instances there is a like statutory cause of action given by each of the two states but the right of action is in different persons. In one case, as in Pennsylvania, it may be given to a surviving spouse or children or parents, and by the laws of the other state to the legal representative of the decedent, or, as in New Jersey, to a special representative as administrator ad prosequendum. The party plaintiff is dictated by the lex loci because the right of action is in the person to whom the cause of action is given, and the legal merits are adjudged in accordance with the same law, but the procedure followed is that of the forum. This is a well-settled doctrine.
The question before us is whether the same doctrine applies when the fact situation is reversed in that there is no cause of action under the lex loci, but the law of the forum would give it. If the lex loci controls when a right of action is given it is difficult to understand why it does not likewise control when one is not given. Viewed from another angle, the right given by the laws of Pennsylvania is a statutory right. How can a Pennsylvania statute have an extra territorial operation? The answer is that it does not have. It may be said with equal truth that the lex loci is likewise without extra territorial force. Why then should the courts of the forum give it effect? The answer is to be found in the duty imposed upon the courts of other states and the obligation which rests upon the tort-feasor. The courts of the state which gives the right of action would vindicate it if they had jurisdiction of the defendant. Not having such jurisdiction, they cannot try the cause. A court of another state, which has such jurisdiction, will by analogy to the doctrine of comity do what the courts of the first state cannot do but will apply the same law which the courts of the first state would apply. This is, we think, the true doctrine, and judged by it as the courts of New York would find, that the plaintiff had no case, we must hold likewise, however much we may prefer the law of Pennsylvania to that of New York on this particular subject as more consonant with the dictates of natural justice.
There are other phases of the question which might with profit be discussed, but we see no need to go into them further than the comment that the conclusion reached is in accord with the run of the adjudged cases which have been cited to us, among which are: Davis v. Mills, 194 U.S. 451, 24 S. Ct. 692, 48 L. Ed. 1067; Spokane & E.I.R. Co. v. Whitley, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060, L.R.A. 1915F, 736; Usher v. R.R., 126 Pa. 206, 17 A. 597, 4 L.R.A. 261, 12 Am. St. Rep. 863; Warren v. Furstenheim (C.C.) 35 F. 691, 1 L.R.A. 40; Martin v. Wabash R. Co. (C.C.A.) 142 F. 650, 6 Ann. Cas. 582; Whitten v. Bennett (C.C.) 77 F. 271, 272; Baltimore & O.R. Co. v. Joy, 173 U.S. 226, 19 S. Ct. 387, 43 L. Ed. 677; Martin v. B. & O., 151 U.S. 673, 14 S. Ct. 533, 38 L. Ed. 311; Dennick v. R.R., 103 U.S. 12, 26 L. Ed. 439.
We say this notwithstanding the truth that he cases are not uniform in the mode in which the doctrine is expressed. Many of the cases can be reconciled by the distinction before noted between procedural and substantive law. When the plaintiff in a pending suit dies, as in B. & O. v. Joy, the question of the survival of the action is determined by the lex fori because this is a procedural question, but that of whether a right of action in the sense of a cause of action exists when suit is brought is a question of substantive law to be determined by the lex loci.
It must be admitted that the case of Whitten v. Bennett cannot be so distinguished upon its facts, although the ruling would seem to be so based. As the ruling made is phrased, it is that the lex fori "determines the nature and extent of the remedy." This is in entire accord with the doctrine as we have formulated it. The disturbing thought is that the case arose in a state which gave a right of action but was tried in a state which did not, and the law of the latter was held to prevail. The appellate experience of this case may throw some light upon the quoted ruling. The appellate court took occasion to say that it was unnecessary to discuss it.
The question raised is determined in favor of the defendant. If the suggestion we have made is accepted by counsel, a jury may be empaneled at any time.
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