Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from an order of the District Court refusing to take off a compulsory nonsuit.
The plaintiff, Louise Chase, a resident of St. Louis, was, on October 17, 1925, temporarily residing in New York City in an apartment house which belonged to Frank G. Ormsby, who was then living at Easton, Pa., and was a resident and citizen of that commonwealth and remained so until his death.
On the morning of October 17, 1925, the plaintiff and her mother entered the elevator of the apartment house and the elevator suddenly fell from the fifth floor to the basement. Her mother was killed and the plaintiff was seriously injured.She spent about a year and a half in hospitals. For six months she was in a plaster cast. One limb was so badly injured that it had to be amputated and the other was ruined for life.
This suit was brought in the Eastern District of Pennsylvania, where Ormsby resided, against the executors of his estate, to recover damages for the injuries which the plaintiff received in the fall of the elevator, which she alleges was due to the negligence of their testator.
The injuries were received on October 17, 1925. Ormsby died in Easton on June 14, 1926, and suit was brought against his executors in the Eastern District of Pennsylvania on March 17, 1927, within two years after the accident. An affidavit of defense was filed in which it was averred that the death of Ormsby abated the action under the law of New York and that the suit could not be brought and maintained against his executors in Pennsylvania. A question was thus raised under the Pennsylvania pleading in the nature of a demurrer. In Pennsylvania a suit may be brought under the statute against the executors of a tort-feasor's estate. A stipulation was entered into by counsel whereby they submitted to the court the question of the right of plaintiff to maintain her action in Pennsylvania. The court in an opinion (3 F. Supp. 680) indicated that the action could not be maintained but said that the question had not been properly raised and suggested that the case be tried to the court and jury. Subsequently a jury was called for the trial of the case and at the trial the plaintiff offered to prove the above facts, but the court sustained an objection to the offer and entered a compulsory nonsuit which it refused to take off and thereupon the plaintiff appealed.
Passing by minor contentions in the case, the real question is whether or not the cause of action under the above facts survived in Pennsylvania and could be prosecuted against the executors of Ormsby's estate.
The general rule of law declared in both text-books and decisions is that substantive rights are determined by the law of the place where the tort was committed, the lex loci delicti commissi, but remedial rights, the rules regulating the machinery by which substantive rights are established, are determined by the law of the place where those rights are sought to be enforced, the lex fori. Treatise on Conflict of Laws by Beale, p. 165; Goodrich on Conflict of Laws, p. 158; Slater v. Mexican National R.R., 194 U.S. 121, 126, 24 S. Ct. 581, 48 L. Ed. 900; Davis v. Mills, 194 U.S. 451, 24 S. Ct. 692, 48 L. Ed. 1067; Spokane, etc., R.R. v. Whitley, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060, L.R.A. 1915F, 736.
The allegations of negligence in the complaint are assumed to be true.
When the elevator fell and the plaintiff was negligently injured a cause of action arose. This invested the plaintiff wity a property right and gave her the right to sue and at the same time it subjected the tortfeasor to the liability of being sued. The state of New York could not confine the cause of action within its own borders nor prescribe the court in which the right should be enforced, nor define the procedure therefor. Tennessee Coal, Iron & Railroad Co. v. George, 233 U.S. 354, 34 S. Ct. 587, 58 L. Ed. 997, L.R.A. 1916D, 685. The action was transitory, and wherever Ormsby went, this liability went with him and attached to him personally until the moment of his death.
When Ormsby died, did the cause of action die with him, or did it survive and the liability to be sued pass over to his executors?
This question depends upon whether it is to be determined by the laws of the state of New York, where the tort was committed, or by the laws of the state of Pennsylvania, where Ormsby lived and died and where suit was brought. In New York, the death of Ormsby abated the action, but in Pennsylvania it survived. The Act of March 30, 1921, P.L. 255, § 1, amending P.L. 1917, p. 447, § 35 (b), 20 PS § 772, provides that: "Executors * * * shall be liable to be sued, either alone or jointly with other defendants, in any such action, except as aforesaid, which might have ...