, such employé shall be held to have waived his right of action at common law; that at the time when said plaintiff so made his said contract of hire with said defendant said defendant was, and continued to be up to the time when and after said plaintiff sustained his said injuries, a 'subscriber' and a holder of an insurance policy in a liability insurance company so authorized, insuring said defendant's liability to pay said compensation hereinbefore referred to; that before the time of said plaintiff's said contract of hire the said defendant posted printed notice that it had provided for the payment of said compensation to injured employes at one of the principal entrances to said defendant's factory, where said plaintiff was later employed as aforesaid, and in each room thereof where labor was employed, which said notice said defendant so maintained from the time of posting thereof up to and after the time when said plaintiff's said injuries were sustained; and that said plaintiff at the time of his said contract of hire, or at any time thereafter, did not give to said defendant notice in writing that he claimed his right of action at common law to recover damages for personal injuries."

The plaintiff demurred to said special plea, and stated the grounds of his demurrer, as follows: "(1) That so far as appears in or by said plea there is nothing that defeats the jurisdiction of this court over parties to said action. (2) That so far as appears in or by said plea there is nothing that defeats the jurisdiction of this court over the subject-matter of said action. (3) That so far as appears in or by said plea the law of the commonwealth of Massachusetts therein referred to does not extinguish the plaintiff's said right of action. (4) That so far as appears in or by said plea the law of the commonwealth of Massachusetts therein referred to does not bar the plaintiff from maintaining his said action."

And in the event that said demurrer should be overruled the plaintiff filed his replication to said plea, setting up "that the place where the said plaintiff was employed as a servant by said defendant and the place where said plaintiff entered upon and continued his said employment as said servant of said defendant, and the place where the said injuries as alleged in the two counts of his said declaration were sustained, was and is within the limits of the state of Rhode Island, and not in the commonwealth of Massachusetts."

The plaintiff's demurrer was overruled, and his exception noted. Hearing was had on the replication to the special plea, jury trial being waived, and there was decision for defendant, and plaintiff excepted thereto. The case is now before this court on plaintiff's bill of exceptions, which contains only the exception to the decision overruling plaintiff's said demurrer.

The important question raised by the demurrer is whether the Massachusetts law pleaded in this case, as applied to the facts set out in the special plea, extinguishes the plaintiff's right to maintain a common-law action for the injuries received by him, as alleged in his declaration, so that he is barred from maintaining the present action. It is the law of this state, and generally, that the law of the place where the injury was received determines whether a right of action exists. If under the lex loci there be a right of action, comity permits it to be prosecuted in another jurisdiction; but if under the lex loci no right of action is created or exists, then it exists nowhere and can be prosecuted in no jurisdiction. This doctrine has been recognized and accepted by this court in the case...