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Court of Appeal, Second District, Division 1, California.

Lee REICH, Individually and as Administrator of the Estates of Barbara Ann Reich and Jay Lee Reich, deceased, and Jeffrey Ray Reich, a minor, by Lee Reich, his guardian ad litem, Plaintiffs and Appellants, v. Joseph PURCELL, Defendant and Respondent.

Civ. 30414.

Decided: April 18, 1967

Irell & Manella, Charles H. Phillips, Richard H. Borow and J. Gordon Hansen, Los Angeles, for appellants. John R. Allport, Los Angeles, for respondent.

In this wrongful death action resulting from an automobile accident in Missouri, plaintiffs appeal from that portion of the judgment, made and entered on stipulated facts, which fixed the amount of recovery in the sum of $25,000, the maximum permitted under Missouri law.1  The sole question for determination is whether the right to recovery in negligence actions is still governed by the lex loci (Missouri) and not by the lex fori (California).   In 1932 it was so held by a unanimous court in Loranger v. Nadeau, 215 Cal. 362, 10 P.2d 63, 84 A.L.R. 1264, the decision declaring that “It is the settled law in the United States that an action in tort is governed by the law of the jurisdiction where the tort was committed, and, as it is a transitory action, it may be maintained in any jurisdiction where the defendant may be found.”   (P. 366, 10 P.2d p. 65.)   At the time of the accident here involved, defendant Purcell was a resident of California and had been such for many years prior thereto;  plaintiffs-survivors of the accident, then residents of Ohio (as were the non-survivors), have since established residence in this state.   In 1958 the rule above quoted was followed in Victor v. Sperry, 163 Cal.App.2d 518, 329 P.2d 728, arising out of an automobile accident in Mexico and involving parties all of whom were California residents;  limitations imposed by Mexican law on the recovery of damages were held enforceable by the trial court, and the appellate court agreed.   A petition for hearing was thereafter denied by the Supreme Court.   Still later (in 1965) in Marquis v. St. Louis–San Francisco Ry. Co., 234 Cal.App.2d 335, 44 Cal.Rptr. 367, it was observed (albeit by way of dictum but citing Victor) that “the preponderance of authority recognizes the rule that in negligence actions the law of the place of accident governs a suit brought in another jurisdiction as to the substantive aspects of the case” (p. 341, 44 Cal.Rptr. p. 370) although procedural matters arising in the trial are controlled by the law of the forum.   To the same general effect is Wilson v. Lockheed Aircraft Corp., 210 Cal.App.2d 451, 26 Cal.Rptr. 626, decided during the interval between the Victor and Marquis cases.

Citing recent decisions in other jurisdictions, several law writers, the tentative draft of Restatement of Conflicts of Law, 2d Edition (which assertedly is at variance with the Restatement's original position on the problem here) and certain textual authorities, plaintiffs contend that the once firmly established lex loci rule has gradually eroded to the point where it is no longer the law—at least in jurisdictions other than ours.   The rule of the decisions and other authorities relied on is rested upon the proposition that in personal injury and wrongful death actions the local law of the state where the injury occurred determines the rights and liabilities of the parties unless some other state has a more significant relationship with the occurrence and the parties, or as plaintiffs put it, a greater governmental interest in the resolution of the problem, in which event the law of the latter state will govern.   As for California, it is argued that the rule of lex loci has been impliedly overruled by our Supreme Court in Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162, Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218, and Bernkrant v. Fowler, 55 Cal.2d 588, 12 Cal.Rptr. 266, 360 P.2d 906.   In all three cases, according to plaintiffs, the court had to choose between the law of California and that of another state;  it chose the former because California had a greater governmental interest in the issue to be resolved.2  Although none was a strict negligence case, as is ours, plaintiffs nevertheless assert that each applied the correct conflict of law rule which likewise should be applied in non-contract cases.

 The above argument, extensively and ably presented, accords recognition to the fact that both Loranger and Victor must be disapproved if it is to prevail in this proceeding.   As for the first of the above cases, we are bound as an intermediate appellate court by the rule there followed (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937);  with respect to Victor, the denial of a hearing by the Supreme Court similarly binds us if the same arguments were there presented and presumably found unconvincing.  (Barry v. Dept. of Public Works, 199 Cal.App.2d 359, 360, 18 Cal.Rptr. 637.)   As shown above, Victor is factually on all fours with our case as distinguished from Loranger which did not deal with damages but applied Oklahoma law to a guest statute problem where all the parties involved were California residents.   The latter decision does, however, promulgate a principle of law which is quoted in Victor and upon which that case turned in substantial part:  “It is the general rule in tort actions that the court will, if it has jurisdiction of the necessary parties and can do substantial justice between them in accordance with its own forms of procedure, enforce the foreign law, if it is not contrary to the public policy of the forum, to abstract justice, or pure morals, or injurious to the welfare of the people of the state of the forum.”  (Supra, 215 Cal. 362, 366, 10 P.2d 63, 65.)   Adopting this approach to the problem, reinforced by a similar view found in Grant v. McAuliffe, supra,3 the Victor court concluded that under the facts there presented “The limitation upon the amount of damages imposed by the laws of Mexico is not contrary to the public policy of the State of California or injurious to the welfare of the people thereof.”  (Supra, 163 Cal.App.2d 518, 524, 329 P.2d 728, 732.)

Plaintiffs call attention to the fact that Loranger is in accord with the original Restatement's position which has since given way to the innovations suggested by its successor, referred to as “Restatement II.”   As for Victor, they contend that such decision is not binding upon this court because, among other things, the so-called “doctrine of governmental interests” was not directly presented to the appellate court for its consideration.   As noted above, however, the subject case concluded that the limitations of the Mexican law were “not contrary to the public policy of the State of California or injurious to the welfare of the people thereof.”   It so determined notwithstanding the citation by appellant of a Minnesota case, Schmidt v. Driscoll Hotel, 249 Minn. 376, 82 N.W.2d 365, which decision likewise is cited by plaintiffs with the assertion that it “amounts to a governmental interests approach to choice of law problems well in advance of the recent ‘revolution’ ”  (A.O.B. pp. 48–49);  also cited by appellant Victor is an article (56 Yale L.J. 1155, 1161) which states in pertinent part that “When two or more communities are touched or affected by a factual sequence, the nexus should be considered with a view to the respective interests of the societies affected by the particular fact situation * * *.”   Finally, in his petition for hearing by the Supreme Court appellant Victor renewed the argument made to the District Court of Appeal that the award of damages, if limited by the Mexican law, would quickly be exhausted and resort by the victim to local welfare authorities of California for aid and assistance thereafter made necessary.   In our opinion, such argument clearly invokes a “governmental interest” solution of the problem although it is not stated in so many words;  certainly it points up the fact that California has a more significant relationship with the parties than the other state (Mexico) and that, incidentally, is the view of Restatement of Conflicts of Law, 2d Edition.4

 Recapitulating, substantially the same contention was unavailingly made in Victor as is made here even though all of the parties (unlike the Reich family) were California residents at the time of the accident, thus giving California an even more significant relationship with the litigants than is found at bar.5  A hearing in Victor having been denied, regardless of our own feelings the judgment therein stands “as a decision of a court of last resort in this state, until and unless disapproved by [the Supreme Court] or until change of the law by legislative action.”   (Cole v. Rush, 45 Cal.2d 345, 351, 289 P.2d 450, 453, 54 A.L.R.2d 1137.)

Nor do we believe, as claimed by plaintiffs, that both Victor and Loranger have been impliedly overruled by Grant, Emery and Bernkrant.   In the first of such cases it was held that survival of tort liability was a matter of procedure (governed by the law of the forum) and not one of substantive law:  “In actions on torts occurring abroad, the courts of this state determine the substantive matters inherent in the cause of action by adopting as their own the law of the place where the tortious acts occurred, unless it is contrary to the public policy of this state.  [Citing Loranger.] * * * But the forum does not adopt as its own the procedural law of the place where the tortious acts occur.”  (Supra, 41 Cal.2d 859, 862, 264 P.2d 944, 946.)   In reaching the result it did, the court noted that survival “is not an essential part of the cause of action itself but relates to the procedures available for the enforcement of the legal claim for damages” (p. 866, 264 P.2d 944);  Victor, on the other hand, expressly holds that “The measure of damages is inseparably connected to the cause of action and cannot be severed therefrom.”  (Supra, 163 Cal.App.2d 518, 524, 329 P.2d 728, 732.)   Emery, as mentioned earlier, was concerned with the immunity of members of a family from tort liability, the court stating that the problem there was “not * * * a question of tort but one of capacity to sue and be sued and as to that question the place of injury is both fortuitous and irrelevant.”  (Supra, 45 Cal.2d 421, 427, 289 P.2d 218, 222.)   We cannot question the right of plaintiffs here to sue defendant Purcell in California, nor do we suggest that they can be charged with “forum shopping”;  once that forum is selected, however, they must take the substantive law here governing with the Missouri limitations thereto accorded enforceability.   As for Bernkrant, plaintiffs concede that the problem there was solved strictly on the basis of a governmental interests approach;  as stated above, that approach was rejected by the Victor court on a stronger showing than can here be made.

 Finally, and in the alternative, we are asked by plaintiffs to reject precedential authority since slavish adherence to stare decisis would perpetuate an outmoded rule.   They quote from In re Lane, 58 Cal.2d 99, 105, 22 Cal.Rptr. 857, 372 P.2d 897, wherein reference is made to Sei Fujii v. State of California, 38 Cal.2d 718, 242 P.2d 617, holding that “the authority dissipated by a later trend of decision as by a statement expressly overruling it.”  (P. 728, 242 P.2d p. 624.)   Obedient to the mandate of Cole v. Rush, supra, 45 Cal.2d 345, 351, 289 P.2d 450, if such trend has been established and is here applicable, such disapproval should be forthcoming from the court responsible for such asserted trend.

The portion of the judgment appealed from is affirmed.


1.   Remaining counts of the complaint related to personal injuries (as well as property damage) sustained by certain plaintiffs.   Portions of the judgment, from which no appeal has been taken, made provision for the recovery of damages therein sought.

2.   In Grant, where the accident occurred in Arizona and involved California residents, the court allowed survival of the action against the estate of one who had died in the accident although Arizona did not provide for such survival.   In Emery, the accident took place in Idaho and California residents were involved;  the question arose as to whether several children could sue their father and brother, and the court applied California law to the problem.   Bernkrant dealt with the applicability of the statute of frauds in an estate contract action;  the court chose the California and not the Nevada statute.

3.   Also relied on is this observation of Justice Holmes in Slater v. Mexican National R. Co., 194 U.S. 120, 24 S.Ct. 581, 583, 48 L.Ed. 900:  “It seems to us unjust to allow a plaintiff to come here absolutely depending on the foreign law for the foundation of his case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose.”   Plaintiffs properly point out, however, that Slater has been “undermined” by subsequent Supreme Court cases.

4.   “§ 391.  Right of Action for Death.   In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particular issue involved, in which event the local law of the latter state will govern.”

5.   It further appears that the estates of the two non-survivors are being administered in Ohio.

LILLIE, Associate Justice.

WOOD, P.J., and FOURT, J., concur.