Davis, K. Paul

English

The Research Repository @ WVU (West Virginia University)

Volume 69 | Issue 3 Article 11April 1967Conflict of Laws--Torts--Lex Loci Delicti Yieldingto Significant ContractsK. Paul DavisWest Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Conflict of Laws Commons, and the Torts CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationK. P. Davis, Conflict of Laws--Torts--Lex Loci Delicti Yielding to Significant Contracts, 69 W. Va. L. Rev. (1967).Available at: https://researchrepository.wvu.edu/wvlr/vol69/iss3/11WEST VIRGINIA LAW REVIEWrehabilitation and fitness to again be an active, productive memberof the profession. A preliminary fixed time attached to suspensionis unimportant. The important factor is that the suspension remainsin force until the attorney has borne the responsibility of regaininghis prior rational condition to the satisfaction of the court. Thedeterrent factor and protection for the public exist, because, aslong as the attorney shows no rehabilitation, it is as effective as adisbarment, as the suspension will never be lifted. But, in addition,the future status of the attorney is considered in allowing himthe opportunity to prove rehabilitation and repentance, with aresulting reward of reinstatement.Robert Brand StoneConflict of Laws-Torts-Lex Loci DelictiYielding to Significant ContactsW, who was a passenger in an automobile driven by H, broughtan action against H seeking damages for personal injuries sustainedfrom H's alleged negligent operation of the automobile. The triporiginated and was to have ended in New Hampshire, the domicileof the parties. The accident occurred in Vermont which has aguest statute. The action was instituted in New Hampshire, whichhas no guest statute, and W moved for a pre-trial order that thesubstantive law of New Hampshire govern the rights of the parties.All questions of law raised by the motion were reserved and trans-ferred without ruling. Held, Vermont's guest statute will not governthe rights of these parties simply because the injury occurred inVermont. The circumstances under which a guest passenger hasa right of action against the driver of an automobile for injuriessuffered as a result of the latter's negligence will be determinedby the local law of their common domicile, if, at least, this is thestate from which they departed on their trip and the state towhich they intended to return. Clark v. Clark, 222 A.2d 205 (N.H.1966).[Vol. 691Davis: Conflict of Laws--Torts--Lex Loci Delicti Yielding to SignificantPublished by The Research Repository @ WVU, 1967CASE COMMENTSThe court in the Clark case adopted the "significant contacts"doctrine,' often referred to as the center of gravity theory, withlimited comment on its merits or shortcomings and proceeded todiscuss what it considered to be the relevant considerations uponwhich choice of law decisions ought to be based. The court con-cluded that such decisions ought to be based directly on pre-dictability of result, maintenance of reasonable orderliness and goodrelationship between the states, simplification of judicial task, ad-vancement of state governmental interest and preference for sounderrule of law. The decision which resulted was simply an exampleof applying a fact situation to this "standard" laid out by the court.Although the decision does not give the New Hampshire practitionerthe measure of predictibility he had under the old "place of theinjury" rule, he does, however, have a workable standard forweighing his client's facts in predicting the choice of law which thecourt will make. This is a refinement of Babcock v. Jackson2which left the New York court with the necessity of determiningad hoc the jurisdiction having the paramount relation.3 Suchrefinement stands as an answer to the critics of the modem trendwho contend that only if the law of the place of the tort is appliedcan there be any practical method for determining the law govern-ing the particular case.'In holding that lex loci delicti is no longer a workable rule intort cases, the courts have almost uniformly pointed to the priordissolution of the rule in contract cases.' One writer argues that ifthe "significant contacts" doctrine is accepted for contracts, then1 The well established conflict of laws rule in tort actions is that thelaw of the state where the tort was committed governs the substantive rightsof the parties. There is a growing number of states which are abandoning thisrule in favor of a balancing of the "significant contacts" approach. SeeComment, 67 W. VA. L. REv. 304 (1965), for a general discussion on theinitial development of this trend. Also see Comment, 68 W. VA. L. REv. 407(1965), for a discussion of the influence this trend has had on interspousalimmunity. The scope of the present comment has been limited to comple-menting these two previous comments.2 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963). This wasthe first case to apply the "significant contacts" test, as such, to a tort situa-tion.a O'Rourke Analysis of the Contacts Test: A Numerical Evaluation ofBabcock v. Jackson, 11 PRAc. LAw. 87 (May 1965).4Sparks, Babcock v. Jackson- A Practicing Attorney's Reflections Uponthe Opinion And Its Implications, 31 INS. COUNSEL J. 428 (1964).sWatts v. Pioneer Corn Co., Inc., 342 F.2d 617 (7th Cir. 1965); Bab-cock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).1967]2West Virginia Law Review, Vol. 69, Iss. 3 [1967], Art. 11https://researchrepository.wvu.edu/wvlr/vol69/iss3/11WEST VIRGINIA LAW REVIEWsurely it should be applied in tort situations.6 His argument isbased on two contentions: (1) the doctrine would be less cumber-some in torts than in contracts because there are fewer variablesand in most situations there would be no need to look beyond thelaw of the place of the wrong, and (2) the doctrine has been adopt-ed in contract law while subject to a major objection which doesnot affect tort law, i.e., produces uncertainty in business matters.West Virginia through adoption of the Uniform CommercialCode has given legislative approval to the "significant contacts"doctrine in contract law." Since positive acts of the legislatureresulting in statutory law are a part of the "public policy" of WestVirginia,' there is little question but that in West Virginia lex lociwill yield to lex fori in cases involving the Uniform CommercialCode. The argument naturally follows that such legislative ap-proval of the "significant contacts" doctrine supplies the court withone ground for judicial endorsement in tort cases.9Babcock v. Jackson"0 pointed to a variety of decisions, bothrecent and of earlier origin, which though not expressly adoptingthe "center of gravity" theory did in fact weigh the contacts orinterest of the involved jurisdictions in determining which lawshould be applied. These included cases relating to workmen'scompensation, torts arising out of contracts, survival of a tort claim,intrafamiliar immunity and statutory liability. Though the differ-ences in these cases are many, there is a common thread runningthrough all these decisions, i.e., by one rationale or another thecourt did not apply the law of the "pace of the tort," but ratherapplied the law of a more interested jurisdiction. Though this lineof cases cannot be said to be precedent for a court's adopting the"center of gravity" theory, they certainly do show that its adoptionwould not be a sudden break with traditional holdings but ratherwould be the result of the gradual, orderly development of the law.It is in these early cases, which Judge Fuld" felt were mereforerunners to the "center of gravity" theory, that it could be argued6 Morris, The Proper Law of A Tort, 64 H~Av. L. REv. 881 (1951).7 W. VA. CODE, cb. 46, art. 1, § 105 (Michie 1966).8 116 W. Va. 187, 179 S.E. 604 (1935).9 Wlcox v. Wilcox, 26 Wis. 2d 617, 133 N.W.2d 408 (1965); Griffithv. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).10 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).11 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963).[Vol. 693Davis: Conflict of Laws--Torts--Lex Loci Delicti Yielding to SignificantPublished by The Research Repository @ WVU, 1967CASE COMMENTSthe West Virginia court has prepared itself to go along with themodem trend. In Poling v. Poling2 the court did not apply the lawof the place of the tort but rather applied the law of the forumstate, i.e., West Virginia. In that decision the court reasoned that"the Alabama rule, permitting a husband or wife to sue the otherfor damages for personal injury . . . is out of harmony with pro-nounced public policy of this state."'3 In light of this old caseit is interesting to note that in 1966 the Supreme Court of Minnesotareached the same result in a family immunity situation, i.e., appliedthe law of the domicile (forum) state, citing and following thereasoning of the "center of gravity" cases.' 4 Another West Virginiacase which fits into Judge Fuld's forerunner cases is Gooding v.Ott.'5 This was a workmen's compensation case resulting in arecovery by a widow whose husband was injured while temporarilyat work in a part of a mine extending into Maryland. The Work-men's Compensation Act contained the provision that disbursementof the fund could be made only when the employees "shall havereceived injuries in this state in the course of and resulting fromtheir employment."' 6 Notwithstanding this express language tothe contrary, the court allowed recovery for the out of state injurystating that to hold otherwise "would be out of harmony withother provisions of the act, and will work gross injustice to thoserequired to contribute to the compensation fund."'7 These twocases would seem to provide adequate groundwork for the WestVirginia court to do away with the "place of the injury" conceptwithout having to take a position completely adverse to pastholdings.In direct opposition to the above argument are the manyWest Virginia cases applying the "place of the injury" rule.'8 Infact the court has had much experience in dealing with gross' 116 W. Va. 187, 179 S.E. 604 (1935); The rule was also applied inCampbell v. Campbell, 145 W. Va. 245, 114 S.E.2d 406 (1960).'3 Poling v. Poling, 116 W. Va. 187, 192, 179 S.E. 604, 606 (1935).14 Balts v. Baits, 142 N.W.2d 66 (Minn. 1966). Minnesota has likewiseabandoned the lex loci delicti rule in a case involving a guest statute. Koppv. Rechtzigel, 141 N.W.2d 526 (Minn. 1966).1577 W. Va. 487, 87 S.E. 862 (1916).16 d. at 489, 87 S.E. at 862.17Id. at 490, 87 S.E. at 863.,6 See, e.g., Fomey v. Morrison, 144 W. Va. 722, 110 S.E.2d 840(1959)- Dallas v. Whitney, 118 W. Va. 106, 188 S.E. 766 (1936); Schadev. Smith, 117 W. Va. 703, 188 S.E. 114 (1936); Clise v. Prunty, 108 W. Va.635, 152 S.E. 201 (1930); Owen v. Appalachian Power Co., 78 W. Va. 596,89 S.E. 262 (1916).1967]4West Virginia Law Review, Vol. 69, Iss. 3 [1967], Art. 11https://researchrepository.wvu.edu/wvlr/vol69/iss3/11WEST VIRGINIA LAW REVIEWnegligence under the guest statutes of other states. 9 Apparently thecourt, in the past, has rejected the idea that failure of the legislatureto adopt a guest statute in West Virginia established a publicpolicy against their being applied to West Virginia citizens inWest Virginia courts." In fact, without specifically stating it, thecourt in these guest statute cases has been following the rule thatdifference with respect to the degree of negligence (gross v.simple) between lex loci delicti and lex fori will not be groundsfor the forum court to find the law of the place of the injuryrepugnant to the law of the forum." In light of these foreignguest statute cases in West Virginia, it becomes apparent that thefinal determination when the "center of gravity" concept istested in the West Virginia court will depend upon the weight thecourt gives to stare decisis. Other courts confronted with pre-cedent in these cases have almost uniformily stated that staredecisis has little significance with respect to unintentional tortswhere the wrongdoer's conduct is not planned.2The principal case refines Babcock v. Jackson by combining the"center of gravity" rule in torts with a workable standard that canbe applied in every case. There is West Virginia statutory andcase law similar to that which in other jurisdictions proved to besomewhat persuasive in adopting the "significant contacts" concept.Whether the West Virginia court, when confronted with the issue,will yield to such persuasion or whether they will wait for furtherrefinement is a question which depends largely on the weight thecourt will give to stare decisis.K. Paul Davis19 See, e.g., Thornsbury, Adm'r. v. Thomsbury, 147 W. Va. 771 131S.E.2d 713 (1963); Dodr,51 v. Young, 143 W. Va. 429, 102 S.E.2d 724(1958); Grim v. Moore, 121 W. Va. 299, 3 S.E.2d 448 (1939); White v.Hale, 118 W. Va. 85, 188 S.E. 768 (1936); Wood v. Shrewsbury, 117 W. Va.569, 186 S.E. 294 (1936).2 0 Wilcox v. Wilcox, 26 Wis. 2d 617 133 N.W.2d 408 (1965) where itwas reasoned that since the legislature had not seen fit to adopt a gueststatute it would be contrary to legislative policy to apply other than Wiscon-sin (forum) law.21 Annot., 84 A.L.R. 1268 (1933).22 Balts v. Baits, 142 N.W.2d 66 (Minn. 1960); Wilcox v. Wilcox, 26Wis. 2d 617, 133 N.W.2d 408 (1965).[Vol. 695Davis: Conflict of Laws--Torts--Lex Loci Delicti Yielding to SignificantPublished by The Research Repository @ WVU, 1967

Conflict of Laws--Torts--Lex Loci Delicti Yielding to Significant Contracts

https://researchrepository.wvu.edu/cgi/viewcontent.cgi?article=3436&amp;context=wvlr

Conflict of Laws--Torts--Lex Loci Delicti Yielding to Significant Contracts

Abstract

Similar works

Full text

Available Versions

The Research Repository @ WVU (West Virginia University)