London Guarantee & Accident Co. v. Balgowan Steamship Co.

Offutt, J., delivered the opinion of the Court. This is an appeal from a judgment for the defendant on demurrer of the Superior Court of Baltimore City in an attachment proceeding on original process for unliquidated damages against a nonresident, instituted by the London Guarantee & Accident Company, Limited, for the joint use and benefit of itself and the widow and certain surviving children of Davis Hawkins, deceased, against the Balgowan Steamship Company, Ltd., William Arbuckle and Neil MacKinnon, individually and jointly. The cause of action is found in certain statutes of the State of Texas, set out in full in the declaration, and more particularly referred to later, and in the following facts, which for the purposes of the appeal are conceded: On or about November 13th, 1928, Davis Hawkins was employed by the Gulf Stevedoring Company of Texas upon a pier at Galveston, Texas, in loading bales of cotton on the steamship Balgowan, which was owned by the appellees. In the course of his work, as the result of defendant’s negligence, a rope by means of which the cotton was hoisted from the pier to the ship parted, and several bales fell upon Hawkins, inflicting injuries which caused his death.

The precise negligence of which the appellants complain is that the rope by which the bales were suspended was dangerously defective, ¹⁴⁷ and that it parted because that condition could by the exercise of ordinary care on their part have been discovered by the appellees, who supplied it for the use to which it was applied, in time to have prevented the accident, but which could not have been so discovered through the exercise of ordinary care by the injured employee. In due course, compensation under the Workmen’s Compensation Law of Texas in the sum of $5,500 was awarded to the widow and children of Hawkins, and paid by the London Guarantee & Accident Company, Limited, which had issued ,a policy of compensation insurance to the Gulf Stevedoring Company, covering its liability for such compensation. On August 15th, 1930, the insurance company filed its affidavit in the Superior Court for the attachment in this case, and on the same day filed in the proceeding its declaration properly verified. A demurrer to that declaration having been sustained, on Movember 12th, 1930, it filed its amended declaration.

A demurrer to that pleading was also sustained, “without leave to amend,” and judgment on demurrer entered for the defendants. The sole question presented by the appeal is whether that declaration states a cause of action enforceable in the courts of this state. While there is authority to the contrary, the great weight of judicial opinion in American courts is that no action can be maintained anywhere for the death of a human being through the negligent or wrongful act of another, unless the right to maintain such an action is given by some statute of the state in which the injury was inflicted. 8 R. C. L. 719, 1037, 1038; 48 Am. Dec. 633 ; Austin’s Adm’r. v. Pittsburg, C., C. & St. L. R. Co., 122 Ky. 304 , 91 S. W. 742 ; Boston & M. R. R. v. Hurd (C. C. A.), 108 F. 116 , 56 L. R. A. 194.

And that certainly is the law of this state. Dronenburg v. Harris, 108 Md. 597 , 71 A. 81 ; Ash v. Balto. & O. R. Co., 72 Md. 145 , 19 A. 643 ; Stewart v. United Elec. L. & P. Co., 104 Md. 332 , 65 A. 49 . Where, however, such a right is given by the lex loci delicti, the weight of authority supports the principle that it may upon considerations of comity be en ¹⁴⁸ forced in any other state where the law as to the actionable qualities of the wrongful act is substantially the same as the law of the state in which the act was done (8 R. C. L. 792), and the opinion in Ash v. Balto. & O. R. Co., supra, may be construed as favoring that rule.

But, since a determination of that question is not necessary in this case, it will neither be considered nor decided. Eor, whatever the law as to that may be, the converse of the proposition has, after mature deliberation by able judges, been deliberately adopted as the settled law of this state; that is, that a negligent or wrongful act resulting in the death of a human being under circumstances which, by the statutory law of the state in which the act was done, conferred upon certain classes of persons a right of action against the tort-feasor, is not actionable in this state in respect to such death, unless like qualities and incidents would have been given to it, had the act occurred here, by some statute or statutes of this state substantially similar to the statute or statutes in force in the state in which the act was done and which made it a cause of action. Ash v. Balto. & O. R. Co., supra; Dronenburg v. Harris, supra. It is however intimated, in the very careful and helpful brief of the appellants, that, if read literally, the opinion in Ash v. Balto. & O. R. Co., supra, is inconsistent with the present trend of the law, and that therefore it should be read as sanctioning the exercise by the courts of this state of a greater liberality in assuming jurisdiction in actions for the enforcement of rights created by the statutory law of some other state than would be permitted by its strict letter.

We cannot accept that suggestion for several reasons. One is that the language of that opinion is too clear to permit a resort to construction, and to give it any meaning other than that which it clearly states would not be to construe it, but to modify or overrule it, and that we are unwilling to do. Second. The law as to the enforcement in one state of rights growing out of the death of a human being by the wrongful act 'of another in some other state, and which depend upon statutes of the state in which the act is done, is in such a state of conflict and confusion that it cannot be ¹⁴⁹ said with certainty what its trend is, or that the weight of authority supports a rule different from that stated in Ash v. Baltimore & O. R. Co., supra, 8 R. C. L. “Death,” secs. 73-77.

For while the general weight of authority does support the proposition that rights accruing under foreign statutes may on principles of comity be enforced in a state other than that in which the act was done, the decisions as to the conditions and circumstances under which such rights will be enforced in the state of the forum are conflicting*. Id. Whether that comity shall be extended has been held to depend upon whether the lex loci delicti upon which the right depends is substantially similar to the laws of the forum (Howard v. Nashville, etc. R. Co., 133 Tenn. 19 , 179 S. W. 380 ; 8 R. C. L., p. 796, note 15), whether there is a statute in the state of the forum permitting an action for a wrongful act causing death {Id.), whether the statutes in the two> jurisdictions are substantially alike or of a similar “import and character,” founded on the “same general principle and possessing' the same general attributes,” 8 R. C. L. 796. On the other hand, it has been widely held that a right of action acquired under the laws of one state may be enforced in any other state, even though acts similar to those upon which the right is based would not by the lex fori be actionable.

Den nick v. Central R. Co., 103 U. S. 11 , 26 L. Ed. 439 ; Stewart v. Balto. & O. R. Co., 168 U. S. 445 , 18 S. Ct. 105 , 42 L. Ed. 537 ; Bigelow v. Nickerson (C. C. A.), 70 F. 113 ; O’Reilly v. New York & N. E. R. Co., 16 R. I. 388, 17 A. 171, 906 , 19 A. 244 ; Eingartner v. Illinois Steel Co., 94 Wis. 70 , 68 N. W. 664 . In some cases it has been held that a mere dissimilarity in the measure of damages recoverable may be disregarded in comparing the statutes as immaterial (Wooden v. Western N. Y. & P. R. Co., 126 N. Y. 10 , 26 N. E. 1050 ; Whitlow v. Nashville, C. & St. L. R. Co., 114 Tenn. 344 , 84 S. W. 618 ), as where the lex loci delicti allows exemplary damages and the plaintiff seeks compensatory damages only under the lex fori, which does not permit exemplary damages. Rochester v. Wells Fargo & Co. Express, 87 Kan. 164 , 123 P. 729 . ¹⁵⁰ In others snch a dissimilarity has been fatal (Hyde v. St. Louis & P. R. Co., 61 Iowa, 441 , 16 N. W. 351 ), and in one state it was held that under its statutes the courts could not assume jurisdiction in an action by a nonresident against a foreign corporation on a cause of action which did not arise within the state. Robinson v. Oceanic Steam Nav.

Co., 112 N. Y. 315 , 19 N. E. 625 . Finally we are unable to' say that the rule, announced in the Ash v. Baltimore & O. R. Co. and Dronenburg v. Harris cases, that rights arising from acts done beyond this state, acquired by nonresidents under foreign statutes, will not be enforced in this state when its policy, as expressed in its statutes, fails to accord to its own citizens, by statutes substantially the same as the foreign statutes, sim4 ilar rights and privileges, is wrong in principle. Inherently, no' state statute has any extraterritorial force, and it is administered in a foreign state as a matter of grace, not of right, upon principles of comity. 12 G. J. 434, 11 G. J. 1255-1259. And there seems to be no sound reason why any state should lend the use of its judicial machinery for the enforcement of rights created by foreign statutes or laws in favor of nonresidents, unless by its own laws and statutes, similar in substance to the foreign laws and statutes, like rights are granted to its own citizens.

Finding no sufficient reason to depart from the principles stated in Ash. v. Balto. & O. R. Co., supra, and affirmed in Dronenburg v. Harris, supra, the ultimate and controlling-question in the case is whether the Texas statutes, upon which appellants’ claim is based, are substantially the same as the Maryland statutes applicable to similar facts. Comparison of the relevant statutes of the two states demonstrates that in important particulars the Maryland statutes differ from the Texas statutes, and, applying the rule stated in Ash v. Balto. & O. R. Co., supra, the conclusion is manifest that those differences are of such a character that the Texas statutes will not be administered in the courts of this state. In that ease the plaintiff, as administratrix of Cecil E. Weaver, deceased, brought an action in the Circuit Court for Cecil County to recover damages ¹⁵¹ for the death of her decedent as a result of the alleged wrongful act of the defendant clone at the State of West Virginia. A statute of that state provided that damages might be recovered in such a case in an action brought by the personal representative of the deceased person, and that any damages recovered should be apportioned to the parties in the proportion provided by law for the distribution of the estates of deceased persons dying intestate; that the damages recoverable should not exceed $10,000, and should not be subject to any debts or liabilities of the deceased; and that every such action should be brought within two years after the death of the deceased person.

The Maryland statute, then as now, provided that, whenever “the death of a person shall be caused by wrongful act * * * and the act * * * is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages. * * *” (Code, art. 67, sec. 1); that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought in the name of the State of Maryland for the use of the person or persons entitled to damages, and in every such case the jury may award such damages as they may think proportioned to the injury resulting from such death to the parties for whose benefit the action shall be brought, and such damages, after deducting costs not recovered from the defendant, shall be divided among the parties in such shares as the jury may direct, and every such action shall be brought within twelve calendar months after the death of the deceased person. Id., sec. 2. The language of the section last cited has been held to mean that in such an action only compensatory damages, proportioned to the pecuniary loss suffered by the equitable plaintiff, may be recovered. Tucker v. State, use of Johnson, 89 Md. 471 , 43 A. 778 , 44 A. 1004 ; Balto. etc. Turnpike Road v. State, use of Grimes, 71 Md. 582 , 18 A. 884 ; Agricultural Assn. v. State, use of Carty, 71 Md. 100 , 18 A. 37 ; Balto. & ¹⁵² O. R. Co. v. State, use of Mahone, 63 Md. 135 ; State, use of Coughlan v. Balto. & O. R. Co., 24 Md. 105 ; Balto. & O. R. Co. v. State, use of Kelly, 24 Md. 281 .

The court found these statutes “essentially dissimilar,” and, in passing upon the effect of the dissimilarity, said: “We are aware that there is some diversity of opinion upon this subject; but we are not aware that there is any well-considered case that holds that the action may be maintained, in a state other than that in which the accident occurred, on the same state of facts as here presented, and where there existed in the statutes of the two states upon this subject such dissimilarity of provisions as we find to exist in the statutes of West Virginia and Maryland.” Ash v. Balto. & O. R. Co., supra, 72 Md. 150 , 19 A. 643, 645 . In this case plaintiff’s claim is based not only upon the death statute of Texas (title 77, Rev. C'iv. Stat. of Texas), but also- upon the workmen’s compensation law of that state (title 130, Rev. Civ. Stat. of Texas), and its limitations statute (title 91, Rev. Civ.

Stat. of Texas), so that it becomes necessary not only to compare title