Winters v. Maxey

HUMPHREYS, Justice

(dissenting).

I respectfully dissent. Under the recognized exception to the lex loci delicti rule, that foreign laws contrary to the public policy of this State will not be enforced here, we should hold that the Alabama guest statute does not apply in Tennessee.

The majority opinion recognizes the public policy exception, citing Whitlow v. N., C. & St. L. Ry. Co., 114 Tenn. 344 , 84 S.W. 618 (1904), and makes use of the definition of public policy to be found therein. This definition is that a foreign law will not be enforced that is against good morals or natural justice, or that for some other reason, the enforcement of it, would be prejudicial to the general interest of the citizens of the State. Hardly pausing for a breath, the majority opinion proceeds to declare that the Alabama guest statute is not against good morals, is not against natural justice, and that its enforcement would not be prejudicial to the general interest of the citizens of the State. With this conclusion I must disagree.

I disagree, because both good morals and natural justice demand that one who carelessly injures another in the operation of a motor vehicle, which, while not a dangerous instrumentality by legal definition, is in its operation fraught with such danger that the operator who fails to exercise ordinary care, should be required to respond in damages.

While I recognize the right of Alabama to treat -its own citizens in the way it has, I do not think this state is obligated to enforce such a statute in an action between two of its citizens who were only casually and incidentally in Alabama, under circumstances that do not indicate they even knew of the guest statute, much less intended to be bound thereby. And this is particularly true since Alabama has no interest whatsoever in the enforcement of its regressive law in Tennessee.

Not only is this against natural justice and good morals, it is contrary to the express public policy of this State. The General Assembly has had before it the example of a few other states in limiting automobile host liability to wilful or wanton negligence, and, (unless my memory dis-serves me, there is no index or digest where I can look this up), bills have been introduced in the General Assembly in the past to enact this guest rule into law in this State. But, whether I am right in my recollection or not, the proposition remains that with the example of other states, and with the power to enact such a law, the General Assembly has not done so. This non-action amounts to an election by it to continue under the better rule of liability. *760 And anything that is contrary to that rule, I submit, is contrary to the public policy of this State.

In sum, we should hold that the Alabama law limiting liability is contrary to the better Tennessee law on the subject and will not be enforced by our courts as against the public policy of this State.

I know that a great deal has been written in a number of opinions in other states on the conflict of law question which has arisen in this case. And I find that a general conflict of law principle thereon has been stated in Restatement, Conflict of Laws, § 145, as follows:

Ҥ 145. The General Principle

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include :

(a) the place where the injury occurred

(b) the place where the conduct causing the injury occurred

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.”

There is also an interesting discussion of this subject in 21 Vanderbilt Law Review, March 1968, at p. 266; and an annotation in 29 A.L.R. 3d, p. 603. And, while I think the adoption of a general rule such as that in Restatement is inevitable as our society grows more mobile and the interest of the State in its citizens ever increases, I am content, for the present, to base my disagreement with the majority on its failure to recognize that the Alabama guest statute is contrary to justice, is contrary to good morals, and is contrary to the policy of this State as that policy is exemplified by the longstanding law of this State which permits a passenger who is injured in an automobile collision to recover of his host where he has not exercised ordinary care. Such a law as Alabama’s should not be enforced between two Tennesseans and I dissent from its enforcement.