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Gray v. Gray, 87 N.H. 82 (1934)
Gray v. Gray, 87 N.H. 82 (1934)
Carroll,
Sept. 4, 1934.
law, unless the lex loci has made the act complained of innocent. This
seems to be a splitting of the rule of accountability. The foreign
law is noted and applied, in so far as treating the act as innocent is
concerned; but if that obstacle is passed, the English law is then used,
or may be, to supplement the foreign and give a cause of action. This
theory never attained any recognition in this country. “No case in
this country has been found where recovery in tort has been allowed
for what was not the basis of an action by the lex loci delicti.”
Goodrich, Conflict of Laws, 190.
III. Much objection has been made, both by some recent writers
and in argument here, against any theory of vested right or obligaiio.
If such theory were based upon the idea that a sovereignty is under
legal compulsion to recognize the foreign cause of action, there might
be force in the argument. While the proposition may sometimes have
been stated in that extreme form, the common theory is that such
recognition has resulted from the idea that it was the just and politic
course to follow. It has been developed under the impulses of neigh-
borliness and orderliness. It has become an accepted rule precisely
as liability for negligence, once unknown, became a part of the com-
mon law.
Wrong theories for the rule may have been advanced. But the
destruction of such men of straw does not affect the validity of the
line of procedure they were supposed to defend. It stands upon its
own intrinsic merits. No one denies that the parties may have vested
rights, or obligations, in the jurisdiction where the transaction oc-
curred. But because another sovereignty adopts the rule that it will
enforce the right or deny recovery as the event would be according
to the lex loci, it by no means follows that it is the law of the forum
that such course is obligatory upon such sovereignty.
reaching the conclusions stated in Beacham v. Portsmouth
Bridge, 68 N. H. 382, it was not deemed essential to enter into a dis-
cussion of the territoriality of law, of the concept of it spatially, or of
the claims of parties as vested rights, accrued in a foreign jurisdiction.
The situation was a practical one. The problem was “one of judicial
expediency” (Saloshin v. Houle, 85 N. H. 126, 130). Forty odd
separate jurisdictions had given rise to pressing questions as to how
rights and wrongs originating in one should be dealt with in another.
A few simple ideas were sufficient to indicate the course to be taken.
Local conduct should be governed by local law. Rules of conduct
have no force to regulate acts done outside the jurisdiction which
made the rules, save as their operation is enforced by control over
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the whole theory of applying the lex lociis unsound and should there-
fore be abandoned, and actions for foreign torts should be decided
according to local law.
One answer to this is that the rule that the lex loci shall apply is so
firmly established that it should be followed, unless very grave de-
fects therein call for reform. We see no such defects. Whether it
should include renvoi or not is a matter to be decided when a case
arises which presents that question. In the instant case there is no
occasion to go further than to inquire whether the obstacle proposed
is insuperable. If it does not appear to be so, we need not be appre-
hensive that adherence to the present line of procedure will unduly
embarrass the court of the future when called upon to decide the
propounded problem.
It is undoubtedly true that following the doctrine of renvoi to a
logical extreme can, in some situations, result in an endless reference
back and forth. The dilemma thus presented is something of an
answer to the theorists who justify the application of the lex loci upon
the idea of a vested right. The writers relied upon by the plaintiff
have used it largely for this limited purpose. They recognize the
desirability of a general application of the lex loci in actions for torts.
Their quarrel has been with the theory of those who would account
for such procedure upon the basis of a vested right or óbligatio.
Once the doctrine of óbligatiois disregarded, and recognition of the
lex loci is put upon its true foundation, there is no difficulty. The
lex loci is applied because this is deemed to be the sensible course to
pursue. When a point is reached where further application is futile
and ridiculous the process is cut short.
No rule or set of rules has yet been devised which will make the
conflict of laws a logical whole. There are places where logic has to
give way to evident facts. In these places horse sense has prevailed
over the deductions of the schoolmen. It should continue to do so.
Whether, upon the issue of applying foreign law we should follow
our own views entirely, or adopt those expressed in the lex loci which
are pertinent, is, like most of the questions involved in this case, a
matter of what is sound policy. That problem will no doubt be
solved in the future, and some definite rules will be evolved, as there
have been already on the main issue of following the lex loci.
As before stated, there is no occasion here to determine whether
we should apply a Maine doctrine of renvoi, since there is no evidence
that such a doctrine exists.
VI. The novel complaint is made that the foregoing conclusions
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upon the application of the lex loci set up fixed rules. The proposal
is that instead thereof the whole matter be left to the discretion of
the court to apply either the foreign or the domestic law to the in-
¡dividual case as “reason, justice and expediency” require. That
might well be taken as the guide for determining what should be done
in the first stages of the development of the law. But as the law
progresses definite rules are evolved in the course of the frequent
application of those tests. That is the situation here. It has be-
come settled that reason, justice and expediency require that causes
of action for foreign torts be dealt with as hereinbefore indicated.
Exception overruled.
All concurred.
Hillsborough,
Sept. 4, 1934.