Rodwell v. Camel City Coach Co.

Ueogden, J. The demurrers present for decision two questions of law: 1. Does the complaint disclose a joint suit by the surviving husband and children of the deceased? 2. Is the wrongful death statute of Georgia repugnant to the public policy of this State, to such a degree as to deprive the trial courts of this State of jurisdiction to hear and determine a cause for' the negligent killing in the State of Georgia of a resident of this State? The first demurrer was properly overruled. Complaints assailed only by demurrer are to be construed liberally in favor of maintaining the cause of action. The entire complaint in the present case, when so *295 construed, is sufficient. Tbe husband and tbe children join in the action as plaintiffs and assert that they “are entitled to maintain this motion for recovery of all damages as provided by the laws of the State of Georgia.” There is a joint prayer for the recovery of damages. Moreover, by reason of the fact that the husband has joined in the suit as a party plaintiff, the law will not permit him to make an inconsistent claim or take a conflicting position in any subsequent action or judicial proceeding to the prejudice of the adverse party, where the parties are the same and the same questions are involved. Ellis v. Ellis, 193 N. C., 216, 136 S. E., 350. The second proposition of law involves the solution of the question as to whether the wrongful death statute of Georgia is so dissimilar in scope, meaning, and practical application as to contravene the public, policy of this State. North Carolina has a wrongful death statute, C. S., 160, which requires that a suit must be brought by an executor, administrator, or collector of the decedent, and any recovery shall not be deemed or applied as assets but shall be distributed in accordance with the statute of distributions. The wrongful death statute of Georgia provides that a widow, child or children; or husband, child or children “shall sue jointly and not separately, with the right to recover the full value of the life of deceased, as shown by the evidence.” Thus, the dissimilarity consists in two major differences: first, the persons entitled to maintain the suit, and second, the measure of damages. This Court in Hancock v. Telegraph Co., 137 N. C., 497, 49 S. E., 952, spoke as follows: “The validity and interpretation of the contract, as well as the rule measuring the damages arising upon a breach and the company’s liability therefor, are to be determined by the laws of the former state where the contract originated.” Also, in Howard v. Howard, 200 N. C., 574, 158 S. E., 101, it was written: “The actionable quality of the defendant’s conduct in inflicting injury upon the plaintiff must be determined by the law of the place where the injury was done; that is, the measure of the defendant’s duty and his liability for negligence must be determined by the law of New Jersey.” See Harrison v. R. R., 168 N. C., 382, 84 S. E., 519. American courts generally have not thought that a mere difference as to the person entitled to maintain a given cause of action or a mere difference in the measure of damages is sufficient or adequate dissimilarity to work a denial of the usual principles of comity prevailing among the states of the Union. For instance, in the Howard case, supra, Adams, J., wrote: “But the fact that the law of two states may differ does not necessarily imply that the law of one state violates the public policy of the other. Tt by no means follows that because the statute of one state differs from the law of another state, therefore it would be held contrary to the policy of the laws of the latter state. To justify a court in refusing to enforce a *296 right of action wbicli accrued under the law of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens.’ ” The same idea prevails in other jurisdictions. Thus, in Brown v. Perry, 77 A. L. R., 1294, the Yermont Court spoke as follows: “The courts of one state will not enforce a penal statute of another. . . . Comity never requires a court to give effect to the law of another state which conflicts with that of its own. . . . The tendency of modern decisions is toward a broader comity in the enforcement of rights created by the legislatures of sister states. The general rule is that when an action is transitory, and the right has become fixed and liability has been incurred in the state where the transaction occurred, such right of action may be pursued and such liability enforced in any court which has jurisdiction of such matters and can secure jurisdiction of the parties, provided that the statute under which the cause of action arose is not inconsistent with the public policy of the state in which the cause of action is sought to be enforced. The court should not, in otherwise proper cases, refuse to apply the law of a foreign state, however unlike its own, unless it be contrary to pure morals or abstract justice, or unless the enforcement would be of evil example and harmful to' its own people.” The conclusion is warranted that a difference in the elements or ’ amount of damages does not offend public policy to the extent that an action based upon a wrongful death statute of one state will for such reason alone be denied enforcement in the courts of another. See, also, Loranger v. Nadeau, 84 A. L. R., p. 1264, and annotation; Higgins v. Central Northeastern R. R. Co., 29 N. E., 534. It is a general principle, sanctioned by the decisions of many courts, that a penal statute of one state will not be enforced in the courts of another, and the defendant asserts that the wrongful death statute of Georgia permits the recovery of punitive or exemplary damages, and, therefore, that such statute is penal, and hence unenforceable in 'the courts of North Carolina. The views of the divergent schools of thought upon the subject are clearly and logically expressed by the Maryland Court in London Guaranty & Accident Co. v. Balgowan S. S. Co., 155 Atlantic, 334, and in the dissenting opinion of McNeill, J., in Gardner v. Rumsey, 196 Pac., 941, as follows: “The rule that a penal statute will not'be enforced outside the territorial jurisdiction of the Legislature enacting it applies only to such statutes as are entirely penal, their sole purpose being to inflict punishment for the violation of a law, for the public benefit, and not to those which are in part compensatory, the violator being required to make good to an individual a possible loss having *297 some connection with, his default.” To like effect the Supreme Court of Vermont in Wellman v. Mead, 107 Atlantic, 396, wrote: “The question of whether a statute of one state which in some aspects may be penal is a penal law in the international sense, so that it cannot be enforced in the courts of another state, depends on whether its purpose is to punish an offense against the public justice of the state, or whether it affords a private remedy to a person injured by the wrongful act.” 21 E. C. L., p. 225, states the rule as follows: “The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual. And a distinction has been made between statutes which are entirely penal, their sole purpose being to punish a violation of the law for the public benefit, and those which are in part compensatory, the violator being required to make good to an individual a possible loss having some connection with his default. It is universally held that statutes of the former character can be executed only by the sovereignty enacting them. But by the weight of later authority, and by the better reason, actions may be maintained anywhere to enforce the liability to an individual, created by statutes of the latter kind.” In the case at bar the plaintiff was apparently a resident of North Carolina, and, therefore, had a right to go into the courts of her own state, seeking redress for the wrong and injury inflicted in the State of Georgia. Conceding that the wrongful death statute of Georgia permits the recovery of punitive damages, nevertheless such damages are also compensatory, and this Court is not disposed to hold that the personal representative of a citizen of this State cannot enforce the wrongful death statute of another state where the injury occurred, because in the final analysis, a more liberal measure of damages is available under the statute of the state where the injury occurred. Sec L. & N. R. R. Co. v. McCaskell, 53 Southern, 348. Affirmed.