State Of Md. v. Coard

• Decision Date: 10 June 1940
• Citation: 9 S.E.2d 454
• Parties: STATE OF MARYLAND, for Use of JOYNES et al. v. COARD.
• Court: Virginia Supreme Court

9 S.E.2d 454

STATE OF MARYLAND, for Use of JOYNES et al.

v.COARD.

Supreme Court of Appeals of Virginia.

June 10, 1940.

Error from Circuit Court, Accomack County; John E. Nottingham, Judge.

Action by the State of Maryland, for the use of Ida May Joynes and others, against Harvey T. Coard for death of Henry T. Joynes as result of an automobile accident in Pocomoke City, Md. To review a judgment for defendant, the plaintiff brings error, and the defendant assigns cross error.

Reversed and remanded.

Argued before CAMPBELL, C.T., and HOLT, HUDGINS, GREGORY, BROWNING, and SPRATLEY, JJ.

Jeff F. Walter, of Onley, and J. Brooks Mapp and William King Mapp, both of Keller, for plaintiff in error.

H. Ames Drummond and Ernest Ruedi-ger, both of Accomac, and Godfrey Child, of Pocomoke City, Md., for defendant in error.

HOLT, Justice.

The State of Maryland, suing for the use of Ida May Joynes, widow of Henry T. Joynes, deceased, and for the use of his five children, all residents of Virginia, brought this action in the Accomack Circuit Court against Harvey T. Coard, also a resident of Virginia, seeking the recovery of damages in the sum of $10,000 for the death of Henry T. Joynes. The latter was killed instantly on the night of November 24, 1938, when an automobile owned by Coard and in which he, Coard, was riding but which at the time was being driven by Miss Margaret E. Hickman, collided with the rear end of the deceased's car, parked on a street in Pocomoke City, Maryland, and also struck the deceased who was standing either on the running board or on the street beside his car.

While both the deceased and his widow and children, on the one hand, and the defendant, Coard, on the other, were, and the widow and children still are, resi-dents of Virginia, and while this proceeding was instituted in a Virginia court, yet as the accident occurred in Maryland any right of action for the resulting death arises out of the law of Maryland and not out of that of Virginia. This, of course, was recognized by counsel for the plaintiff, and in preparing the notice of motion for judgment various provisions of the Maryland statutes relating to the subject matter were alleged as legal basis of the action.

The defendant filed a demurrer to the notice of motion for judgment on the following grounds:

"1. That the case is not within the jurisdiction of the courts of this State; and

"2. Because the motion for judgment shows on its face such contributory negligence on the part of the deceased as to bar a recovery."

The demurrer was overruled. However, at the conclusion of the plaintiff's evidence, the trial court sustained the defendant's motion to strike it, which ruling of course resulted in a verdict and judgment for the defendant. The case comes here on a writ of error granted the plaintiff. The defendant assigns cross-error, based upon the action of the trial court in overruling the demurrer to the notice of motion for judgment in so far as the demurrer called in question the jurisdiction of the courts of this State.

First, then, as to the question of jurisdiction. The challenge was and is predicated upon the contention that the Maryland statute relating to actions for damages for death by wrongful act differs from the Virginia statute on that subject to such an extent that the principle of comity does not apply, and hence that the courts of Virginia are not warranted in entertaining an action founded on the Maryland statute. Code Pub.Gen.Laws Md.1924, art. 67, § 1 et seq.; Code Va. 1936, § 5786 et seq.

The differences in the two statutes are stated in the brief of the defendant's counsel to be:

1. That by the Maryland statute the action must be in the name of that State for the use of the prescribed beneficiaries, whereas by the Virginia statute it must be in the name of the decedent's personal representative.

2. That the Maryland statute does not limit the amount of the recovery, whereas the Virginia statute fixes $10,000 as the limit.

3. That the Maryland statute authorizes a recovery on behalf of the surviving wife, husband, parent, or child and on their behalf only, whereas the Virginia statute "places no limitation whatever on the class of persons that may recover."

Incidentally, the quoted words are too sweeping as a characterization of the Virginia statute.

As regards the case at bar, it is obvious that none of the foregoing differences is of a substantial nature. Indeed, they are little, if any, more than academic, since (a) whether the action be in the name of the State or in the name of the executor or administrator is a matter purely of form, inasmuch as, in either instance, the nominal plaintiff sues in a representative capacity, (b) the sum prayed for is $10,-000, which is the limit of recovery under the Virginia statute, and (c) the beneficiaries in whose behalf the action is brought are the widow and children of the deceased, and these are included in both statutes. So that, as a practical matter and as concerns the present case, it seems to us that there are no points of material difference in the two statutes.

However, as counsel for the defendant have raised the question of jurisdiction and have argued it with considerable earnestness, we shall pursue it somewhat further, although the general rule and the reasons underlying it have been so long recognized by most courts that any extended discussion is quite unnecessary.

In Nelson v. Chesapeake & Ohio Railroad Co., 88 Va. 971, 14 S.E. 838, 15 L.R.A. 583, an action was brought in a Virginia court by the administrator of the estate of a decedent against the railroad company for damages for the death of his intestate. The accident having occurred in West Virginia, the action was based upon the statute of that State. The railroad company demurred to the declaration, partly on the ground that the Virginia court had no jurisdiction of the subject matter. In an opinion by Lewis, P., the question of jurisdiction, in both its fundamental and more or less incidental aspects, was dealt with in a clear and concise way. We quote from it as follows:

"It is contended, however, that the statute, whatever may be its nature, can have no extraterritorial operation, and, there-fore that an action dependent upon it can be maintained only in the state of West Virginia.

"At common law, all personal actions, whether ex delicto or ex contractu, are transitory, and may be brought anywhere the defendant can be found. * * *

"Independently of statute, however, the general rule is that all torts die with the person. Consequently the right to sue for personal injuries causing death is purely statutory. The question, therefore, arises, whether such a cause of action arising in one state may be asserted in another. There is no doubt that, in a general sense, a statute can have no operation beyond the state in which it is enacted. But where a right to sue is given by statute in one state, we can see no good reason why an action to enforce that right should not be entertained in the courts of another state, on the ground of comity, just as if it were a common-law right, provided, of course, it be not inconsistent with the laws or policy of the latter state. If this were not so, a cause of action [of any sort] arising in a state whose laws are codified could not be asserted in another state, because the right to sue is statutory.

"The true test, therefore, in all such cases would seem to be this: Is the foreign statute contrary to the known policy, or prejudicial to the interest, of the state in which the suit is brought? And if it is not, then it makes no difference whether the right asserted be given by the common law or by statute."

In that case the test question posed by the court was answered in the negative, the court holding that the statute of West Virginia contained nothing that was in conflict with the policy of Virginia as expressed in her own statute, nor anything prejudicial to the latter State's interests.

But counsel cite certain Maryland cases wherein the court of that State declined to enforce rights of action based upon the death-by-negligence statutes of other States, among them West Virginia, and reason thus:

"The Supreme Court of the State of Virginia having decided that the West Virginia and Virginia statutes are similar, and the Supreme Court of the State of Maryland having decided that the statute of the State of Maryland and the statute of the State of West Virginia are dissimilar, it follows that the statutes of the State of Maryland and the statute of the State of Virginia are dissimilar, and the court should have sustained the demurrer filed by the defendant on the ground that the State of Virginia had no jurisdiction in this case."

Regarding the above, we deem it sufficient to say that the terms "similar" and "dissimilar" obviously are much too indefinite to serve as premises. Besides, we do not think the matter is quite so simple as counsel's reasoning would imply.

We have examined the Maryland cases cited by counsel, namely, Ash v. Baltimore & O. Railroad Co. 72 Md. 144, 19 A. 643, 20 Am.St.Rep. 461; Dronenburg v. Harris, 108 Md. 597, 71 A. 81; and Davis v. Ruzicka, 170 Md. 112, 183 A. 569. It does appear from those decisions that the disposition of the Maryland court is to decline jurisdiction in death-by-negligence cases where the right to sue is given by the statute of another State. We think, though, that that general attitude is contrary both to the weight and to the trend of authority. And while the rule of comity rests in a measure upon the custom of reciprocity, we do not understand that it by any means is founded solely, or even chiefly, upon such custom, but rather upon what appear to be the just rights of the parties litigant. As observed by the Missouri court in Hughes v. Winkleman, 24.3 Mo. 81, 147 S.W. 994, 997, L.R.A.1916A, 1007:

"At very root, comity is courtesy. In jurisprudence, however, comity is a kind of courtesy which, subject to exceptions, is...