OPINION
KNOWLTON
C.J.
This
action is brought by the administrator of Lottie M. Mitchell
late of Falmouth, deceased, to recover for her death, caused
by the defendant's negligence in the management of one of
its cars upon which the intestate was riding in the state of
New York. It is founded upon a statute of New York, being a
part of the Code of Civil Procedure, as follows:
'Sec.
1902. The executor or administrator of a decedent who has
left, him or her surviving, a husband, wife or next of kin,
may maintain an action to recover damages for a wrongful
act, neglect or default by which the decedent's death
was caused, against a natural person who, or a corporation
which, would have been liable to such an action
if death had not ensued. Such an action must be brought
within two years after decedent's death.
'Sec.
1903. The damages recovered in an action brought as
prescribed in the last section are exclusively for the
decedent's husband, wife and next of kin, and when they
are collected they must be distributed by the plaintiff as
if they were unbequeathed assets, left in his hands after
payment of all debts and expenses of administration. But
the plaintiff may deduct therefrom the expenses of the
action and his commissions upon the residue, which must be
allowed by the surrogate, upon notice given in such manner
and to such person as the surrogate may deem proper.
'Sec.
1904. The damages awarded to the plaintiff may be such a
sum as the jury, on a writ of inquiry or on a trial, or
where the issues of fact are tried without a jury, the
court or referee deems to be a fair and just compensation
for the pecuniary injuries resulting from the
decedent's death, to the persons for whom the action is
brought. When final judgment is rendered, the clerk must
add to the sum so awarded interest thereupon from the
decedent's death, and include it in the judgment. The
inquisition, verdict, report or decision may specify the
day from which interest is to be computed. If it omits to
do so the day may be determined by the clerk, upon
affidavits.'
The
case comes before us on a demurrer to the plaintiff's
declaration.
The
question is whether an action can be maintained under this
statute in this commonwealth. The general rules applicable to
the question were stated in Howarth v. Lombard, 175
Mass. 570-572, 56 N.E. 888, 889, 49 L. R. A. 301, as follows:
'It is familiar law that statutes do not extend ex
proprio vigore beyond the boundaries of the state in which
they are enacted. If they are merely penal they cannot be
enforced in another state. If they furnish merely a local
remedy for the invasion of a recognized right which is
protected elsewhere in other ways, they cannot be given
effect in another jurisdiction. Richardson v. N.Y. C. R.
R., 98 Mass. 85-89. The fundamental question is whether
there is a substantive right originating in one state, and a
corresponding liability which follows the person against whom
it is sought to be enforced
into another state. Such a right arising under the common law
is enforceable everywhere. Such a right arising under a local
statute will be enforced ex comitate in another state, unless
there is a good reason for refusing to enforce it. It will be
enforced, not because of the existence of the statute, but
because it is a right which the plaintiff
legitimately acquired, and which still belongs to him. If the
statute creating the right is against the policy of the law
of the neighboring state, that is a sufficient reason for
refusing to enforce the right there. In the neighboring
state, in such a case, it will not be considered a right. If
the enforcement of a statutory right in a neighboring state,
in the manner proposed, will work injustice to its citizens,
considerations of comity do not require the recognition of it
by the courts of that state. If the right, by the terms of
the statute creating it, is to be enforced by prescribed
proceedings within the state, the right is limited by the
statute and can only be enforced in accordance with the
statute. If it is of such a kind that, with a due regard for
the interests of the parties, a proper remedy can be given
only in the jurisdiction where it is created, it will not be
enforced elsewhere. But if there is a substantive right, of a
kind which is generally recognized, courts, through comity,
ought to regard it and enforce it, as well when it arises
under a statute of another state as when it arises at common
law, unless there is some good reason for disregarding
it.'
The
decision in Higgins v. Central New England & Western R
R., 155 Mass. 176, 29 N.E. 534, 31 Am. St. Rep. 544,
goes far towards determining our action in the present case.
A statute of Connecticut was before the court, which in its
substantive provisions was almost identical with the statute
quoted above. It provided for the survival to the executor or
administrator of 'all actions for injury to the person,
whether the same do or do not instantaneously or otherwise
result in death.' Gen. St. 1887, § 1008. It gave a
recovery of damages for the benefit of the husband or wife
and heirs of the deceased person, after deducting the costs
and expenses of suit. The amount of damages to be recovered
for a death from negligence was limited to $5,000. It was
held that the right of action recognized by the statute was a
right of the deceased person, founded on a wrong done him
before his death, and that this right existed in his
lifetime, even if he died
instantaneously after the injury. Under the statute this
right survived to the executor or administrator, for the
benefit of the husband or wife or next of kin, and an action
brought under the statute was simply for the enforcement of
the deceased's right, protected and preserved by the
statute for his relatives. In this respect the statute now
before us is the same. It recognizes the existence of a right
founded on the 'wrongful act, neglect or default by which
the decedent's death was caused,' and it applies
alike to cases where death occurs instantaneously and to
those where it follows the injury after a...
