Saloshin v. Houle

• Decision Date: 05 May 1931
• Citation: 155 A. 47
• Parties: SALOSHIN v. HOULE.
• Court: New Hampshire Supreme Court

155 A. 47

SALOSHIN

v. HOULE.

Supreme Court of New Hampshire. Rockingham.

May 5, 1931.

Transferred from Superior Court, Rockingham County; Young, Judge.

Action by Lillian Saloshln, administratrix, against Zoel A. Houle. Case transferred from trial term.

Case discharged.

Action for negligently causing death. The fatality occurred at Hampton. The decedent was a resident of New York where the plaintiff, his widow, was appointed to administer his estate. He was in the employ of a New York concern, and after the action was brought she applied for and obtained compensation under the Workman's Compensation Act there in force. The compensation is in the form of weekly payments still continuing, and is paid by an insurer carrying the decedent's employer's liability therefor.

The action was continued in the superior court until the insurer filed a motion to join in it as a party plaintiff. The defendant thereupon moved for dismissal of the action upon the ground that the insurer's motion was not filed within two years after the intestate's death, and alleged the insurer's succession in right to the cause of action by force of the New York Compensation Act.

It is provided in the act (section 29 [Consol. Laws N. Y. c. 67]): "If such injured 'employee, or in case of death, his dependants, elect to take compensation under this chapter, the awarding of compensation shall operate as an assignment of the cause of action against such other to the * * * insurance carrier liable for the payment of such compensation, and if he elect to proceed against such other, the * * * insurance carrier * * * shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation * * * for such case."

It was also found that an insurer's action for an employee's death must be brought within two years after the death, under the act.

The court transferred without ruling the legal questions the motions raised.

William H. Sleeper and John W. Perkins, both of Exeter, for plaintiff and insurer.

Sewall & Waldron and A. E. Sewall, all of Portsmouth, for defendant.

ALLEN, J.

It is sought by the transfer of the case to have it here determined what effect the plaintiff's acceptance of compensation in New York had upon the action. The answer depends, first, upon the policy of comity in enforcing the laws of other states; and, second, if comity may be invoked, upon the New York law relating to and regulating compensation.

As the record is understood, the plaintiff as the decedent's widow is the sole beneficiary of the action under P. L. c. 302, § 14, subd. 2. It does not appear that there are minor or dependent Children to share with her in any recovery. However the New York law is to be construed, comity in its recognition and enforcement would not go so far as to permit it to defeat local law. Conduct of the plaintiff which sought to divest beneficiaries of their interest without their consent and inured solely to her benefit would be regarded as illegal here. A legal character of the conduct in the state of the domicile will be given no effect here when to do so tends to alter the local law. Local jurisdiction over the action gives jurisdiction over its proceeds, and hence over their disposal.

Nor may the New York law give the insurer any right of action, independent of that of the plaintiff, which may be enforced here. That law may not displace or modify the local law in its effect upon local occurrences and transactions. As to them, the local law will recognize no liability except that which it itself imposes. Otherwise local sovereignty would be impaired. It follows that, if the New York law might be construed as giving the insurer a right of action of its own distinct from that of the plaintiff, it could not be maintained here. And it also follows that the amount of recovery in the local action cannot be affected by foreign law. The rule of damages is no less immune to change than that of liability.

But, since the plaintiff was personally subject to the laws of New York, her con duct pursuant thereto is to be recognized here so far as local laws and policy are not disregarded. Her acceptance of compensation may not prejudice the defendant's rights or weaken his position. He was not a party to it, and is under no burden on account of it. He was subject to suit here only in the action brought. But, if the acceptance of compensation inured to his advantage, he may avail himself of it. The cause of action being the plaintiff's property both at law in her representative capacity and in equity as its beneficiary, she might so act as to lose her title by abandonment. If it was in some way lost or destroyed, the defendant may plead its extinguishment. Termination of all right to carry on the action would discharge his liability. If by what was done in New York the plaintiff lost her right to continue the maintenance of the action and the insurer did not acquire the right to maintain it for its benefit or lost the right by failure seasonably to proceed with its maintenance, the complete loss of the cause would entitle the defendant to judgment. Local law would not bar comity in respect thereto.

On the other hand, if the award of compensation in New York had the effect under the law there, not to extinguish the right of action through the loss of property rights therein, but to permit its maintenance either by the plaintiff or by the insurer as its assignee, the rule of comity is equally available to adopt the legal character of the transaction which it has where it is entered into or takes place. A cause of action for personal injuries, if not terminable by death and if in form ex contractu, is generally assignable under local law. Stewart v. Lee, 70 N. H. 181, 185, 46 A. 31. The policy and reason for the rule are broad enough to make the form of action immaterial. In that case a judgment in an action for breach of promise of marriage was held assignable, and an action of negligence for personal injuries can be no less so. Nor is it of consequence that, while here an assignee of a claim must sue in the assignor's name for the former's use and benefit (Thompson v. Emery, 27 N. H. 269, 273; Stewart v. Lee, supra; Stavrelis v. Zacharias, 79 N. H. 146, 148, 106 A. 306), in New York the assignee may sue in his own name. The distinction is one of procedure alone, as to which the lex fori governs. 5 C. J. 986.

Under the rule applied by a divided court in Hansen v. Railway, 78 N. H. 518, 102 A. 625, 626, and since followed in other cases (Connecticut, etc., Co. v. Railroad, 78 N. H. 553, 557, 103 A. 263; Stinson v. Railroad, 81 N. H. 473, 476, 128 A. 562; Marshall v. Railroad. 81 N. H. 548, 124 A. 550; Baribault v. Robertson, 82 N. H. 297, 298, 133 A. 21; Lee v. Chamberlin, 84 N. H. 182, 148 A. 466), foreign law "is a matter of fact determinable at the trial term." "Exceptions to his finding can raise only questions of the admissibility or sufficiency of the evidence." Hansen v. Railway, supra, 78 N. H. 524, 102 A. 625, 628. While the relevant New York law, or a part of it, is here transferred, it is transferred only as evidence. What the rule of law in New York is in respect to the relative rights of a plaintiff and insurer, after compensation is there awarded, in an action for death brought and pending in another state, is the issue. It is an issue of fact, and it has not been passed upon. Under the practice heretofore prevailing and in accordance with the cases cited, it was the trial court's duty to find the law as a fact. Its meaning and declaration as well as its wording and phraseology are to be included in the finding. Here evidence is reported, the inferences from which are left to this court to draw. As to such procedure, "the case is incomplete. * * * The facts are not found. Certain evidence is transferred. * * * This court has no jurisdiction to find the facts in cases transferred from the superior court. Coles v. Railroad, 74 N. H. 425, 68 A. 868. It follows that the transfer of the evidence cannot affect the decision here." Nashua Trust Co. v. Burke, 85 N. H. —, 152 A. 488, 489.

In conformity with the practice, the case would be returned to the trial court for its findings of the facts necessary to a decision of the questions transferred. But as grave and serious doubts of the propriety of the treatment of foreign law as an ordinary question of fact have presented themselves, the rule has been re-examined and consideration given its standing. Its logical support and its practical merits are so open to objection and inviting to criticism that the rule of stare decisis is not strong enough to close the door to the consideration. The question is in a large aspect procedural. To hold the rule erroneous has no perceived effect on settled situations or property rights, and no injurious results are in view which render it inexpedient and improper to question the validity of the rule.

The Hansen Case is in accord with the weight of authority. The authorities are largely collected in a note in 68 A. L. R. 809-820. But its reasoning appears to unduly stress the importance of the distinction between "proof of a foreign law and ascertainment of a domestic law, to disregard in some measure the difference between the evidence and facts of foreign law, and to result in an irrational allotment of judicial authority. "The distinctive treatment of the fact of an unwritten foreign law as compared to the fact of a domestic one seems unwarranted in reason and confusing in practice." Chamberlayne, Ev. § 155. And the proposition has equal force when the foreign and domestic laws are statutes.

In keeping separate the methods for ascertaining foreign and domestic law, the difference is more nominal than real. And in its practical aspect the problem is one of judicial expediency. The established order that this court shall pass upon issues of law but shall not ordinarily...