The plaintiff and defendant, residents of New York, are wife and husband. The action is for personal injuries sustained, through the defendant's gross negligence, by the plaintiff in Connecticut while a passenger in defendant's automobile. The complaint alleges that by the law of Connecticut a wife, under such circumstances, may maintain an action against a husband. The Appellate Division affirmed a judgment dismissing the complaint for insufficiency and lack of jurisdiction. It was held that "the cause of action asserted offends our public policy to so great an extent that the court is without jurisdiction to entertain it."
Without pausing to inquire whether the word "jurisdiction" was accurately used, we accept it as a convenient symbol applying to a refusal to enforce a claim created by a foreign law. In approaching the question whether the refusal was justified, certain general principles may be dogmatically stated. The cause of action rests primarily upon the law of Connecticut. If we entertain it, whether we say we are enforcing the original foreign law or a copy of it incorporated in our own rule of conflicts, is immaterial as a practical matter. It is not penal; it is transitory; and our courts will enforce it according to the substantive law of Connecticut unless it "is contrary to the strong public policy" of our own State. (Restatement of Law of Conflict of Laws, § 612.) We are left, then, to *Page 475 determine whether the law of Connecticut, which permits a wife to sue a husband for personal injuries, is contrary to some strong public policy of New York.
The public policy concept is a vague and variable phenomenon. When we find it necessary, in a general way, to embody it in words, we are apt to resort to the language used in People v.Hawkins (157 N.Y. 1, 12), and say that when we use the term "we mean the law of the State, whether found in the Constitution, the statutes or judicial records." We go further, sometimes, and in explanation say that the law so found evidences "the will of the Legislature" (Straus Co. v. Canadian Pacific Ry. Co.,254 N.Y. 407, 413), and so, perhaps, represents an inarticulate public opinion on the specific matter involved. In that broad sense it may be true to say that back of every law there is something which is conventionally referred to as public policy. Obviously, however, the bulk of public policy, so defined, relates to "minor morals of expediency and debatable questions of internal policy." Hence, the difference between our own public policy and that of our sister States is for the most part disregarded by our own law of conflict of laws. In that field, the concept of public policy is greatly narrowed and specialized.People v. Hawkins (supra) was a non-conflict case. The "strong public policy," which alone serves to prevent the enforcement of foreign rights, must have relation to something which "in its nature offends our sense of justice or menaces the public welfare." (Loucks v. Standard Oil Co., 224 N.Y. 99,110.) Our courts "do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of our common weal." (Id. p. 111.)
It may be freely conceded that back of the New York rule which withholds from the wife the right to sue the husband for personal injuries is a public policy of the kind which is back of every other rule of law. But neither in *Page 476 the history of the rule nor in its operation is there anything to indicate that that policy is founded upon a definite view — or even upon some vague feeling — that justice or the public welfare would be affected by a contrary rule. There is no need again to trace the course of decision by which the rule as an exception became "engrafted upon" (Schubert v. Schubert Wagon Co.,249 N.Y. 253, 258) what is now Domestic Relations Law (Cons. Laws, ch. 14), section 57. For that story and its consequences reference may be had to the opinion of POUND, J., in Allen v.Allen (246 N.Y. 571). It is enough to say that the rule exists merely as a product of judicial interpretation, is vestigial in character, and embodies no tenable policy of morals or of social welfare. To urge that it survives because it is an aid to conjugal peace disregards reality. Conjugal peace would be as seriously jarred by an action for breach of contract, or on a promissory note, or for an injury to property, real or personal, all of which the law permits, as by one for personal injury. In short, even though we assume that there is some shadowy element of policy back of the rule, it should give way to "the controlling public policy * * * that the courts of each State shall give effect to all valid causes of action created by the laws of another State except possibly in extreme cases." (HUBBS, J., in Herzog v. Stern, 264 N.Y. 379, 387; cf. Restatement of Law of Conflict of Laws, § 612, comment (c); 44 Yale Law Journal, 158.)
Resort to precedent in cases involving the doctrine of public policy is seldom useful. (Cf. Goodhart, Essays in Jurisprudence and The Common Law, p. 67.) Herzog v. Stern (supra) is not in conflict with the view herein expressed. The decision there went on the ground that each sovereign has complete control of the devolution and administration of the property of a deceased resident, and, since our own statutory scheme expressly excluded the claim sought to be enforced, our courts were without jurisdiction. There was, therefore, no room for any *Page 477 consideration of the question of public policy (p. 384), though the view was expressed obiter that the same conclusion might be reached on that ground.
The judgment should be reversed, with costs in all courts.
CRANE, Ch. J., O'BRIEN, HUBBS and LOUGHRAN, JJ., concur with LEHMAN, J.; CROUCH, J., dissents in opinion, in which FINCH, J., concurs.
Judgment affirmed.