Wellman v. Mead

Decision Date20 May 1919
Docket NumberNo. 147.,147.
Citation107 A. 396
PartiesWELLMAN v. MEAD.
CourtVermont Supreme Court

Exceptions from Windbam County Court; Zed S. Stanton, Judge.

Action by Frank L. Wellman, administrator of the estate of Kate Stone, against Barney E. Mead. There was a verdict and judgment for the plaintiff, and defendant excepted. Exceptions overruled, with directions to plaintiff to amend his complaint, upon the making of which amendment judgment will be affirmed.

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

Herbert G. Barber and Frank E. Barber, both of Brattleboro, for plaintiff.

Chase & Chase and William R. Daley, all of Brattleboro, for defendant.

TAYLOR, J. Plaintiff sues to recover damages for the death of his intestate, claimed to have been caused by the negligence of the defendant. Trial was by jury, with verdict and judgment for the plaintiff, and the defendant brings exceptions. The accident in question occurred October 31, 1916, while intestate was riding as a passenger in an automobile driven by the defendant. The occupants of the automobile were the defendant, plaintiff's intestate, her husband, and one Harrington. All were residents of Brattleboro, this state. Intestate's husband had employed the defendant to take the party to Springfield, Mass., and return, and the accident happened on the return trip between 11 and 12 o'clock at night. At a point about a mile below South Deerfield, Mass., the highway they were traversing makes a sharp turn through an underpass. The defendant failed to negotiate the turn properly and the automobile collided with the stone abutment of the underpass, wrecking the car and inflicting injuries upon the intestate from which she died December 13, 1916. The declaration charges negligence in the operation of the automobile as the proximate cause of the injury and counts on a recovery under the laws of the commonwealth of Massachusetts, alleging damages in the sum of $5,000.

It is desirable to consider at the outset the questions raised by defendant's motions. At the close of the plaintiff's evidence and again at the close of all the evidence, the defendant moved for a directed verdict and to dismiss the action for want of jurisdiction. The court overruled the motions pro forma and the defendant was allowed exceptions. Several grounds are specified, all based, however, on the claim that the statute of Massachusetts under which the plaintiff seeks to recover is a penal statute and is not enforceable in the courts of this state. Chief Justice Marshall has given us the following fundamental maxim of private international law:

"The courts of no country execute the penal laws of another." The Antelope, 10 Wheat. 66, 123, 6 L. Ed. 268, 282.

Thus the courts of one state will not enforce the penal statutes of another state. Adams v. Fitchburg R. R. Co., 67 Vt. 76, 30 Atl. 687, 48 Am. St. Rep. 800; Blaine v. Curtis, 59 Vt. 120, 7 Atl. 708, 59 Am. Rep. 702; Farr v. Briggs' Estate, 72 Vt. 225, 47 Atl. 793, 82 Am. St. Rep. 930.

It is essential to a proper determination of the question presented by the motions to consider the scope and meaning of this maxim. The words "penal" and "penalty" have been used in various senses in our municipal law. Failure to recognize this fact and to give the words a common interpretation when considering statutes in their international aspect have, we believe, led to much of the confusion found in the cases. In Adams v. Fitchburg R. R. Co., this court had under consideration a statute of Massachusetts similar to the one involved here. It was there said that in considering whether the statute in question was penal or remedial the true test was whether the main purpose of the statute was the giving of compensation for an injury sustained, or the infliction of a punishment upon the wrongdoer. Applying this test, the court held that the statute was penal, and that the action on it could not be maintained here. The defendant contends, and we think rightly, that the statute now in question cannot be distinguished in this regard from the one then under consideration. While the Adams Case, if followed, would dispose of the case at bar in the defendant's favor, for reasons that will presently appear we think the question should be re-examined.

The evident tendency of modern decisions is toward a broader comlty in the enforcement of rights created by the legislation of sister states. Walsh v. Boston & Maine R. R., 201 Mass. 527, 88 N. E. 12. It is probable that the trend in this direction has been influenced to quite an extent by certain decisions of the Supreme Court of the United States. The question when a statute of another state should be regarded as penal presents an important federal aspect that was apparently overlooked in the Adams Case. While, of course, the full faith and credit clause of the federal Constitution does not relate to the statutes of a sister jurisdiction, and it is everywhere recognized that the obligation to enforce rights growing out of such statutes rests in a sense on the principles of comity among the states, nevertheless, the fact that it ceases to be a matter of comity and involves a federal question when the suit is on a judgment secured in the courts of the enacting state makes it desirable, for the sake of uniformity, that the rule prevailing in the Supreme Court of the United States should be adopted by the state courts. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, decided in December 1892, has come to be regarded as a leading case on the question and marks the departure referred to above. The case involved a statute of New York imposing liability to creditors of a corporation upon its officers who make a false certificate of the condition of the corporation. Plaintiff sued the defendant in New York as a stockholder and director of a corporation liable under this statute and recovered judgment. He brought a bill in chancery in Maryland to set aside an alleged fraudulent transfer of stock and to recover the New York judgment. The Court of Appeals of Maryland held that the New York statute was penal and declined to entertain jurisdiction. 70 Md. 191, 16 Atl. 651, 2 L. R. A. 779, 14 Am. St. Rep. 344. Thereupon plaintiff took the case to the Supreme Court of the United States on a writ of error. It was there held that the question whether the Maryland court had denied due faith and credit to the New York judgment was a federal question, and that if a suit to enforce a judgment rendered in one state, and which has not changed the essential nature of the liability, is brought in the courts of another state, the federal court, in order to determine on writ of error whether the court of the latter state has given full faith and credit to the judgment, must determine for itself whether the original cause of action was penal in the international sense. It was said that if the state court, in an action to enforce the original liability under the law of another state, passes upon the nature of that liability and nothing else, the court cannot review its decision; but if the state court declines to give full faith and credit to a judgment of another state because of its opinion as to the nature of the cause of action on which the judgment was recovered, the court, in determining whether full faith and credit have been given to that judgment, must decide for itself the nature of the original liability.

Upon an exhaustive examination of the question the court held that the question whether a statute of one state which in some aspects may be called penal is a penal law in the international sense, so that it cannot be enforced in the courts of another state, depends upon the question whether its purpose is to punish an offense against the public justice of the state or to afford a private remedy to a person injured by the wrongful act. It should be noted that the rule embraces not only prosecutions and sentences for crimes and misdemeanors, but all suits in favor of the state for the recovery of pecuniary penalties for the violation of municipal laws. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239. By this classification penal laws which cannot be enforced extraterritorially are confined to laws defining and punishing offenses against the state. Huntington v. Attrill, supra; Dennick v. Central R. R. Co., 103 U. S. 17, 26 L. Ed. 441.

The rule laid down in Huntington v. Attrill has been reaffirmed in Northern Pacific R. R. Co. v. Babcock, 154 U, S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958, and Brady v. Daly, 175 U. S. 148, 20 Sup. Ct. 62, 44 L. Ed. 109. It has been adopted and followed by several state courts in their later decisions. See Gulledge Bros. Lbr. Co. v. Wenatchee Land Co., 122 Minn. 266, 142 N. W. 305, 46 L. R A. (N. S.) 697; Louisville & N. R. Co. v. McCaskell, 98 Miss. 20, 53 South. 348; Loucks v. Standard Oil Co., 224 N. Y. 99, 120 N. E. 198. In Hill v. Boston & Maine R. R., 77 N. H. 151, 89 Atl. 482, Ann. Cas. 1914C, 714, the rule in Huntington v. Attrill is quoted with approval, the court saying that where the controlling purpose of a statute is to impose a punishment for violating its provisions it will not be enforced in a foreign jurisdiction; but that a statute within this rule may be penal in one aspect and remedial in another. In Great Western Mac. Co. v. Smith, 87 Kan. 331, 124 Pac. 414, 41 L. R. A. (N. S.) 379, Ann. Cas. 1913E, 243, It was said that the rule that a penal statute of another state will not be enforced applies only to statutes entirely penal, and not to those that are in part compensatory. To the same effect is Southern Ry. Co. v. Decker, 5 Ga. App. 21, 62 S. E. 678.

The question involved in Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, was before the judicial committee of the Privy Council of England upon an appeal from Canada in a suit between the same parties. Lord Watson delivered the...

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