Schell v. Iron Sheet & Tube Co.

or if, under our forms of procedure, an action here cannot give a substantial remedy, we are at liberty to decline jurisdiction. Blanchard v. Russell, 13 Mass. 1, 6; Prentiss v. Savage, 13 Mass. 20, 24; Ingraham v. Geyer, 13 Mass. 146; Tappan v. Poor, 15 Mass. 419; Zipcey v. Thompson, 67 Mass. (1 Gray) 243, 245; Erickson v. Nesmith, 81 Mass. (15 Gray) 221, and 86 Mass. (4 Allen) 233, 236; Halsey v. McLean, 94 Mass. (12 Allen) 438, 443; New Haven Horse Nail Co. v. Spring Co. 142 Mass. 349, 353 [7 N. E. Rep. 773]; Bank of North America v. Rindge, 154 Mass. 203 [27 N. E. Rep. 1015]."

In Wooden v. Railway Co. 126 N. Y. 10, 14 [26 N. E. Rep. 1050; 13 L. R. A. 458; 22 Am. St. Rep. 803], Finch, J., says:

"Certain propositions essential to the inquiry before us have been explicitly determined in McDonald v. Mallory, 77 N. Y. 546, and need no other citation for their support. That case held that the liability of a person for his acts, whether wrongful or negligent, depends in general upon the law of the place in which the acts were committed; that actions' for injuries to the person in another state are sustained here without proof of the lex loci, because they are permitted by the common law which is presumed to exist in the foreign state; that such presumption does not arise where the right of action depends upon a statute which confers it; and that in such case the action can only be maintained here by proof that the statutes of the state in which the injury occurred give the right of action, and are similar to our own. Upon the question of similarity we have also held that the two statutes need not be identical in their terms, or precisely alike, but it is enough if they are of similar import and character, founded upon the same principle, and possessing the same general attributes. Leonard v. Navigation Co. 84 N. Y. 48, 53. It is quite evident that the two statues are of similar import. They are founded upon the same principle, are aimed at the same evil, construct the same sort or kind of action, and give it for the same class of individuals. In both the utter failure of redress at common law where the injury ended in death was the injustice for which a remedy was enacted; and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This fundamental agreement in the main and substantial characteristics of the two statutes is not affected by the differences of detail which the demurrer points out."

In Dennick v. Railway Co. 103 U. S. 11, 17, 18 [26 L. Ed. 439] Mr. Justice Miller says:

"It is difficult to understand how the nature of the remedy or the

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jurisdiction of the courts to enforce it is in any manner dependent on the question whether it is a statutory right or a common-law right.

"Wherever, by either the common law or the statute law of a state, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties.

"The action in the present case is in the nature of trespass to the person, always held to be transitory, and the venue immaterial, and the local court in New York, and the circuit court of the United States for the northern district, were competent to try such a case when the parties were properly before it. See Mostyn v. Fabrigas, 1 Cowp. 161; Rafael v. Verelst, 2 Wm. Black. 983, 1055; McKenna v. Fisk, 42 U. S. (1 How.) 241. We do not see how the fact that it was a statutory right can vary the principle. If the defendant was legally liable in New Jersey he could not escape that liability by going to New York. If the liability to pay money was fixed by the law of the state where the transaction occurred, is it to be said it can be enforced nowhere else because it depended upon statute law and not upon common law? It would be a very dangerous doctrine to establish, and in all cases where the several states have substituted the statute for the common law, the liability can be enforced in no other state but that where the statute was enacted and the transaction occurred. The common law never prevailed in Louisiana, and the rights and remedies of her citizens depend upon her civil code. Can these rights be enforced or the wrongs of her citizens be redressed in no other state of the Union? The contrary has been held in many cases. See Van Riper, Ex parte, 20 Wend. (N. Y.) 614; Lowry v. Inman, 46 N. Y. 119; Pickering v. Fisk, 6 Vt. 102; Nashville & C. Ry. Co. v. Sprayberry, 67 Tenn. (8 Bax.) 341; Great Western Ry. Co. v. Miller, 19 Mich. 305." Stewart v. Railway Co. supra.

To the same effect are generally the decisions in both the federal and state courts of nearly all the states. Why then should it be said as it is by some of the text writers that Ohio is otherwise? We have no decision in this state justifying the claim and we think if the question had been presented to our Supreme Court its holding would have been the same as is generally held by the courts of other states.

We now come to the question as to whether or not the act of 1902, Sec. 6134a Rev. Stat., deprives our courts of jurisdiction in such actions, except in cases where the death of a citizen of our own state is caused by the negligence or wrongful act complained of. The claim is, that

Schell v. Iron Sheet & Tube Co.

original Sec. 6134a Rev. Stat., enacted in 1890, having given a right of action to all persons, whether citizens of the state or not, in our courts to enforce a claim under the statute of another state, and that section being repealed and a citizen of our own state being only specified in the amendment, that that presupposes that no such right previously existed and was only conferred by the statute of 1890, and that statute being amended and repealed that it was the intention of the general assembly to confine the right exclusively to persons who were citizens of Ohio when death ensued from such negligence in the foreign state.

The section as it originally was enacted is as follows: "Whenever death has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state in all cases where such other state, territory or foreign country allows the enforcement in its courts of the statute of this state of a like character; but in no case shall the damages exceed the amount authorized to be recovered for a wrongful neglect or default in this state, causing death. Every action brought under this act where the death has already occurred shall be commenced within one year from the passage of this act; and in all other cases, within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country." 91 O. L. 408.

It will be observed that this section as it originally stood restricted the right to bring an action to a very narrow compass apparent from its reading, and the construction placed upon it in Wabash Ry. Co. v. Fox, supra, makes the "fit exceedingly tight." On pages 144 and 145, Spear, J., says:

"Nor is there ground for saying that our statute, Sec. 6134a Rev. Stat., is satisfied by the mere entertaining by the courts of another state of a cause of action for death occurring in our state. Such is not the language of the law. It is not the entertaining of the suit that is stipulated for, but enforcement of our statute of like character. This means that it is the law of Ohio which the sister state will enforce; not necessarily the law of that state, for where there is an essential difference ast has already been pointed out; it cannot be said that by enforcing their own law the court of the other state is enforcing our statute. Our statute rests upon the ground of reciprocity which is based upon the idea of comity, and the very essence of reciprocity implies that each state, as to the subject-matter, shall have and enforce identical laws; not simply pro

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visions which may be in many respects similar, but in all essential particulars the same. It seems to us clear that the laws of Indiana, while they permit the bringing of actions in the courts of that state to recover for death occurring in another state, require the determination of the rights of the parties by the provisions of their own laws, but do not enforce the laws of the state where the injury was committed."

Nearly all the statutes in the different states differ from each other; none of them are identical. In some of them the amount to be recovered is unlimited; in others the amount is specified; in some instances a small amount; in others a large amount; some provide the action shall be by an administrator for the benefit of a specified class; others provide that the suit shall be by the next of kin directly; in some of the statutes the beneficiaries are quite limited being restricted to the immediate family; others extend to all the next of kin. In some states they provide how the negligent acts shall be proven, and what shall constitute negligence; in others it is left to the general rules of law upon the subject. If the statutes must be identical as was required under Sec. 6134a Rev. Stat. as it originally was, then it would be almost impossible to maintain an action in this state under the statute of a foreign state. The decision was rendered in the case of Wabash Ry. Co. v. Fox, supra, February 5, 1901, and at the next meeting of the general assembly on May 6, 1902, Sec. 6134a Rev. Stat. was amended, as we now have it, and the original section repealed, which left the subject-matter as it was previous to its enactment in 1890 subject only to the provision as it now exists.

The fact that so soon after this decision was made the section was amended would seem to be significant and we are fully persuaded that the intention of the general assembly was that the question should be left as it was before the statute was passed, all that was required being that the statutes of the different states should be substantially alike, and that if the foreign state substantially enforced our statute in accordance with the remedial provisions, that was all that was necessary, and in cases where the death of the citizen of our own state was caused by negligence or wrongful act, even that should not be required but the next of kin might maintain an action in our courts under the statute of the foreign state independent of the question whether such foreign state enforced our statute or not.

There are many reasons why we feel constrained to place this construction upon Sec. 6134a Rev. Stat. as amended. The section does not provide directly, but, if at all, only by implication that in no other case

Schell v. Iron Sheet & Tube Co.

but in that of the death of a citizen of our own state can such action be maintained, and it is a well-settled rule of law, that:

"In giving construction to a provision of a statute, or a contract, which attempts to abrogate, or modify, a well-established rule of the common law, the scope of the provision should not be extended beyond the plain import of the words used if reasonable effect can otherwise be given to it." Felix v. Griffiths, 56 Ohio St. 39 [45 N. E. Rep. 1092].

If this rule would apply to a provision of the common law, much more would it apply in case of this character where the right is so generally and specifically recognized in the different states.

Furthermore such a construction would make the section directly inimical to Sec. 2, Art. 4 of the U. S. constitution which provides that, "The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." Just what the words "privileges and immunities" signify it is difficult to tell under all circumstances, but their significance and import must be determined under the circumstances of each particular case; at the same time there are well-established rules which are recognized and given effect in all cases and among these, it is well settled, is the right to the usual remedies for the collection of debts and the enforcement of other personal rights in the courts of all the states. Cooley, Const. Lim. 490, and cases cited in

the notes.

True the state may make reasonable restrictions so that its own citizens and courts will not be abused or imposed upon. It may provide that process in attachment and garnishment may be issued against a citizen of a foreign state although not against a citizen of its own state, also that a citizen of a foreign state shall be required to give security for costs; these are reasonable provisions but it cannot close the doors of its courts absolutely to one class and give it to another, simply on the ground of citizenship of a different state. Such provision would be subversive of the entire theory of the union of the states. Cases cited in the notes in Cooley, Const. Lim. supra.

The construction contended for by defendant in error does not meet the question directly, but it is indeed more comprehensive and objectionable. If the death of a citizen of Pennsylvania is negligently caused, as in this case, in that state, his beneficiaries have no standing whatever in our courts, but if a citizen of Ohio is killed by the negligent act of another in that state, his beneficiaries may have complete redress in our courts without regard to their citizenship, whether they be citizens of a