Powell v. Great Northern Railway Co.

START, O. J. Albert D. Powell, a brakeman employed by the defendant, a Minnesota corporation, was killed in the state of North Dakota, while acting as such, by the admitted negligence of other employees of the defendant, for which it is liable under the fellow servant statute of that state. This action was brought in the district court of the county of Ramsey, in this state, by the widow of the deceased, to recover damages for such negligence by virtue of a statute of North Dakota hereinafter referred to. She obtained a verdict for $11,000, and defendant appealed from an order denying its motion for a new trial. The statute of North Dakota (see Revised Codes) is in these words: “Sec. 5974. Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party in7 jured to maintain an action and recover damages in respect thereof, then and in every such case, the person who, or the corporation or company which, would have been liable if death had not ensued, shall be liable in an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. “Sec. 5975. In such actions the jury shall give such damages as they think proportionate to the injury resulting from the death to the persons entitled to the recovery. “Sec. 5976. The action shall be brought by the following persons in the order named: First. The surviving husband or wife. Second. The surviving children, if any. Third. The personal representative. “Sec. 5977. The amount recovered shall not be liable for the debts of the decedent, but shall inure to the exclusive benefit of his heirs at law, in such shares as the judge before whom the case is tried shall fix in the order for judgment, and for the purpose of determining such shares the judge may after the trial make any investigation which he deems necessary.” [453] It is conceded that upon the death of plaintiff’s husband a cause of action at once accrued to her in North Dakota by virtue of this statute, but it is contended that the statute is so dissimilar to our own on the same subject that her right of action ought not to be enforced in our courts. This is substantially the only question raised by the record. A right of action accruing to a party under a statute of another state will, as a matter of comity, be enforced in the courts of this state, when jurisdiction can be had and justice done between the parties, if such statute be not contrary to the public policy of this state; that is, against good morals, or natural justice or the interest of this state or its citizens. Herrick v. Minneapolis & St. L. Ry. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. 771; Midland Co. v. Broat, 50 Minn. 562, 52 N. W. 972, 17 L. R. A. 312; Nicholas v. Burlington, C. R. & N. Ry. Co., 78 Minn. 43, 80 N. W. 776; Negaubauer v. Great Northern Ry. Co., 92 Minn. 184, 99 N. W. 620, 104 Am. St. 674; Stewart v. Baltimore & Ohio R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 43 L. Ed. 537; Rick v. Saginaw, 133 Mich. 337, 93 N. W. 633, 103 Am. St. 433. The statute of another state is not contrary to the public policy of this state simply because it is materially unlike our own, nor is it so even if we have no statute on the same subject that it covers. In the Herrick case a right of action, given by a statute of the state of Iowa to an employee of a railway company against it for the recovery of damages for injuries sustained by him by reason of the negligence of a fellow servant, was enforced in the courts of this state, although at the time the law of this state was the common law, which denied a servant any relief from his master for the negligence of his fellow servant. Nor is it any reason for refusing to enforce a right of action given by the statute of another state that it is given to a different person or party than it is by our own statute. This was expressly held in the Nicholas case. The claims of the defendant must be tested by the rules we have stated. Its first claim is, in effect, that the provision of the statute of North Dakota, which declares that the damages recovered shall inure to the exclusive benefit of the heirs at law of the deceased in such shares as the trial judge shall fix in the order for judgment, is so dissimilar to the provisions of our own statutes that the courts Of this state can [454] not give it effect, and therefore they will. not entertáin the áction. This cause of action accrued upon the death of the deceased in North Dakota, and the right of the plaintiff to enforce it was then absolute. The determination of the respective shares of the'heirs by the trial judge is a mere incident to the entry of judgment after the liability of the defendant and the amount thereof have been determined by the verdict. Such determination after the trial in no manner affects or interests the defendant. The court can do full justice between the parties to the action, whether or not it fixes in the judgment the amount which shall inure to the benefit of each heir. In any event, the judgment must be entered in favor of the plaintiff and against the defendant for the amount of the verdict. When the defendant pays to the plaintiff the amount of the judgment its liability is absolutely extinguished, and it has no more concern as to the preservation or distribution of the fund than the defendant, in an action under our statute to recover by a father for injuries to his minor child, has in the determination by the court of the question whether the plaintiff shall give security before the amount of the judgment is paid to him. Lathrop v. Schutte, 61 Minn. 196, 63 N. W. 493. It is quite obvious that the provisions of the statute of North Dakota as to the determination of the respective shares of the heirs in the amount recovered is a mere incident to the entry of judgment, with which the courts of this state will comply, and that it is not contrary to good morals, or natural justice, or the interest of the state or its citizens. The defendant further claims that it is against the public policy of this state to allow the recovery of more than $5,000 damages, the limit in our statute, for the death of a person by the wrongful act or neglect of another. This question is settled adversely to the defendant by the Herrick case, for in that case nothing whatever could have been recovered under the laws of this state, and yet the statute of Iowa, giving what our laws 'then wholly denied, was enforced. The greater includes the less. In the Negaubauer case the time limit for bringing the action in the statute of Montana, although greater than that in our own statute, was given effect. We hold that the fact that the amount of the- recovery in actions of this kind is limited by our statute, but not by the statute of North Dakota, affords no reason why the courts [455] •of this state should not enforce in its entirety the right of action given by the statute of North Dakota. The last contention of the defendant’s counsel is that the trial court erred in refusing to permit him to discuss our own statute as to damages. The ruling was manifestly right, for the statute of the forum had nothing to do with the damages. Order affirmed.