I dissent from the conclusion that the Massachusetts statute is a penal statute in the international sense, and from the conclusion that its enforcement would contravene the public policy of the State of Connecticut.
Upon the question of what laws are penal in an international sense so that they will not be enforced by a foreign court, the decisions are in hopeless conflict; but, looking to the reason of the rule, I think that the English Privy Council and the Supreme Court of the United States are right in holding that it should extend no further than to the criminal law, that is, to public wrongs as distinguished from private rights. Huntington v. Attrill, 8 Times Law Rep. 341; Huntington v.Attrill, 146 U.S. 657, 13 Sup. Ct. Rep. 224. The rule appears to me to be properly stated as follows: "The test is not by what name the statute is called by the legislature or the courts of the State in which it was passed, but whether it appears to the tribunal which is called upon to enforce it to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person."Huntington v. Attrill, 146 U.S. 657, 683, 13 Sup. Ct. Rep. 224. "In its ordinary acceptation, the word `penal' might embrace penalties for infractions of general *Page 468 law, which did not constitute offences against the State; it might, for many legal purposes, be applied with perfect propriety to penalties created by contract; and it, therefore, when taken by itself, failed to mark that distinction between civil rights and criminal wrongs, which was the very essence of the international rule." Huntington v. Attrill, 146 U.S. 657, 681,13 Sup. Ct. Rep. 224, citing Lord Watson's opinion in the English case.
There are good reasons why the courts of one State cannot redress the public wrongs of another; and one of them is found in the obvious futility of one sovereign attempting to punish an offense which another sovereign has the right to pardon at will, either before or after sentence. But there seems to be no logical reason for refusing to enforce a foreign-created private right of action, which is transitory in its nature, simply because the defendant's conduct is, by the foreign law, independently punishable as a public wrong, or because the civil remedy in damages afforded by the foreign statute is more or less punitive in intention or effect, on account of the aggravated character of the wrong. As this court said, in Plumb v. Griffin, 74 Conn. 132,134, 50 A. 1: "Penal statutes, strictly and properly, are those imposing punishment for an offense against the State; and the expression `penal statutes,' does not ordinarily include statutes which give a private action against a wrong-doer." We have many such statutes; for example, General Statutes, § 1101, gives treble damages for theft; § 1102, double damages for forgery; § 1103, treble damages for removal of bridge; § 1104, treble damages for injury to mile-stone; § 1105, treble damages for vexatious suit; § 1097, treble damages for wrongfully cutting down large, and one dollar each for small, trees, but only actual damages if the trespass was through mistake; and chapter 216 of the Public Acts *Page 469 of 1905 as amended by chapter 268 of the Public Acts of 1909 authorizes the court to double or treble the actual damages, according to the circumstances of the case, in suits for injuries caused by neglect to conform to the law of the road.
In all these cases the excess over actual damages is assessed because of the defendant's criminal, malicious, or reckless conduct; and, in the case of the last two statutes referred to, the amount of the damages is assessed with reference to the degree of the defendant's culpability.
Yet none of these statutes are held to be penal. InPlumb v. Griffin, 74 Conn. 132, 50 A. 1, § 1097 (then § 1345 of the Rev. of 1888) was held not to be a "penal statute" within the meaning of our statutes of limitation; and in the course of that opinion it was said (p. 135): "In the same chapter of the statutes in which is this section — 1345 — there is another which provides that `every person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble its value.' This has never been regarded as a penal statute. . . . Another section — § 1350 [Rev. 1902, § 1102] — provides that every person who shall make and utter any forged or counterfeit document shall pay to the party injured double damages. This statute has been held by this court in Ross v.Bruce, 1 Day, 100, not to be a penal statute so that an action upon it would be barred by the lapse of one year." And in Lamphear v. Buckingham, 33 Conn. 237,246, we held that our statute of 1866, providing for a minimum recovery of $1,000 in case the life of any passenger, in the exercise of due care, should be lost by the negligence of a railroad company, was not a penal statute, saying: "Moreover we think the defendants mistake in assuming the statute to be a penal one. It does not provide a penalty for the breach of a positive *Page 470 law or for a public wrong. It recognizes the fact that it is or may be a serious injury to the family and heirs of a person to have him or her removed by a sudden and premature death, and the peculiar danger of such removal from a negligent management of railroads, and provides for compensation to the family or heirs in case of such death, and lacks some of the essential characteristics of a penal statute."
Our own definition of a "penal statute," in the strict and proper sense of that phrase, is therefore in accord with Huntington v. Attrill, 146 U.S. 657, 13 Sup. Ct. Rep. 224, and I do not understand that the opinion of the court expresses any different view. It reaches the conclusion that the Massachusetts courts have characterized the statute as a penal statute, and then appears to hold that we are bound by that characterization. I agree that we must ordinarily accept the construction which the courts of another State have put upon its statutes. But the question here is not simply what the language of the statute means, but whether it is so far penal that our courts cannot properly enforce it; and it seems clear that upon a question of the extent of our own jurisdiction, we ought not to surrender our own conceptions of what is a penal statute, and be controlled by the opinion of a foreign court. "The court appealed to must determine for itself, in the first place, the substance of the right sought to be enforced, and, in the second place, whether its enforcement would, either directly or indirectly, involve the execution of the penal law of another State. Were any other principle to guide its decision, a court might find itself in the position of giving effect in one case, and denying effect in another, to suits of the same character, in consequence of the causes of action having arisen in different countries; or in the predicament of being constrained to give effect to laws which were, in its own judgment, *Page 471 strictly penal." Huntington v. Attrill, 146 U.S. 657,682, 13 Sup. Ct. Rep. 224.
Moreover, the Massachusetts decisions hold, and the opinion of the court agrees, that the statute is in a sense a remedial one; and so it seems that the real objection is not that the statute is strictly and properly a penal statute, under the decisions in either jurisdiction, but that its enforcement would contravene the settled public policy of the State of Connecticut, either because it imposes a minimum recovery of $500, or because the excess damages, if any, are to be assessed with reference to the degree of the defendant's culpability. I do not think the objection is sound in either branch of it.
We do assess damages in some statutory cases with reference to the degree of the defendant's culpability, as already pointed out; and in actions of tort generally, we do assess smart money in addition to actual loss or legal damages, with reference to the degree of the defendant's culpability, not exceeding, however, the probable estimated cost of the trial. "In actions of tort, founded on the misconduct or culpable negligence of the defendant, it is usual and entirely proper for the judge to say to the jury that they are not necessarily confined in assessing damages to the actual loss of property to the plaintiff, but may allow smart money, measured by the circumstances of aggravation, and may, from their general knowledge of the course of the courts, if the case warrants it in their judgment, take into account the expenses of the trial beyond the taxable costs."Mason v. Hawes, 52 Conn. 12, 14.
Damages assessed because of and with reference to the degree of the defendant's culpability may be, and generally are, compensatory in their nature, although they embrace injuries or expenses not included in strict legal damages, and although (as in the case of statutes *Page 472 imposing a minimum recovery for death resulting from negligence) they include damages only presumptively suffered. Clearly, it is not against any general policy of this State to permit the recovery of such damages within the limitations of our own rule on the subject.
Turning to the specific case of death caused by negligence, it is by no means certain that an administrator may not, in some cases, be entitled, within the limitations of our rule, to recover damages assessed with reference to the degree of the defendant's culpability. The damages in such cases are "on the same grounds, and measured by the same rule, as if the action had been brought by her intestate in his lifetime." Wilmot v. McPadden, 79 Conn. 367, 378, 65 A. 157. Take the case of Kling v. Torello, 87 Conn. 301, 87 A. 987, where the plaintiff, being mortally injured by an atrocious assault, brought suit in his lifetime, and after his death an administrator entered to prosecute. Or suppose one, mortally injured through the defendant's reckless disregard of the law of the road, should sue in his lifetime, under chapter 216 of the Public Acts of 1905 (p. 412), and the administrator, after his death, enter to prosecute. At least, the law is not so clear as to justify the declaration of a public policy forbidding such recoveries. Assuming that the damages, in excess of the minimum provided for by the statute, are strictly exemplary because assessed with reference to the degree of the defendant's negligence, I am unable to agree that there is any public policy of this State which should prevent the plaintiff from recovering such damages in this action within the limitation of our rule. As to the minimum recovery of $500 imposed by the statute, we have had, in the past, statutes imposing a minimum recovery for death caused by negligence, although we have none today. Such recoveries are regarded as roughly compensatory, though in any given case they *Page 473 may not be so. Lamphear v. Buckingham, 33 Conn. 237. So the Massachusetts court has said of the statute in question that a leading objection is "to secure some pecuniary provision for those who may be dependent upon the deceased." Commonwealth v. Boston A. R.Co., 121 Mass. 36, 37. I think these two decisions settle the point that the minimum recovery of $500 imposed by this statute is not penal, and is compensatory, and that the recovery of the minimum sum of $500 in this case, together with such additional damages, if any, as the jury might assess with reference to the degree of the defendant's culpability, not exceeding the probable cost of the litigation, would not violate any public policy or legal tradition of the State of Connecticut.
Upon the general question whether we will enforce rights arising under foreign statutes of this kind, I think we are controlled in principle by the decision inHuntington v. Attrill, 146 U.S. 657, 683, 13 Sup. Ct. Rep. 224, which decides that after the original liability under such a statute has passed into judgment in one State, the courts of another State are bound by the Constitution and laws of the United States to give full faith and credit to that judgment (so far as any objection founded on the penal nature of the action is concerned), unless the judgment is in its essential character and effect a punishment of an offense against the public as distinguished from a judgment founded on a private civil right. In accordance with that decision, we should be bound to give effect to a Massachusetts judgment founded on this statute; and as it is clear upon principle and authority that "the essential nature and real foundation" of the action is the same, whether reduced to judgment or not (Wisconsin v. Pelican Ins. Co.,127 U.S. 265, 8 Sup. Ct. Rep. 1370), I think that, being bound to accept the principle in part, we ought to accept it as far as it is applicable. *Page 474