Walsh v. Boston & M.R.r.

• Decision Date: 07 April 1909
• Citation: 201 Mass. 527,88 N.E. 12
• Parties: WALSH v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 527

88 N.E. 12

WALSH v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Barnstable.

April 7, 1909

COUNSEL

Jos Walsh, pro se.

Chas S. Pierce and H. H. Baker, for appellee.

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...