refusing to apply Michigan guest statute to accident in Michigan involving New York passengerSummary of this case from O'Connor v. Lee-Hy Paving Corp.
Argued November 25, 1968
Decided April 23, 1969
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, HOWARD A. ZELLER, J.
William D. Kiley for appellant.
Barry M. Shulman for respondent.
On October 16, 1964, Catharina Tooker, a 20-year-old coed at Michigan State University, was killed when the Japanese sports car in which she was a passenger overturned after the driver had lost control of the vehicle while attempting to pass another car. The accident also took the life of the driver of the vehicle, Marcia Lopez, and seriously injured another passenger, Susan Silk. The two girls were classmates of Catharina Tooker at Michigan State University and lived in the same dormitory. They were en route from the university to Detroit, Michigan, to spend the weekend.
Catharina Tooker and Marcia Lopez were both New York domiciliaries. The automobile which Miss Lopez was driving belonged to her father who resided in New York, where the sports car he had given his daughter was registered and insured.
This action for wrongful death was commenced by Oliver P. Tooker, Jr., the father of Catharina Tooker, as the administrator of her estate. The defendant asserted as an affirmative defense the Michigan "guest statute" (C.L.S., § 257.401 [Stat. Ann. 1960, § 9.2101]) which permits recovery by guests only by showing willful misconduct or gross negligence of the driver. The plaintiff moved to dismiss the affirmative defense on the ground that under the governing choice-of-law rules it was New York law rather than Michigan law which applied. The motion was granted by the Special Term Justice who concluded that: "New York State `has the greatest concern with the specific issue raised in the litigation' and that New York law should apply." The Appellate Division (Third Department) agreed with "the cogent argument advanced by Special Term" but felt "constrained" by the holding in Dym v. Gordon ( 16 N.Y.2d 120) to apply the Michigan guest statute.
We are presented here with a choice-of-law problem which we have had occasion to consider in several cases since our decision in Babcock v. Jackson ( 12 N.Y.2d 473) rejected the traditional rule which looked invariably to the law of the place of the wrong. Unfortunately, as we recently had occasion to observe, our decisions subsequent to rejection of the lex loci delictus rule "have lacked a precise consistency" ( Miller v. Miller, 22 N.Y.2d 12, 15; see, also, D. Currie, Comments on Reich v. Purcell, 15 UCLA L. Rev., 595-598). This case gives us the opportunity to resolve those inconsistencies in a class of cases which have been particularly troublesome.
In Babcock v. Jackson ( supra) the plaintiff was injured when an automobile in which she was a passenger crashed into a stone wall during a weekend trip with her neighbors to Ontario, Canada. The plaintiff as well as her neighbors, who owned and operated the vehicle, were New York domiciliaries and the car was registered and insured in the State. Upon her return to New York the plaintiff commenced an action to recover for her personal injuries. The Ontario "guest statute", which prohibited suits by guests against negligent hosts, was asserted as a defense.
This court rejected unequivocally the traditional lex loci delictus rule and refused to apply Ontario law. We noted that the traditional rule placed controlling reliance upon one fact which had absolutely no relation to the purpose of the ostensibly conflicting laws and thus resulted in decisions which often frustrated the interests and policies of the State in which the accident had taken place as well as our own State.
We thus observed in the case before us that the purpose of the Ontario guest statute was "to prevent the fraudulent assertion of claims by passengers, in collusion with the drivers, against insurance companies" (Survey of Canadian Legislation, 1 U. Toronto L.J. 358, 366) and that, "quite obviously, the fraudulent claims intended to be prevented by the statute are those asserted against Ontario defendants and their insurance carriers, not New York defendants and their insurance carriers. Whether New York defendants are imposed upon or their insurers defrauded by a New York plaintiff is scarcely a valid legislative concern of Ontario simply because the accident occurred there, any more than if the accident happened in some other jurisdiction." (12 N.Y.2d, supra, p. 483.)
We were careful to distinguish the interest of Ontario in this case from what it would have been, had the issue related to the manner in which the defendant had been driving his car at the time of the accident. "Where the defendant's exercise of due care in the operation of his automobile is in issue, the jurisdiction in which his allegedly wrongful conduct occurred would usually have a predominant, if not exclusive concern. In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place." ( 12 N.Y. 2 d, supra, p. 483.)
The issue before us, as Judge FULD pointed out, was "not whether the defendant offended against a rule of the road prescribed by Ontario for motorists generally or whether he violated some standard of conduct imposed by that jurisdiction, but rather whether the plaintiff, because she was a guest in the defendant's automobile, is barred from recovering damages for a wrong concededly committed." As to that issue we concluded it was New York which had the only interest. "New York's policy of requiring a tort-feasor to compensate his guest for injuries caused by his negligence cannot be doubted * * * and our courts have neither reason nor warrant for departing from that policy simply because the accident, solely affecting New York residents and arising out of the operation of a New York based automobile, happened beyond its borders. Per contra, Ontario has no conceivable interest in denying a remedy to a New York guest against a New York host for injuries suffered in Ontario by reason of conduct tortious under Ontario law." (12 N.Y.2d, supra, p. 482.)
Babcock v. Jackson ( supra) was followed by Dym v. Gordon ( 16 N.Y.2d 120). There, the plaintiff and defendant were both New York domciliaries who were taking courses at the University of Colorado during the summer of 1959. The plaintiff and defendant became acquainted at school and on one occasion, while a passenger in a car driven by the defendant, plaintiff was injured when the automobile collided with another vehicle.
Upon her return to New York, the plaintiff commenced an action to recover for her personal injuries. Again, a "guest statute" defense, predicated this time on Colorado law, was asserted. The Colorado statute, less severe in its effect than that of Ontario, permitted a guest to recover upon showing of gross negligence. The standard for recovery was apparently intended to lessen the possibility of fraud by requiring the plaintiff to sustain a heavier burden of proof and also may have represented a policy determination that drivers guilty of such reckless conduct be held fully responsible for their conduct. The assertion of the statute as a defense presented a question similar to that in Babcock v. Jackson ( supra).
Judge BURKE, speaking for the court, articulated a choice-of-law rule which we have had occasion to apply in numerous cases: "[I]t is necessary first to isolate the issue, next to identify the policies embraced in the laws in conflict, and finally to examine the contacts of the respective jurisdictions to ascertain which has a * * * superior interest in having its policy or law applied." (16 N.Y.2d, supra, p. 124.)
In applying the rule to the facts of the case we concluded that the purpose of this guest statute was not only to prevent fraudulent claims against Colorado insurers, but was intended as well to grant injured parties in other cars priority over the "ungrateful guest" in the assets of the negligent driver. Since the case, in fact, involved another vehicle and injured third parties, we concluded that Colorado, unlike Ontario in Babcock v. Jackson ( supra), had an interest in the application of its law. Faced with a true conflict of laws, a closely divided court determined that Colorado law ought to govern since the parties had resided in that State for so prolonged a period of time and there, therefore, seemed no unfairness in subjecting them to the law of Colorado.
The decision in Dym v. Gordon, upon which the Appellate Division relied in the instant case, is clearly distinguishable from the facts here. There is here no third-party "non-guest" who was injured and there is no question of denying such a party priority in the assets of the negligent defendant. We cannot, however, in candor rest our decision on this basis in light of a subsequent decision which refused to apply the Ontario guest statute in a case indistinguishable from Dym v. Gordon ( supra). (See Macey v. Rozbicki, 18 N.Y.2d 289.)
The primary point of division in Dym v. Gordon ( supra) focused not upon the choice-of-law rule quoted earlier (see dissenting opn. of FULD, J., 16 N.Y.2d, supra, pp. 129-130), but rather upon the construction placed on the Colorado guest statute which, upon reflection, we conclude was mistaken.
The teleological argument advanced by some (see Cavers, Choice-of-Law Process, p. 298) that the guest statute was intended to assure the priority of injured nonguests in the assets of a negligent host, in addition to the prevention of fraudulent claims, overlooks not only the statutory history but the fact that the statute permits recovery by guests who can establish that the accident was due to the gross negligence of the driver. If the purpose of the statute is to protect the rights of the injured "non-guest", as opposed to the owner or his insurance carrier, we fail to perceive any rational basis for predicating that protection on the degree of negligence which the guest is able to establish. The only justification for discrimination between injured guests which can withstand logical as well as constitutional scrutiny (see Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 508; Glona v. American Guar. Co., 391 U.S. 73; Levy v. Louisiana, 391 U.S. 68) is that the legitimate purpose of the statute — prevention of fraudulent claims against local insurers or the protection of local automobile owners — is furthered by increasing the guest's burden of proof. This purpose can never be vindicated when the insurer is a New York carrier and the defendant is sued in the courts of this State. Under such circumstances, the jurisdiction enacting such a guest statute has absolutely no interest in the application of its law.
The failure to come to grips with this problem in Macey v. Rozbicki ( supra) resulted in a decision which has confused and clouded the choice-of-law process in New York. There the defendants, Mr. and Mrs. Vincent Rozbicki, who were New York domiciliaries, were spending the summer in their home in Ontario. They invited Mrs. Rozbicki's sister, Miss Jean Macey, to spend a 10-day vacation with them. Miss Macey was injured when an automobile, owned by her brother-in-law and driven by her sister, collided with another vehicle.
The court correctly concluded that New York law governed, but in so doing ignored the rationale of Babcock and Dym in order to avoid a reconsideration of the construction placed on the guest statute. Thus the court wrote: "In the present case the relationship of two sisters living permanently in New York was not affected or changed by their temporary meeting together in Canada for a short visit there, especially since the arrangements for that visit had undoubtedly been made in New York State. Every fact in this case was New York related, save only the not particularly significant one that the particular trip on the day of the accident was between two points in Canada." ( 18 N.Y.2d, supra, p. 292.)
Substituted for a rational choice-of-law rule was a method of decision based on contact counting — a method open to the same criticism of unreasonableness as the earlier lex loci delictus rule. This analysis has been rejected in subsequent opinions. ( Matter of Crichton, 20 N.Y.2d 124, 133-134, adopting the approach of the concurring opinion in Macey v. Rozbicki which adhered to the Babcock rule; Matter of Clark, 21 N.Y.2d 478; Miller v. Miller, 22 N.Y.2d 12, supra; Intercontinental Planning v. Daystrom, Inc., 24 N.Y.2d 372.)
Viewed in the light of the foregoing discussion, the instant case is one of the simplest in the choice-of-law area. If the facts are examined in light of the policy considerations which underlie the ostensibly conflicting laws it is clear that New York has the only real interest in whether recovery should be granted and that the application of Michigan law "would defeat a legitimate interest of the forum State without serving a legitimate interest of any other State" ( Intercontinental Planning v. Daystrom, Inc., supra, p. 385).
The policy of this State with respect to all those injured in automobile accidents is reflected in the legislative declaration which prefaces New York's compulsory insurance law: "The legislature is concerned over the rising toll of motor vehicle accidents and the suffering and loss thereby inflicted. The legislature determines that it is a matter of grave concern that motorists shall be financially able to respond in damages for their negligent acts, so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted upon them." (Vehicle and Traffic Law, § 310.)
Neither this declaration of policy nor the standard required provisions for an auto liability insurance policy make any distinction between guests, pedestrians or other insured parties.
New York's "grave concern" in affording recovery for the injuries suffered by Catharina Tooker, a New York domiciliary, and the loss suffered by her family as a result of her wrongful death, is evident merely in stating the policy which our law reflects. On the other hand, Michigan has no interest in whether a New York plaintiff is denied recovery against a New York defendant where the car is insured here. The fact that the deceased guest and driver were in Michigan for an extended period of time is plainly irrelevant. Indeed, the Legislature, in requiring that insurance policies cover liability for injuries regardless of where the accident takes place (Vehicle Traffic Law, § 311, subd. 4) has evinced commendable concern not only for residents of this State, but residents of other States who may be injured as a result of the activities of New York residents. Under these circumstances we cannot be concerned with whether Miss Tooker or Miss Lopez were in Michigan for a summer session or for a full college education (see Baade, Counter-Revolution or Alliance for Progress? Reflections on Reading Cavers, The Choice-of-Law Process, 46 Texas L. Rev. 141, 168-170).
The Michigan courts have suggested that the purpose of their guest statute is to protect the owner of the vehicle ( Castle v. McKeown, 327 Mich. 518 ; Hunter v. Baldwin, 268 Mich. 106 ). It is no longer clear that a Michigan court would apply Michigan law here (see Abendschien v. Farrell, 11 Mich. App. 662 ; House v. Gibbs, 4 Mich. App. 519 ).
The argument that the choice of law in tort cases should be governed by the fictional expectation of the parties has been rejected unequivocally by this court. In Miller v. Miller ( 22 N.Y.2d 12, 20, supra) we wrote: "We reject the argument * * * that the choice of applicable law in this tort action should be determined on the basis of the expectations of the parties as derived from their contact with the State of the place of the accident. Such a determination of the applicable laws is based upon an obvious fiction having little to do with the laws in conflict. * * * `Though our nation is divided into fifty-one separate legal systems, our people act most [of] the time as if they lived in a single one. * * * [They suffer from a] chronic failure to take account of differences in state laws'. * * * It is for this reason that `[f]ew speculations are more slippery than assessing the expectations of parties as to the laws applicable to their activities, and especially is this true where the expectations relate to the law of torts'. Cavers, [Choice-of-Law Process], p. , 302 * * *)."
Moreover, when the Legislature has chosen to compel an owner of an automobile to provide a fund for recovery for those who will be injured, and thus taken the element of choice and expectation out of the question, it seems unreasonable to look to that factor as a basis for a choice of law. And, even if we were to engage in such fictions as the expectations of the parties, it seems only fair to infer that the owner of the vehicle by purchasing a New York insurance policy which provided for the specific liability "intended to protect [the] passenger against negligent injury as well as to secure indemnity for liability, in whatever state an accident might occur" ( Kopp v. Rechtzigel, 273 Minn. 441, 443).
The dissenting opinion makes much of the fact that it was purely "adventitious" that Miss Tooker, a temporary resident in Michigan, chose to ride in Miss Lopez's automobile rather than an automobile owned by a Michigan domiciliary. This factor we are told requires the application of Michigan law. Choice-of-law decisions in guest statute cases, the dissent suggests, ought to turn on whether or not it was "adventitious" that the passenger was in a car registered and insured in New York as opposed to the jurisdiction in which the relationship is seated and has its purpose.
The dissent is, of course, correct that it was "adventitious" that Miss Tooker was a guest in an automobile registered and insured in New York. For all we know, her decision to go to Michigan State University as opposed to New York University may have been "adventitious". Indeed, her decision to go to Detroit on the weekend in question instead of staying on campus and studying may equally have been "adventitious". The fact is, however, that Miss Tooker went to Michigan State University; that she decided to go to Detroit on October 16, 1964; that she was a passenger in a vehicle registered and insured in New York; and that as a result of all these "adventitious" occurrences, she is dead and we have a case to decide. Why we should be concerned with what might have been is unclear.
Certainly we cannot make believe that the car was registered and insured in Michigan any more than we can make believe that Miss Tooker is not dead. Moreover, it is difficult to comprehend why we should adopt such "a rule of make believe". The only reason suggested by the dissent is that such a rule is "a simple rule easy to apply with a high degree of certainty" ( infra, p. 595). We cannot agree that this is so. But even if we did, we would reject the rule for the same reason we rejected the lex loci delictus rule which this description more aptly fits. To state the matter simply, we are concerned with rational and just rules and not merely simple rules. (Cardozo, Growth of the Law, Selected Writings of Benjamin Nathan Cardozo [Hall ed.] p. 247; Hopkins, The Formulation of Rules; A Preliminary Theory of Decision, 35 Brooklyn L. Rev. 165, 173.) As Judge BURKE noted in Dym v. Gordon (16 N.Y.2d, supra, p. 123): "Our courts now have adopted a rule of choice of law in a conflict situation which looks to reason and justice in its selection of which law should apply and which fits the needs of today's world where long and frequent travel is no longer reserved to a few."
We rejected the lex loci delictus rule because it placed controlling reliance upon one factor totally unrelated to the policies reflected by the ostensibly conflicting laws. The only fact less relevant to those policies in guest statute cases is whether the presence of the guest in the particular automobile was "adventitious".
Similar reasons compel the rejection of the rule suggested by the Restatement, 2d, Conflict of Laws, P.O.D., pt. II, § 159, upon which the dissent relies. Where the guest-host relationship "arose" or is "centered" is wholly irrelevant to policies reflected by the laws in conflict. Any language in our earlier opinions lending support to a contrary view has, as Judge BURKE notes in his concurring opinion ( infra, p. 591), been overruled. We would note that there is some question as to whether the portion of the Restatement, relied upon by the dissent, is applicable to the precise facts present here.
The dissent concedes that "there is no total escape from considering the policies of other States. But this necessity should not be extended to produce anomalies of results out of the same accident, with unpredictability, and lack of consistency in determinations. Thus, it is hard to accept the implicit consequence that Miss Silk, the Michigan resident injured in the accident, should not be able to recover in Michigan (and presumably in New York) but a recovery can be had for her deceased fellow-passenger in the very same accident" ( infra, p. 597).
Applying the choice-of-law rule which we have adopted, it is not an "implicit consequence" that the Michigan passenger injured along with Miss Lopez should be denied recovery. Under the reasoning adopted here, it is not at all clear that Michigan law would govern ( Gaither v. Myers, 404 F.2d 216, 224 [D.C. Cir., 1968]). We do not, however, find it necessary or desirable to conclusively resolve a question which is not now before us. It suffices to note that any anomaly resulting from the application of Michigan law to bar an action brought by Miss Silk is "the implicit consequence" of a Federal system which, at a time when we have truly become one nation, permits a citizen of one State to recover for injuries sustained in an automobile accident and denies a citizen of another State the right to recover for injuries sustained in a similar accident. The anomaly does not arise from any choice-of-law rule.
Indeed, the rule advanced by the dissent, unlike the rule we have adopted, will only foster rather than alleviate such anomalies. Thus, suppose in Babcock v. Jackson ( supra) the driver of the vehicle had picked up a hitchhiker in Ontario who was injured along with his guest, Miss Babcock. And suppose in Macey v. Rozbicki ( supra) Mrs. Rozbicki had invited her next-door neighbor to go with her and her sister to church and both the Ontario guest and Miss Macey were injured. Under the rule advanced by the dissent, Ontario law would clearly apply to govern the right of the "Ontario" guests since it was purely "adventitious" that they were in a New York car rather than an Ontario car. On the other hand, the same rule would permit recovery by the "New York" guests since it was not "adventitious" that they should have been in a New York vehicle at the time. We agree with the dissent that a rule which fosters such "lack of consistency" and "unpredictability" without any compensating features is hardly worthy of adoption or consideration.
Before concluding this opinion we cannot fail to take note of one additional argument raised in the dissenting opinion to the effect that the choice-of-law rule articulated in our recent decisions merely amounts to a rule which will always result in the application of New York law — "a domiciliary conceptualism that rested on a vested right accruing from the fact of domicile" ( Miller v. Miller, 22 N.Y.2d, supra, p. 29 [dissenting opinion]). This argument ignores the fact that our decisions since Babcock v. Jackson ( supra) have not always resulted in the application of the law of New York and have, indeed, indicated proper recognition and respect for the legitimate concerns of other jurisdictions and the real expectations of the parties. As we recently observed in the course of an opinion in a tort case, "[w]e must recognize that, in addition to the interest in affording the plaintiff full recovery, there may be other more general considerations which should concern `a justice-dispensing court in a modern American state'. * * * Among other considerations are the `fairness' of applying our law where a nonresident or even a resident has patterned his conduct upon the law of the jurisdiction in which he was acting * * * as well as the possible interest of a sister State in providing the remedy for injuries sustained as a result of conduct undertaken within its borders". ( Miller v. Miller, 22 N.Y.2d, supra, p. 19.) This dictum is exemplified by many decisions.
See note, 43 St. Johns L. Rev. 277.
In Intercontinental Hotels Corp. v. Golden ( 15 N.Y.2d 9) we enforced a gambling debt incurred by a New York domiciliary while in Puerto Rico. The debt was valid under the laws of that jurisdiction but invalid under our own laws. We noted that what was at issue was the validity of a contractual agreement entered into in accordance with the laws of Puerto Rico and that injustice would result if we were to refuse to enforce the agreement. Judge BURKE, speaking for the court, carefully examined the history and purpose of the laws in conflict and he concluded that New York and Puerto Rican law evinced similar legislative concerns and that the difference in effect did not warrant the injustice which would result in interfering with the real expectations of the parties. "In the present case there is no indication that the evils of gambling, which New York prohibits and Puerto Rico has licensed will spill over into our community if these debts are enforced in New York courts. The New York constitutional provisions were adopted with a view toward protecting the family man of meager resources from his own imprudence at the gaming tables. * * * Puerto Rico has made provision for this kind of imprudence by allowing the court to reduce gambling obligations or even decline to enforce them altogether, if the court in its discretion finds that the losses are `[in an] amount [which] may exceed the customs of a good father of a family.' * * * This regulation is consistent with New York policy and would be properly considered in any case before a New York court which may be asked to enforce a Puerto Rican gambling debt. * * * [I]njustice would result if citizens of this State were allowed to retain the benefits of winnings in a State where such gambling is legal, but to renege if they were losers." (15 N.Y.2d, supra, p. 15.)
In Oltarsh v. Aetna Ins. Co. ( 15 N.Y.2d 111) a New York resident was injured in a building in Puerto Rico. Upon her return to New York she commenced a direct action which was authorized under Puerto Rican law but not permitted under New York law. We noted that the New York policy proscribing direct actions was founded upon a concern that prejudice would result if the jury were aware of the presence of insurance in a case in which it was not otherwise relevant. We noted, however, that disclosure of insurance was condemned only where the fact of its existence was irrelevant to the issues and where the reference was made for the purpose of improperly influencing the jury. "Where, however, the fact of insurance or the existence of an insurer is properly or legitimately in the case, there can be no ground for complaint. * * * Likewise, where an insurer sued for damages stemming from its own breach of contract or commission of a tort, the plaintiff is not denied a right to trial by jury simply because his adversary happens to be an insurance company." (15 N.Y.2d, supra, p. 118.)
Where the insurance company had issued a policy subjecting itself to suit directly — as required under Puerto Rican law — the presence of insurance was properly in the case. Therefore, New York had no interest in applying its own law which first required an unsatisfied judgment against the tort-feasor before a suit was commenced against the insurance company. On the other hand, Judge FULD, speaking for the court, noted that: "Puerto Rico has a legitimate interest in safeguarding the rights of any persons injured within its borders. Enactment of the statute emphasizes the Commonwealth's understanding that such injured persons might have to be cared for by it (or its inhabitants) and evidences its intention that certain and prompt compensation, from the tort-feasor's insurer, be available both to those injured and to those who care for them. What the Supreme Court wrote in Watson v. Employers Liab. Corp. ( 348 U.S. 66, supra), in upholding the constitutionality of Louisiana's direct action statute, is to the point (p. 72): `Persons injured or killed in Louisiana are most likely to be Louisiana residents, and even if not, Louisiana may have to care for them. Serious injuries may require treatment in Louisiana homes or hospitals by Louisiana doctors. The injured may be destitute. They may be compelled to call upon friends, relatives or the public for help. Louisiana has manifested its natural interest in the injured by providing remedies for the recovery of damages. It has a similar interest in policies of insurance which are designed to assure ultimate payment of such damages.'" ( 15 N.Y.2d, supra, p. 117.)
Again in Matter of Clark ( 21 N.Y.2d 478) we looked to the law of Virginia, the place where a widow resided, to determine the extent of her share in the estate of her deceased husband, despite the presence of assets of the deceased in this State. We noted that Virginia, as domicile of the husband and wife, was primarily, indeed solely, concerned with the manner in which the wife was provided for after her husband's death.
These decisions, rendered in various stages of the development of the choice-of-law rule recently articulated, are nevertheless consistent with that rule. (B. Currie, The Disinterested Third State, 28 Law Contemporary Problems, 754, 757.) They refute completely the implication in the dissenting opinion that we have adopted a rule which will always result in the application of New York law. Rather we have adopted a rule founded in reason and justice which affords easy application in most if not all situations.
The order of the Appellate Division should be reversed, with costs, and the order of Special Term reinstated.
I join in the court's opinion but, in doing so, I would add these few brief comments.
Our court has, consistently with the approach adopted in Babcock v. Jackson ( 12 N.Y.2d 473), emphasized the need for analyzing and measuring the relevant interests of the states involved as to the particular issue presented in order to determine the decisional rule which is to govern. We departed from the traditional choice-of-law rule in personal injury cases, because it "fails to take account of underlying policy considerations" (12 N.Y.2d, at p. 478), and adopted a principle designed to afford an "appropriate approach for accommodating the competing interests in tort cases with multi-State contacts" (p. 481). We were willing to sacrifice the absolute certainty assured by the old rule for the more just, fair and practical result that may best be achieved by giving controlling effect to the law of the state which has the greatest concern with, or interest in, the specific issue raised in the litigation.
In consequence of the change — and this was, of course, to be anticipated — our decisions in multi-state highway accident cases have not featured consistency. (See, e.g., Miller v. Miller, 22 N.Y.2d 12, 16.) Indeed, guest-host suits have proved to be, as Judge KEATING notes (opn., p. 572), "a class of cases which have been particularly troublesome." The time has come, it seems to me, for us to endeavor to minimize what some have characterized as an ad hoc case-by-case approach by laying down guidelines, as well as we can, for the solution of guest-host conflicts problems. We have had sufficient experience with enough variations of the patterns of fact and law in this type of case to permit us to acknowledge that several choice-of-law rules governing different types of fact patterns have been forged by our recent decisions.
Babcock and the decisions it heralded place in our hands an instrument not confined to the rare and unusual situation. Rather, they comprise a sound foundation for a set of basic principles which the practicing lawyer, as well as the conflicts scholar, may be able to wield with good results. They have helped us uncover the underlying values and policies which are operative in this area of the law. Now that these values and policies have been revealed, we may proceed to the next stage in the evolution of the law — the formulation of a few rules of general applicability, promising a fair level of predictability. Although no rule may be found or framed to guarantee a satisfying result in every case, we cannot hope to deal justly with the legion of multi-state highway accident cases by regarding each case as one of a kind and unique. We should attempt, as has been suggested, to avoid "both unreasonable rules and an unruly reasonableness that is destructive of many of the values of law and that loses sight of the need for coordinating a multi-state system". (Rosenberg, Two Views on Kell v. Henderson, 67 Col. L. Rev. 459, 464.)
Without attempting too much, I believe that we may accept the following principles as sound for situations involving guest statutes in conflicts settings:
1. When the guest-passenger and the host-driver are domiciled in the same state, and the car is there registered, the law of that state should control and determine the standard of care which the host owes to his guest.
2. When the driver's conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim's domicile. Conversely, when the guest was injured in the state of his own domicile and its law permits recovery, the driver who has come into that state should not — in the absence of special circumstances — be permitted to interpose the law of his state as a defense.
3. In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants. (Cf. Restatement, 2d, Conflict of Laws, P.O.D., pt. II, §§ 146, 159.)
Guidelines of the sort suggested will not always be easy of application, nor will they furnish guidance to litigants and lower courts in all cases. They are proffered as a beginning, not as an end, to the problems of sound and fair adjudication in the troubled world of the automobile guest statute.
Since, in the case before us, the guest-passenger and the host-driver were both domiciled in this State and the automobile was here registered, we look to New York law to determine the standard of care to be applied between those parties.
The legal issue presented by this appeal is this: Do the prior decisions of this court — particularly our trilogy of "guest statute" cases, Babcock v. Jackson ( 12 N.Y.2d 473), Dym v. Gordon ( 16 N.Y.2d 120), and Macey v. Rozbicki ( 18 N.Y.2d 289) — mandate that there be applied to this personal injury action the law of this State or must Michigan's guest statute be deemed applicable?
It was, until quite recently, well settled that this court would invariably determine the substantive rights and liabilities of litigants by applying the law of the jurisdiction in which the wrong occurred. (See, e.g., Coster v. Coster, 289 N.Y. 438; Kaufman v. American Youth Hostels, 5 N.Y.2d 1016.)
Shortly after our decision in Kaufman, the Appellate Division (Fourth Department) had occasion to review this rule of lex loci delictus. ( Babcock v. Jackson, 17 A.D.2d 694.) As in prior cases, the doctrine was attacked on the basis that its inflexible application often produced unjust results. As in Coster and Kaufman, the rule was again upheld. Justice HALPERN dissented, stating that "in a case like the present one, in which the relationship of guest and host was created by an arrangement made in New York between New York residents, New York clearly has a vital interest in the determination of the incidents of the relationship." He continued by noting "the modern view, in a common-law tort action, [whereby] the law of the State which has `the most significant contacts with the matter in dispute' and which has the dominant interest in it is accepted as the governing law." (17 A.D.2d, supra, p. 695.)
The factual setting in Babcock was truly ideal for demonstrating the unjust and anomalous results which flow from the application of the traditional rule of lex loci delictus. Plaintiff and her friends, Mr. and Mrs. Jackson, left their places of residence in Rochester for a weekend trip to Canada. While passing through the Province of Ontario, Mr. Jackson apparently lost control of his car as it left the highway and crashed into a stone wall. Miss Babcock suffered severe injuries as a result of the accident. After returning to New York, she instituted an action against William Jackson, contending that he operated the vehicle in a negligent manner. At the time of the accident, Ontario had a guest statute immunizing owners and drivers from liability, thus apparently barring recovery in her case. (Highway Traffic Act of Province of Ontario [Ontario Rev. Stat. (1960), ch. 172], § 105, subd. .) Judge FULD, writing for the majority of the court, began by posing this question: "Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?" (12 N.Y.2d, supra, p. 477.) After reviewing the history of the traditional lex loci delictus choice-of-law rule, Judge FULD clearly and unequivocally rejected it, noting that such a rule "ignore[d] the interest which [other] jurisdictions * * * may have in the resolution of particular issues." (12 N.Y.2d, supra, p. 478.)
The rejection of the lex loci doctrine was thus easily accomplished. The vexing problem remained of adopting a new approach for choice of law situations whereby "Justice, fairness and `the best practical result' * * * may best be achieved". ( 12 N.Y.2d, supra, p. 481.)
In postulating a choice-of-law process which would replace the lex loci rule, we first indicated in Babcock our adoption of the "center of gravity" or "grouping of contacts" doctrine. ( 12 N.Y.2d, supra, p. 481.) Thereafter, in elaborating upon the "grouping of contacts" doctrine, it was stated that the "action involves injuries sustained by a New York guest as the result of the negligence of a New York host in the operation of an automobile, garaged and licensed and undoubtedly insured in New York, in the course of a week-end journey which began and was to end there. In sharp contrast, Ontario's sole relationship with the occurrence is the purely adventitious circumstance that the accident occurred there" (12 N.Y.2d, supra, p. 482). These contacts were later re-emphasized when it was declared that "it is New York, the place where the parties resided, where their guest-host relationship arose and where the trip began and was to end, rather than Ontario, the place of the fortuitous occurrence of the accident, which has the dominant contacts and the superior claim for application of its law." (12 N.Y.2d, supra, p. 483.)
The holding in Babcock was then clearly expressed in these terms — "reconsideration of the inflexible traditional rule persuades us * * * that in failing to take into account essential policy considerations and objectives, its application may lead to unjust and anomalous results. This being so, the rule, formulated as it was by the courts, should be discarded." (12 N.Y.2d, supra, p. 484.)
Following our decision in Babcock v. Jackson ( supra), several conflicts scholars were invited to comment upon it by the Columbia Law Review. Professors Cavers, Cheatham, Currie, Ehrenzweig, Leflar and Reese responded and expressed their views. (Comments on Babcock v. Jackson, 63 Col. L. Rev. 1212 .) While indicating unanimous support for Babcock's holding, these professors proffered different theories when evaluating the choice-of-law rule established by that opinion. For example, Professor Cheatham gave great emphasis to our discussion of the concepts of "center of gravity" and "grouping of contacts." (63 Col. L. Rev. 1229.) Professor Currie believed that the court adopted his theory of "governmental interests." (63 Col. L. Rev. 1233, 1234-1235.) Professor Ehrenzweig interpreted the decision as valuable support for his theory of applying "the law of the state where the insured car is permanently kept". (63 Col. L. Rev. 1243, 1246.) Professors Cavers, Leflar and Reese were unable to agree with any of the above-mentioned views. (63 Col. L. Rev. 1219, 1247, 1251.)
Candor requires that we acknowledge the difficulty we experienced in applying the broad language of Babcock in the subsequent case of Dym v. Gordon ( supra). Plaintiff and defendant in that case were New York residents taking summer courses at the University of Colorado. On August 11, 1959 without any prior arrangement, Rhoda Dym entered Morris Gordon's automobile with his consent. Their destination was Longmont, Colorado. Plaintiff's injuries resulted from a collision with a car owned and operated by a resident of Kansas, which occurred during the short journey to Longmont. The law of Colorado barred a guest's recovery against his host unless there was a showing of "willful and wanton disregard of the rights of others." (Col. Rev. Stats., § 13-9-1.) The issue in Dym, quite simply, was whether the rationale of Babcock required the application of the law of New York or Colorado.
The majority commenced this task by noting that, in conjunction with Babcock, "it is necessary first to isolate the issue, next to identify the policies embraced in the laws of conflict, and finally to examine the contacts of the respective jurisdictions to ascertain which has a superior connection with the occurrence and thus would have a superior interest in having its policy or law applied." (16 N.Y.2d, supra, p. 124; emphasis supplied.) Employing this analysis, I found Babcock distinguishable in view of the fact that "the parties [in Dym] were dwelling in Colorado when the relationship was formed and the accident arose out of Colorado based activity; therefore, the fact that the accident occurred in Colorado could in no sense be termed fortuituous." (16 N.Y.2d, supra, p. 125.) Continuing, I noted that "where Colorado has such significant contacts with the relationship itself and the basis of its formation, the application of its law and the underlying policy [was] clearly warranted." (16 N.Y.2d, supra, p. 125.)
Certain of the dissenters in Dym, also claiming allegiance to Babcock, concluded that New York law should apply. Judge FULD contended that "the decisive consideration, in the present case, is that Colorado's statute, paralleling Ontario's, has as its prime objective the protection of Colorado driver-defendants and their insurance carriers against fraudulent claims and lawsuits. * * * Manifestly, that policy of Colorado can in no way be served by applying its statute to an action, such as the present, which is brought in New York and involves not residents of Colorado or their insurance carriers but only New Yorkers and a New York based and insured vehicle." (16 N.Y.2d, supra, p. 131.)
The difficulties attached to the formation of a choice-of-law process were thus made evident in Dym. A dichotomy of views was again evidenced by this court in our most recent guest statute case, Macey v. Rozbicki ( 18 N.Y.2d 289, supra). Plaintiff Macey was the sister of the defendant-driver Rita Rozbicki, who was driving her husband's car. All three were residents of Buffalo. In late June, 1962, plaintiff was invited by the Rozbickis to be their guest for 10 days at a summer residence just across the Niagara River. During this vacation, plaintiff was injured when the Rozbicki vehicle was involved in a collision in a Canadian village near their Waverly Beach summer home. As in Babcock, defendant pleaded the Ontario guest statute as a complete defense. In a terse majority opinion, it was stated that "the relationship of two sisters living permanently in New York was not affected or changed by their temporary meeting together in Canada for a short visit there, especially since the arrangements for that visit had undoubtedly been made in New York State." (18 N.Y.2d, supra, p. 292.) Ignoring the majority's reliance upon Dym by its determination that the origin of the guest-host relationship was a significant and determinative factor, Judge KEATING concurred in the application of New York law because this State was "the residence of the parties and the place in which the automobile is insured and registered." ( 18 N.Y. 2 d, supra, p. 295.)
Macey represents the most recent choice-of-law case involving a guest statute, and, were it also the latest pronouncement in the conflicts area, I would indeed be in agreement with the dissenters when they say that the Michigan guest statute should be applied in this case. However the instant case cannot be decided by merely categorizing it with reference to those decisions which involve guest statutes. On the contrary, we must acknowledge that subsequent decisions, involving questions unrelated to the present appeal, have provided the vehicles for "clarifying" our choice-of-law process. I refer specifically to our decisions in Matter of Crichton ( 20 N.Y.2d 124); Farber v. Smolack ( 20 N.Y.2d 198); Matter of Clark ( 21 N.Y.2d 478), and Miller v. Miller ( 22 N.Y.2d 12). Judge KEATING, in his opinion, properly indicates that these decisions effectively advanced the choice-of-law rule as pronounced in Babcock and applied in Dym and Macey. Indeed, Matter of Crichton clearly established that the choice-of-law process consists of an analysis of the interests of the States involved in seeing their law applied in a particular factual situation. (20 N.Y.2d, supra, p. 133.)
While we spoke of interest analysis in these recent cases ( Matter of Crichton, supra; Farber v. Smolack, supra; Matter of Clark, supra, and Miller v. Miller, supra), I feel that the respective results would have been the same had we adhered to the doctrine of "grouping of contacts" or "center of gravity" ( Babcock v. Jackson, 12 N.Y.2d, supra, p. 481). The present litigation, I maintain, is the first case wherein the determination will vary with the selection of a choice-of-law analysis. Thus, were we to consider this case solely in light of Babcock and Dym, it is quite obvious that the Michigan guest statute would be sustained as a defense to the personal injury action. This case then illustrates the significance of the choice-of-law approach. By the same token, I feel it demonstrates the weakness of the interest analysis doctrine. In Dym, for example, the fact that there were other persons involved in the accident who were not from New York was significant as was the origin of the relationship. These factors, present in this case and relied upon by the dissenters, can no longer be considered as we have firmly committed ourselves to the interest analysis approach. I am thus unable to join my dissenting brethren who adhere to Dym v. Gordon ( supra).
From all that has been written, it is apparent that our decision in Dym is overruled. I mark the passing of Dym with regret as I viewed that case as an expression of a policy of this court that we would not always hold a foreign guest statute inapplicable where the defendant was from New York. It is evident that the philosophy of the court has changed since Dym and, as a result of this transformation, we have firmly embarked upon an interest analysis approach to a conflicts problem. For that reason, I join in the majority opinion and concur in its adoption of the views first expressed by Judge KEATING in Macey v. Rozbicki ( 18 N.Y.2d 289, supra). While this approach may indeed provide certainty for guest statute cases, it does not, I feel, remove all future problems from the area. Reference to the status of Miss Silk illustrates this point.
It is not at all clear whether the majority would conclude that she too, although not a New York resident, could recover should she bring an action against this defendant. Logically, the majority might declare, as they have in this case (p. 577), that "the Legislature, in requiring that insurance policies cover liability for injuries regardless of where the accident takes place * * * has evidenced commendable concern not only for residents of this State, but residents of other States who may be injured as a result of the activities of New York residents." The dissenters, however, intimate that since Miss Silk could not recover in Michigan, she would presumably be barred from a recovery in this court.
I am not now prepared to decide that question nor am I ready to suggest what this State's interest would be in the present situation if the car were not insured in New York. I merely refer to these situations to illustrate the difficulty which we shall encounter in future guest statute cases even under the standard adopted by the majority today. I am well aware, as are my brethren, that guest statutes in general are less rigorously applied today than when they were first enacted (Pedrick, Taken for a Ride: The Automobile Guest and Assumption of Risk, 22 La. L. Rev. 90 ; see, also, Ehrenzweig, Conflict of Laws, § 220) and that such a statute invariably represents a mere exception to a particular State's general rule of liability. Nevertheless, the statutes still remain in a minority of jurisdictions. While the result reached by the court today may well serve as the basis for a new rule for this State in guest statute cases, it cannot purport to solve the unanticipated factual situations which, no doubt, will confront us shortly. For this reason, and because of the nature of automotive traffic today, I view the entire matter as one of national concern which cannot be settled by any rule this court might proffer. As the matter is of Federal dimension, only Federal legislation will ultimately succeed in resolving these continuing controversies in a rational and equitable manner.
Until such needed legislation is forthcoming, it will remain incumbent upon us to resolve these guest statute controversies as they arise. Since the onus is presently with us, I would reverse the order of the Appellate Division in this case and reinstate the order of Special Term.
Plaintiff's and defendant's deceased daughters were fellow students in residence in pursuit of academic degrees in Michigan State University at Lansing, Michigan. They and a third fellow student, a resident of Michigan, traveled in a sports car automobile provided for the exclusive use of the defendant's deceased daughter by her father in whose name the car was registered and insured. The trip originated in Lansing and was to end in Detroit, Michigan, but was abruptly terminated by the accident, fatal to defendant's daughter, en route to Detroit. The trip was initiated entirely while the young women were in attendance at the school. The sports car had been newly acquired for the defendant's deceased daughter for her use at school in Michigan and was garaged there. The father had driven it once or twice; he had another automobile for his and his wife's use.
Except for the facts that plaintiff and the deceased were New York residents, that defendant's deceased daughter had a New York operator's license, that the registered owner of the car was a New York resident, and that the car was registered and insured in New York, every other facet of the accident was based in Michigan and was as localized as it could be in that State. The students were in residence at the university, were not in sojourn for short courses or interim sessions, or on tour. The trip was intrinsically and exclusively a Michigan trip, concerned only with Michigan places, roads, and conditions.
The registration and ownership of the car and the residence of its driver, as well as that of plaintiff's deceased daughter, were adventitious so far as this trip was concerned. The same trip with the same purposes with some automobile would have or could have taken place among a similar group of students from other States or Michigan, or by the same students, even if the States of residence and automobile ownership and insurance were changed. Indeed, defendant might have chosen to have the automobile registered and insured in either Michigan or New York, and in his daughter's name, since the car, as a matter of family arrangements, was really hers rather than his.
In this highly mobile and automotive Nation the slight admixture of multi-state contacts as occurred here is now very frequent, and is becoming increasingly so. Unless conflicts rules move over to substitute a completely personal law for the territorial system that infuses Anglo-American jurisprudence and underlies the understanding and expectations of Americans, it is still true that the law of a territory governs the conduct and qualifiedly the status of persons, resident and nonresident, within it, except in the extraordinary situation where the localization of persons and conduct is adventitious. At least this has been true until quite recently. No doubt, in Miller v. Miller ( 22 N.Y.2d 12), in a context sufficiently different from this case and involving a death action statute rather than a guest-host statute, and, therefore, not controlling here, the majority took a different view.
What the rules, exemplified by Babcock v. Jackson ( 12 N.Y.2d 473; Macey v. Rozbicki ( 18 N.Y.2d 289), and Farber v. Smolack ( 20 N.Y.2d 198) established, and very rightly so, was that when the territory in which the accident occurs is wholly adventitious to the relationship or status among the parties, that factor should not determine the applicable law. In each of these cases the seat and purpose of the relationship was established to be elsewhere than where the accident occurred. It was the place of the accident that could be changed without changing or affecting the other relationships. In short, except in a rather minimal way, the conduct of the parties was not affected by the place where the accident occurred. It was, therefore, adventitious.
The converse occurred in this case. The incidental registration and ownership of the car, and the domicile of these Michigan students, did not influence their conduct or the establishment or nature of the relationship among them. Regardless of these facts they would undoubtedly have entered into the same relationship, made the same trip, and behaved the same way. These facts were, therefore, extrinsic or adventitious.
On this view, Dym v. Gordon ( 16 N.Y.2d 120) was soundly decided, and this case, which is even stronger on its intrinsic facts because of the young women's being students in residence, as that term is used in the academic world, should be decided the same way (Cavers, Choice-of-Law Process, pp. 300-304). In the Dym case, the parties were summer students at the University of Colorado, enrolled for a six-week course, and it was out of that relationship that the Colorado automobile trip was initiated and was to be concluded. The New York residence of the parties and the New York registration and ownership of the car were adventitious. Change these adventitious facts and it is likely that the same trip with the same people in perhaps the same car would have taken place just the same.
On the foregoing analysis, the Michigan guest-host statute should be applied. The latest Restatement draft would do as much (Restatement, 2d, Conflict of Laws, P.O.D., pt. II, § 159, esp. Comment b ). What that means concretely is that when plaintiff's deceased daughter as a Michigan student in residence became a guest of a fellow student in her car (however registered or owned), or even in a borrowed or rented car, for a Michigan automobile trip, she formed the relationship and accepted the consequence of that relationship under Michigan law, just as much as she did, on a different issue, in determining the standard of care to be applied to the automobile operator's conduct (compare Babcock v. Jackson, supra, p. 484, with Walton v. Arabian Amer. Oil Co., 233 F.2d 541, cert. den. 352 U.S. 872; see, also, Ehrenzweig, Local and Moral Data in the Conflict of Laws: Terra Incognita, 16 Buffalo L. Rev. 55, 57-58). This is not only a simple rule easy to apply with a high degree of certainty but offends no sense of justice except perhaps of those who look either to personal law or have a conscious or unconscious predilection for law of the forum as reflecting a higher degree of justice.
"§ 159. Duty Owed Plaintiff.
(1) The law selected by application of the rule of § 145 determines whether the actor owed a duty to the injured person and whether this duty was violated.
(2) The applicable law will usually be the local law of the state where the injury occurred.
* * *
Comment. * * * b. Exceptions to normal liability. Sometimes the actor may claim that because of his relationship to another he is immune from all tort liability to the other or else will be liable to the other only for some aggravated form of conduct, as recklessness or gross negligence. So a husband may claim that he is immune from tort liability to his wife and the driver of an automobile may contend that he can only be held liable to a guest passenger for intentional injuries or for some aggravated form of negligence. The local law of the state where the relationship is centered may be applied in such circumstances to determine whether the actor is excused from normal tort liability because of the relationship".
Moreover, it is a rule much more consistent with the genius of Anglo-American jurisprudence, does less violence to precedent, and yet accords ample and ungrudging recognition to the greater flexibility provided in conflicts cases by the modern approaches than the lex loci delictus doctrine which had always been overstated and too mechanically applied (see Dike v. Erie Ry., 45 N.Y. 113, which long ago, on an attenuated contract theory, ignored the lex loci delictus because the site of the accident was adventitious).
The fact is that the law to be applied should not itself be the paramount influence in weighing the circumstances of a case in which a choice of law must be made; rather the choice of law should be the conclusion of a selective process which looks initially to the circumstances or factors. To be sure, in considering the significance of the factors or circumstances of a case one must be influenced by the purposes of the relevant rules of law, since there can be no naked selection of facts without purpose anymore than there can be an application of a whole jurisprudence to a complex of multi-state facts. It is in this sense that the process of isolating the issues together with the significant policies is relevant (e.g., Restatement, 2d, Conflict of Laws, P.O.D., pt. II [May 1. 1968], § 145, incl. Comment b). This still does not mean that a preference for the policy of a relevant rule should in actual practice as so often happens, to the exclusion of everything else, determine its selection (Ehrenzweig, Multistate Tort Law, 53 Va. L. Rev. 847, 854; see, also, Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L. Rev. 267, 295-304). Indeed, in looking to the purpose of a rule one must expect that the rule expresses parochial or selective governmental interests in one or another class of residents, transients, citizens, or aliens who happen to be in the community, but this is hardly a sufficient justification for its elevation on some theory of a "super-law" (Ehrenzweig, Private International Law, § 18; Traynor, Is This Conflict Really Necessary?, 37 Tex. L. Rev. 657, 667).
For that matter any monistic attempt to find some one great principle or doctrine to cover all conflicts problems in all fields of law has not been and is not likely to be successful. Certain it is that contacts theory or governmental interests theory, and their several variations all help to explain the several influences effective in reaching results, but no one of them is entitled to recognition as a universal touchstone, yesterday, today, or tomorrow (see, e.g., Leflar, Comments on Babcock v. Jackson, 63 Col. L. Rev. 1212, 1247, 1248-1249). The efforts of analysts like Currie, Cavers, Reese, Ehrenzweig, and the Restatement itself, as much as those of the now-disavowed Beale, seek or sought to articulate why the selection between significant and adventitious facts divides them as it does, and to create or discover a viable rationale. The problem has been exacerbated, of course, by the scholar's, and sometimes the Judge's understandable penchant to discover a single embracive principle to cover all cases.
There are truly difficult cases where the division between the significant and adventitious facts is elusive. This case is hardly such a one. The trouble with overextending the successive and changing rationales from Auten v. Auten ( 308 N.Y. 155) in the contract field, through the Babcock case ( supra) and its progeny, is to introduce the very uncertainty and chaotic unpredictability that the extremist critics of any change from the lex loci rules predicted. It is not necessary to fulfill the worst of those predictions if one significant factor is recalled.
In modern theories in the field of conflicts, the analysts have generally posited, or in fact assumed, as a significant factor the place where the transaction occurred (Restatement, 2d, Conflict of Laws, P.O.D., pt. II, supra, § 146, Comment d, and Reporter's Note to Comment d). What has happened of course, is that lip service is paid to the factor of place, and promptly ignored thereafter, if the forum prefers its own policy preconceptions and especially if it requires denial of recovery to a plaintiff in a tort case. Of course, the contrary is likely to occur, where the new rules might otherwise displace the factor of locus, as in Kell v. Henderson ( 26 A.D.2d 595), a case involving the exact converse of the facts in Babcock v. Jackson ( supra) and the court applied New York law to Ontario residents to permit plaintiff to recover (see Rosenberg and Trautman, Two Views on Kell v. Henderson, 67 Col. L. Rev. 459, 465).
Intra-mural speculation on the policies of other States has obvious limitations because of restricted information and wisdom. It is difficult enough to interpret the statutes and decisional rules of one's own State. To be sure, there is no total escape from considering the policies of other States. But this necessity should not be extended to produce anomalies of results out of the same accident, with unpredictability, and lack of consistency in determinations. Thus, it is hard to accept the implicit consequence that Miss Silk, the Michigan resident injured in the accident, should not be able to recover in Michigan (and presumably in New York) but a recovery can be had for her deceased fellow-passenger in the very same accident.
If the trend continues uninterruptedly, the shift to a personal law approach in conflicts law, especially in the torts field, will continue apace (see Cavers, Choice-of-Law Process, supra, pp. 150-156). Apart from the fact that such a development is not logically consistent with Anglo-American jurisprudence, it would create a sharp division between intra-national conflicts rules and extra-national conflicts rules. It is most unlikely that such a development would be recognized elsewhere. Inevitably, the goals of uniformity, let alone predictability, in conflict rules would be frustrated, and the arbitrary results produced by forum-selection would be proliferated beyond tolerable limits.
For all of these reasons, I dissent and vote to affirm, and would deny the motion to dismiss the affirmative defense.
Opinion by Judge KEATING in which Chief Judge FULD and Judges BURKE and BERGAN concur; Chief Judge FULD and Judge BURKE also concur in separate opinions; Judge BREITEL dissents and votes to affirm in a separate opinion in which Judges SCILEPPI and JASEN concur.
Order reversed, with costs, and case remitted to Special Term for further proceedings in accordance with the opinion herein.