Appeals, Nos. 5, 6 and 7, March T., 1960, from judgment of Court of Common Pleas of Erie County, Feb. T., 1959, No. 395, in re estate of Helen P. Bednarowicz, by Gertrude G.Bednarowicz, trustee ad litem, et al. v. Joan B.Vetrone. Judgment affirmed.
Philip Werner Amram, of the Washington, D.C. Bar, with him John M. Wolford, for appellants.
A. Grant Walker, with him Gifford, Graham, MacDonald & Illig, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiffs brought an action in trespass for the death of one guest passenger and severe injuries to another guest passenger in an automobile driven by the defendant. Plaintiffs alleged in their amended complaint that defendant, driving at a speed of from 40 to 50 miles an hour, suddenly drove her automobile off the road and struck a culvert 84 feet north of where the vehicle left the road with such force that the vehicle turned end over end. Plaintiffs further alleged that defendant had the duty to operate the vehicle (a) with reasonable caution and care, and (b) within the confines of the highway. Plaintiffs also alleged that defendant's action in driving off the road "constituted negligence and gross or wanton negligence".
Plaintiffs and defendant were residents of Pennsylvania at the time of the accident; the accident occurred in Ontario, Canada. Defendant filed an answer in which she averred under new matter Section 50 of "The Highway Traffic Act" of the Province of Ontario. Section 50 provides that "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, shall not be liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in, or upon, or entering, or getting on to, or alighting from the motor vehicle."
Plaintiffs filed a reply admitting the averments in the new matter, but denied the relevancy of the law of Ontario. The lower Court in an able opinion made absolute defendant's rule to show cause on her "Motion for Judgment on the Pleadings" and entered judgment for defendant on the pleadings. From this judgment plaintiffs took this appeal.
In considering a judgment on the pleadings, it is Hornbook law that all the facts which are well pleaded
by the adversary, together with all reasonable inferences therefrom are admitted, but conclusions therefrom and averments of law are not admitted: Robinson v. Philadelphia, 400 Pa. 80, 161 A.2d 1; Fawcett v. Monongahela Railway Co., 391 Pa. 134, 137 A.2d 768.
The lower Court held that this case was controlled by the principle of lex loci delicti; the plaintiffs contend (principally) that lex loci fori governs. The pivotal question is which of these two principles applies? If the accident had occurred in Pennsylvania plaintiffs undoubtedly would have averred a valid cause of action. However, the accident occurred in the Province of Ontario and under the law of Ontario a guest passenger has no cause of action for damages resulting from the negligence or wanton negligence of the driver or owner of the automobile. This question of lex loci delicti or lex loci fori has been repeatedly ruled, adversely to plaintiffs, by this Court, which has held that lex loci delicti applies: Randall v. Stager, 355 Pa. 352, 354, 49 A.2d 689; Mackey v. Robertson, 328 Pa. 504, 506, 195 A. 870; Rodney v. Staman, 371 Pa. 1, 3, 89 A.2d 313; Julian v. Tornabene, 171 Pa. Superior Ct. 333, 90 A.2d 346; Maxson ...