(after stating the facts as above). The defendant contends that the Virginia statute under which the right of action accrued is so unlike the statutory right of action which prevails in this state that the action should not be entertained here. The motion has been argued upon the theory, set forth in Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48, 38 Am. Rep. 491, that the exercise of jurisdiction depends upon the similarity of the Virginia statute to the statutory remedies prescribed by the statutes of this state for death, namely, the Workmen’s Compensation Law (Laws 1914, c. 41. [Consol. Laws, c. 67]), and the general right of action existing by virtue of sections 1902-1908 of the Code of Civil Procedure. The dissimilarity with respect to the Workmen’s Compensation Law is obvious, but inconclusive. Although the remedy provided by that statute is, so far as it goes, exclusive of all other rights or remedies for the death of employes resulting from injuries (Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 114 N. E. 795), still that act, which applies in terms irrespective of fault, extends an option to the legal representative
Upon such comparison the defendant asserts that the following substantial differences appear: The Virginia statute (1) permits the recovery of exemplary damages; (2) in default of wife and next of kin the recovery becomes part of the estate of the deceased to be disposed of according to law; (3) the jury may direct in what proportion the damages shall be distributed among the beneficiaries.
[1,2] The motion could be disposed of on the short ground that none of these distinctions applies in the pending action. For the purposes of the issue raised by this motion, it is the particular application sought to be made of the statute that controls; it is the cause of action set up in the complaint, not the ultimate possibilities of the foreign statute. Zeikus v. Florida East Coast Ry. Co., 153 App. Div. 349, 138 N. Y. Supp. 478. Exemplary damages are not recoverable under this complaint. While the complainant need not necessarily claim such damages by that name in the complaint, still, in' Virginia, as here, facts showing the right to recover such damages must be alleged. Wood v. Bank, 100 Va. 306, 40 S. E. 931. No such facts are alleged in this complaint. Furthermore,' it appears from the complaint that the deceased left surviving him his wife and his father. By the express terms of the statute, therefore, the wife would take the entire amount recovered.
[3-5] I do not concede, however, the validity of the assumption that the exercise of jurisdiction in such cases is dependent upon the existence in the forum of a statute similar to the foreign statute under which the right of action arose. The general rule is that actions for personal torts are transitory in their nature and may be brought wherever jurisdiction of the wrongdoer can be obtained. Whenever such a right of action has become fixed and legal liability incurred, whether at common law or under a statute, it will be enforced in another state unless there is a good reason for refusing to enforce it.' If statutory, it will be enforced, not because of the existence of the statute, which of course does not extend ex proprio vigore beyond the boundaries of the state in which it is enacted, but because it is a right which the plaintiff legitimately acquired and which still belongs to him. The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation which, like other obligations, follows the person, and may be enforced wherever the person may be found. The recognized grounds upon which the court resorted to may properly decline to entertain jurisdiction are: That the action is penal; that it contravenes some established and important policy of the state; that the local judicial procedure is inadequate to do substantial justice in the premises. Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Flash v. Conn, 109
The limitation suggested in Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48, 38 Am. Rep. 491, and repeated in Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803, was in both expressly based upon the authority of McDonald v. Mallory, 77 N. Y. 546, 33 Am. Rep. 664, a case involving no foreign statute, but depending upon the question whether the cause of action for death by negligence arose within the territorial jurisdiction of the state of New York; and the court held that a right of action for causing death at sea, on board a vessel hailing from and registered in a port within this state, depends upon the laws of this state. Alluding to the rule that the common law is presumed to be similar everywhere, and to the distinction in this respect between the common and statutory law, Judge Rapallo said:
“It is settled by the law of our own courts that the right of action for causing death by negligence exists only by virtue of the statute, and that where the wrong is committed within a foreign state or country, no action therefor can be maintained here, at least without proof of the existence of a similar statute in the place where the wrong was committed. Whitford v. Panama R. R. Co., 23 N. Y. 465; Crowley v. Panama R. R. Co., 30 Barb. (N. Y.) 99; Beach v. Bay State Steamboat Co., 30 Barb. (N. Y.) 433; Vandoventer v. N. Y. & N. H. R. R. Co., 27 Barb. (N. Y.) 244. These decisions rest upon the plain ground that our statute can have no operation within a foreign jurisdiction, and that with respect to positive statute law it cannot be presumed that the laws of other states or countries are similar to our own.”
Obviously, if the source of the right sought to be enforced is the law of the place of the act, the absence-of a similar right of action in the forum cannot affect the principle. Of course, the recognition by the law of the forum of the foreign right of action, whether common law or statutory, precludes any issue of contrariety in public-policy, and in most cases it is only in such connection that the similarity of statutory rights is referred to. But the result of the federal cases was stated by Mr. Justice Gray in Huntington v. Attrill, 146 U. S. 657, 670, 13 Sup. Ct. 224, 229 (36 L. Ed. 1123), to be that:
“A private action may be maintained in one state, if not contrary to its own policy, for sncb a wrong done in another and actionable there, although a like wrong would not be actionable in the state where the suit is brought.”
Apparently this is the prevailing view in the state courts as well. Herrick v. Minneapolis & St. Rouis Ry. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771; Walsh v. New York & N. E. R. R. Co., 160 Mass. 571, 36 N. E. 584, 39 Am. St. Rep. 514. In the latter case, where a recovery which could not have been had under the law of the forum was sustained because not opposed to the policy of the state, the court hesitated to adopt to its full extent the doctrine that whether the domestic law provides for redress in like cases should in principle be immaterial so long as the right is a reasonable-one and not Opposed to the interests of the state, only because it went further than the decision in Richardson v. New York Central R. R. Co., 98 Mass. 85. Since the latter decision has recently been expressly overruled in Hanlon v. Frederick Leyland & Co., 223 Mass. 438, 111 N. E. 907, L. R. A. 1917A, 34, presumably the general doctrine prevails.
[6] The bearing of all this upon the further question of public policy is plain. If enforcement be not predicated on a common right of action, certainly mere differences in the contents of a common statutory right of action will not avail to defeat the action on grounds of public policy. Otherwise the exception would be practically as broad as the right to which it attaches; for the existence of conflict between the foreign and tire domestic law, which alone creates an occasion for the application of the principles of comity, would at once call the exception into operation. The considerations of public policy which war
[7] The defendant has cited and upon statement Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803, that the extent of damages pertains to the remedy rather than to the substantive right. Since, upon that theory, this action might be maintainable for such damages as. would be recoverable under the law of New York, although not maintainable for such damages as the Virginia statute allows, it is necessary that I should make it plain, for the purpose of this motion, that I proceed on no such theory. I adopt to its full extent what I conceive to be the true principle, that the measure, elements, and extent of the damages given by the law of the state in which the action arose pertain to the substance of the right, not to the remedy, and that the question of its enforcement in another jurisdiction must be determined with respect to the right as given. The principle was clearly formulated by Mr. Justice Holmes in Slater v. Mexican National R. R. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900. When a liability is enforced in a jurisdiction foreign to the place of the wrongful act, that does not mean that the act is in any degree subject to the lex fori with regard either to its quality or its consequences. Inasmuch as the only source of the obligation is the law of the place of the act, that law must determine its extent. Therefore it is quite inadmissible to resort to the law of the place of the act so far as to show that the act was a tort, and then to determine the consequences according to the accident of the place where the defendant may happen to be found.
The Wooden case, supra, arose on demurrer to the complaint, the contention being that the Pennsylvania death statute sued on was contrary to the policy of the forum, in that, while the damages recoverable were limited to $5,000 in this state, they were unlimited in Pennsyl - vania. In denying that contention, Judge Finch asserted that the restriction pertained to the remedy rather than to the right; it was a limitation upon the discretion of the jury in fixing the amount of damages, not upon the right of action or its inherent elements and character.
“The difference between the two statutes, therefore, does not strictly affect the rule of damages, but raliier the extent of the damages, and thatPage 694extent, as limited or unlimited, does not enter into any definition of tlie riglit enforced or the cause of action permitted to be prosecuted. And so the causes of action in the two forums are not thereby made dissimilar.”
It is to be observed that what is said about the application of the local restriction is merely by way of argument in support of the court’s position that the difference between the two statutes was not such as to preclude the exercise of jurisdiction. While this dictum has never been expressly repudiated, its weight has been seriously impaired by subsequent decisions. In O’Reilly v. Utah Stage Co., 87 Hun, 406, 34 N. Y. Supp. 358, it was held at General Term that the provision of the Constitution of 1894 abolishing the statutory limitation upon the amount of recovery did not operate retrospectively so as to cover an existing cause of action. The decision was based upon the ground that the statutory limit pertained to the substantive right, not merely to the remedy, and therefore rests upon a view of the nature of the statutory limitation which is diametrically opposed to that upon which the dictum in the Wooden case rests. This decision was approved by the Court of Appeals in a per curiam opinion in Isola v. Weber, 147 N. Y. 329, 41 N. E. 704, which reversed a contrary decision in 13 Misc. Rep. 97, 34 N. Y. Supp. 77. Neither of'these cases, however, refers to the Wooden case. ’ Again in Kiefer v. Grand Trunk R. R. Co., 12 App. Div. 28, 42 N. Y. Supp. 171, in an action for death arising under an Ontario statute prior to the abolition of the statutory limitation in this state, it was held that the provision of the Code section prescribing the $5,000 limitation, which required the clerk to add to the recovery and include in the judgment interest thereon from the date of the decedent’s death, did not apply. The decision is upon the ground that the addition of interest under the statute was a matter of substantive right, not a mere matter of remedy. This decision was affirmed by the Court of Appeals on the opinion below. 153 N. Y. 688, 48 N. E. 1105. In the latest case making any reference to the general subject, where an express company, sued here for loss of baggage in Massachusetts, sought to claim the local statutory exemption from all damages in excess of $150, the court held that:
“Tbe laws of Massachusetts, which in the absence of proof are presumed to lie the common law of the land, must control the amount of damages.” Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363, 95 N. E. 808, 35 L. R. A. (N. S.) 537, Ann. Cas. 1912D, 1150.
The effect of th^se decisions seems to be to destroy the foundation upon which the dictum in the Wooden case rests, viz., that the statutory limit pertains to the remedy rather than to the substantive right. While Higgins v. Central New England R. R. Co., 155 Mass. 176, 29 N. E. 534, 31 Am. St. Rep. 544, and Dorr Cattle Co. v. Des Moines National Bank, 127 Iowa, 153, 98 N. W. 918, 102 N. W. 836, 4 Ann. Cas. 519, support the doctrine of the Wooden case, there is controlling authority to the contrary. Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958; Powell v. Great Northern Ry. Co., 102 Minn. 448, 113 N. W. 1017; Louisville & Nashville R. R. Co. v. Graham’s Adm’r, 98 Ky. 688, 34 S. W. 229.
[8, 9] In applying the foregoing principles to the right of action given by the Virginia statute, it must not be overlooked that in federal
The facts that the jury may apportion the damages among the beneficiaries, and that the beneficiaries may not in every case be the same under each statute, do not warrant rejection on that ground. Stewart v. Baltimore & Ohio R. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537. Nor idoes the fact that the Virginia statute allows elements of damage which are not recognized under the New York statute. Resorting to the construction of the statute by the Supreme Court of Virginia, it is true that it was said in Matthews v. Warner’s Adm’r, 70 Va. (29 Grat.) 570, 26 Am. Rep. 396, that the Virginia statute permitted recovery of exemplary damages. But the court there had under consideration a case in which the decedent had been killed under circumstances which approximated murder in the second degree. The point actually decided was that the trial judge had properly refused to instruct the jury that in assessing damages they must confine themselves to injuries of which a pecuniary estimate could be made in reference to a reasonable expectation of pecuniary benefit to the decedent’s mother from the continuance of his life, and could not take into consideration the mental suffering occasioned to her by his death. If the jury are not confined to mere pecuniary'loss to the survivors,°of course they may be governed by other considerations in assessing fair and just damages under all the surrounding circumstances of the particular case. What those considerations are, as applied to an action like this for the death of an employé through the negligence of his employer, are set forth in Baltimore & Ohio R. R. Co. v. Noell’s Adm’r, 73 Va. (32 Grat.) 394, where the court approved an instruction which directed the jury that in ascertaining the damages they should find the sum, in the first place, with reference to the pecuniary loss sustained by a mother in the death of her son, and then add thereto compensation for
So far as recovery for the mental anguish of the beneficiary is concerned, the precise issue was decided adversely to the defendant’s contention in Texas & N. O. R. R. Co. v. Gross, 60 Tex. Civ. App. 621, 128 S. W. 1173, upon reasoning which commends itself to my judgment. Assuming that exemplary damages may also be recovered in a proper case, that fact raises no conflict with the general policy of New York. See Bruce’s Adm’r v. Cincinnati R. R. Co., 83 Ky. 174; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53; Illinois Central R. R. Co. v. Crudup, 63 Miss. 291. While the corresponding New York statute confines recovery in such cases to pecuniary loss, exemplary damages are recognized and allowed by the law of this state, and cannot, therefore, be. said, to infringe its policy. Fundamental agreement in the main and substantial characteristics of the foreign and domestic law is not affected by the differences of detail which the defendant points out.
The motion is denied.
1.
The limits of state action, in view of article 4, § 2, of the Constitution of the United States, can hardly be said to be settled. Chambers v. Baltimore & Ohio R. R. Co., 207 U. S. 142, 28 Sup. Ct. 34, 52 L. Ed. 143; Dougherty v. American Co., 255 Ill. 369, 99 N. E. 619, L. R. A. 1915E, 955, Ann. Cas. 1913D, 568; Eingartner v. Illinois Steel Co., 94 Wis. 80, 68 N. W. 664. 34 L. R. A. 503, 59 Am. St. Rep. 859. Limitations under the “full faith and credit” clause were applied in Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123.