Louisville & N. R. R. v. Whitlow's Admr.

.Opinion of the court by

JUDGE PAYNTER

— Affirming

While T. P. Whitlow was in the service of the appellant as brakeman on one of its trains he is alleged' to have been killed by gross and willful negligence of the servants and employes of the appellant in charge of the train. At the time of his death he was a resident of this State, and his father qualified as his personal representative in the Warren county court. That the personal representative had the( right to maintain the action, if the liability existed under the laws of Tennessee, can not be questioned. Bruce’s Adm’rs v. Railroad Co., 83 Ky., 174; (7 R., 159) Wintuska’s Adm’r v. Railroad Co. (14 R., 579), 20 S. W., 819. He seeks to recover by virtue of the statute of Tennessee authorizing a recovery when death results from the wrongful act, fault, or commission of another, and the law as settled in that State in the adtministration of the statute. It is a well-settled principle in all civilized countries, so far as we are aware, that in matters ex contractu the lex loci contractus governs the construction and the validity of the contract, and that the lex fori governs the remedy. This principle is so familiar it would be waste of time to cite elementary authorities or adjudged cases in support of it. As an amplification of the doctrine, it may not be inappropriate to quote from Scudder v. Bank, 91 U. S., 406, wherein it is said: “Matters bearing upon the execution, the interpretation, and the validity of the contract are determined by the law of the place where the contract is made. Matters connected with its performance are-regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought. A careful examination of the well-considered decisions of this country and of England will sustain these positions.” We can see no reason why the doctrine as established as to actions ex contractu may not be applied to actions ex delicto. There seem to be but few decisions on the question. In the case of Nonce v. Railroad Co., 33 Fed., 434, it was held that there is no distinction on the subject between actions ex contractu and ex delicto. Herrick v. Railway Co., 31 Minn., 11, 16 N. W., 413, was an action ex delicto, and the court held that the law of the place where the right was acquired or the liability incurred governs as to the right of action, while all that pertains merely to the remedy is con-, trolled by the law of the State where the action is brought, thus recognizing the principle as the same where the right of action is ex contractu or ex delicto. The question presented to the court is whether the Kentucky or Tennessee law as to contributory negligence applies. Under the Tennessee law, if the intestate was himself guilty of negligence that contributed to his injury and death, yet if the defendant was guilty of negligence which was the direct and proximate cause of the intestate’s injuries and death, then the plaintiff is entitled to recover, but the damages recoverable should be reduced or mitigated by reason of the intestate’s •contributory negligence. Under our law, if the intestate was guilty of such contributory negligence except for which his injuries and death would not have occurred, then there can be no recovery. Contributory negligence, under our rule, is never applied to the mitigation of damages. The question is whether the contributory negligence relates to the right or to the remedy. The right to plead a counterclaim or a set-off relates to the remedy. In Davis v. Morton, 5 Bush, 160, it was held that the defendant was allowed to plead a set-off to a note, although not allowed by the laws of Tennessee, where the note was executed. Under our system of pleading, counterclaims in certain cases are allowed. A counterclaim, under our system of pleading, is a cause of action against the plaintiff, or against him and another, which arises out of the contract or transaction stated in the petition. A set-off is a cause of action upon a contract, judgment, or award in favor of the defendant against plaintiff, or against him and another, and it can not be pleaded except in an action upon a contract, judgment or award. The defendant who pleads a counterclaim admits the contract or transaction, and seeks a recovery on his counterclaim growing out of it. The defendant who pleads a set-off admits his liability on the cause of action stated in the petition, but claims he is entitled to a credit by way of set-off. The plea of the. statute of limitations generally relates to the remedy. In pleading the statute of limitations, the defendant admits that the cause of action or liability existed, but says that the plaintiff has slept too long on his rights, and his right to recover is barred. This is a defense which arises after the liability is incurred. The existence of the right to plead a counterclaim, a set-off, or the statute of limitations does not show that the cause of action did not exist, but, on the contrary, admits its existence. When we say that a counterclaim or a set-off is a matter relating to the remedy, we mean that if they exist they may be relied upon as a defense to the action. Suppose, however, that, under the lex loci contractus, they did not exist, we could not say that, had the transaction occurred in the State, the liability therefor would have ’existed. Therefore they are available as defenses in this State. To do this would be to utterly disregard the lex loci. It would be creating a liability or cause of action when none existed: in the place where the transaction or contract took place. To make our meaning clear, suppose that the set-off pleaded was a note which was void under the laws of the place where executed, or for some cause did not impose any liability on the plaintiff; the court would not adjudge that it was binding on the payor because it would have been so had it been executed in this State.

From all the facts attending the injury, it must be determined whether the defendant has incurred a liability for damages and the extent of it. The law of Tennessee must govern in fixing the liability and the quantum of recovery. It would be strange to apply the law of Tennessee in determining the question of liability, and take the law of the forum to fix the measure of recovery. It would be stranger still for the court to hold that the law of Tennessee should govern in fixing the liability, then apply the law of Kentucky, which would prevent a recovery, although a recovery is authorized by the law of Tennessee. Tt would be in one breath declaring the Tennessee law should determine the liability, and in the next instant adjudging that Kentucky law shall determine the liability and defeat a recovery. Suppose that, under the laws of this State, contributory negligence was not available :n an action for the negligent killing of a human being, but in Tennessee it was. Could it be said, in an action brought in this jurisdiction for the negligent killing in Tennessee, that the law in that State allowing such a plea was not available as a defense because it related, not to the right of action, but to the remedy? It could not be said it pertained to the remedy. It would be a fact that would in part determine the question of liability or of the right of action. The conduct of the intestate is-part of the facts from which the liability of the defendant is fixed, and measures the relief to which the personal representative is entitled. Bruce’s Adm’r v. Railroad Co. was an action under the Tennessee statute. The court said: “We are of the opinion the action can not be maintained and recovery had in this State in the same manner, for the same cause, and to the same extent as if the action had been brought and prosecuted in the State of Tennessee, where the cause of action arose.” If contributory negligence is available to defeat a recovery in this case, then the plaintiff can not recover in the same manner and to the same extent as if the action had been brought in Tennessee. Railroad Co. v. Graham’s Adm’r, 98 Ky., 688 (17 R., 1229), 34 S. W., 229, was an action under the statute of Alabama for a negligent killing. The court held that the measure of damages, as determined by the decisions of the Alabama supreme court, should be applied in the case. The case of Johnson v. Railroad Co., 91 Iowa, 248, 55 N. W., 66, is cited by counsel for appellant to sustain his contention that Kentucky law of contributory negligence should prevail. The injury in that case occurred in Illinois, and the action was brought in Iowa. The doctrine of comparative negligence prevailed in Illinois, and the Iowa court refused to follow the rule. The court disposed of the question in a few lines as to whether the doctrine of comparative negligence which had been established by the decisions of the courts of Illinois should prevail in that case. Kinne, J., took no part in the decision. Robinson, J., expressed no opinion on the question, but said that it was not necessarily involved in a determination of’ tlm case. Knight v. Railroad Co., 108 Pa. St., 250, and Herrick v. Railroad Co., 31 Minn., 11, 16 N. W., 413, are cited.by the court to- sustain its conclusion. In neither of these cases cited was the same question involved which the Iowa court adjudged, nor was there a similar question involved in them. The question in Knight v. Railroad Co. presents the right to maintain an action against a foreign corporation to recover damages in an action eso delicto for negligence causing the death in another State. The court held that such an action could be maintained. The Pennsylvania court recognized the correctness of the doctrine of Herrick v. Railroad Co.; and the court in the latter case said: “Whenever, by either common law or statute, a right of action has become fixed and a legal liability incurred, that liability, if the action be ‘ transitory, may be enforced, and the right of action pursued, in the courts of any State which can obtain jurisdiction of the defendant, provided it is not against the public policy of the laws of the State where it is sought to be enforced. . . . The statute of another State has, of’ course, no extraterritorial force, but rights acquired under it will always, in comity, be enforced, if not against the public policy of the laws of the former. In such cases the law of the place where the right was acquired or the liability was incurred will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the State where the action is brought; and we think the principle is the same whether the right of action be ex contractu or ex delicto.” Of course, there is no question of public policy involved in the case, because we have a statute of the same general import of the statute of Tennessee. Dennick v. Railroad Co., 103 U. S., 11, was an action for injuries resulting in death, and the court held it was transitory. The court said: “It is difficult to understand how the nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is a statutory right or a common-law right. Wherever, by either the common law or statute law of a State, a right of action-has become fixed, and a legal liability incurred, that liability may be enforced, and the right of action pursued, in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties.” At the time the injury was inflicted the right of action became fixed, and a legal liability was incurred. The liability which the plaintiff seeks to enforce was incurred by virtue of the law of Tennessee. The law of contributory negligence, as adjudged in this State, can not be applied so a.s to alter or affect the right of action which arose in Tennessee. For these reasons the judgment is affirmed.