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Republic of the Philippines Code of California.

Gibbs presented this decree to the register of deeds of Manila and


SUPREME COURT demanded that the latter issue to him a "transfer certificate of title".
Manila
Section 1547 of Article XI of Chapter 40 of the Administrative Code provides in part that:
EN BANC
Registers of deeds shall not register in the registry of property any document
G.R. No. L-35694 December 23, 1933 transferring real property or real rights therein or any chattel mortgage, by way of
gifts mortis causa, legacy or inheritance, unless the payment of the tax fixed in this
ALLISON G. GIBBS, petitioner-appelle, article and actually due thereon shall be shown. And they shall immediately notify
vs. the Collector of Internal Revenue or the corresponding provincial treasurer of the
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, oppositor-appellant. non payment of the tax discovered by them. . . .
THE REGISTER OF DEEDS OF THE CITY OF MANILA, respondent-appellant.
Acting upon the authority of said section, the register of deeds of the City of Manila, declined
Office of the Solicitor-General Hilado for appellants. to accept as binding said decree of court of September 22,1930, and refused to register the
Allison D. Gibbs in his own behalf. transfer of title of the said conjugal property to Allison D. Gibbs, on the ground that the
corresponding inheritance tax had not been paid. Thereupon, under date of December 26,
1930, Allison D. Gibbs filed in the said court a petition for an order requiring the said register
of deeds "to issue the corresponding titles" to the petitioner without requiring previous
payment of any inheritance tax. After due hearing of the parties, the court reaffirmed said
BUTTE, J.: order of September 22, 1930, and entered the order of March 10, 1931, which is under review
on this appeal.
This is an appeal from a final order of the Court of First Instance of Manila, requiring the
register of deeds of the City of Manila to cancel certificates of title Nos. 20880, 28336 and On January 3, 1933, this court remanded the case to the court of origin for new trial upon
28331, covering lands located in the City of Manila, Philippine Islands, and issue in lieu additional evidence in regard to the pertinent law of California in force at the time of the death
thereof new certificates of transfer of title in favor of Allison D. Gibbs without requiring him of Mrs. Gibbs, also authorizing the introduction of evidence with reference to the dates of the
to present any document showing that the succession tax due under Article XI of Chapter 40 acquisition of the property involved in this suit and with reference to the California law in
of the Administrative Code has been paid. force at the time of such acquisition. The case is now before us with the supplementary
evidence.
The said order of the court of March 10, 1931, recites that the parcels of land covered by said
certificates of title formerly belonged to the conjugal partnership of Allison D. Gibbs and Eva For the purposes of this case, we shall consider the following facts as established by the
Johnson Gibbs; that the latter died intestate in Palo Alto, California, on November 28, 1929; evidence or the admissions of the parties: Allison D. Gibbs has been continuously, since the
that at the time of her death she and her husband were citizens of the State of California and year 1902, a citizen of the State of California and domiciled therein; that he and Eva Johnson
domiciled therein. Gibbs were married at Columbus, Ohio, in July 1906; that there was no antenuptial marriage
contract between the parties; that during the existence of said marriage the spouses acquired
It appears further from said order that Allison D. Gibbs was appointed administrator of the the following lands, among others, in the Philippine Islands, as conjugal property:lawphil.net
state of his said deceased wife in case No. 36795 in the same court, entitled "In the Matter of
the Intestate Estate of Eva Johnson Gibbs, Deceased"; that in said intestate proceedings, the 1. A parcel of land in the City of Manila represented by transfer certificate of title No. 20880,
said Allison D. Gibbs, on September 22,1930, filed an ex parte petition in which he alleged dated March 16, 1920, and registered in the name of "Allison D. Gibbs casado con Eva
"that the parcels of land hereunder described belong to the conjugal partnership of your Johnson Gibbs".
petitioner and his wife, Eva Johnson Gibbs", describing in detail the three facts here involved;
and further alleging that his said wife, a citizen and resident of California, died on November 2. A parcel of land in the City of Manila, represented by transfer certificate of title No. 28336,
28,1929; that in accordance with the law of California, the community property of spouses dated May 14, 1927, in which it is certified "that spouses Allison D. Gibbs and Eva Johnson
who are citizens of California, upon the death of the wife previous to that of the husband, Gibbs are the owners in fee simple" of the land therein described.
belongs absolutely to the surviving husband without administration; that the conjugal
partnership of Allison D. Gibbs and Eva Johnson Gibbs, deceased, has no obligations or debts
and no one will be prejudiced by adjucating said parcels of land (and seventeen others not here 3. A parcel of land in the City of Manila, represented by transfer certificate of title No. 28331,
involved) to be the absolute property of the said Allison D. Gibbs as sole owner. The court dated April 6, 1927, which it states "that Allison D. Gibbs married to Eva Johnson Gibbs" is
granted said petition and on September 22, 1930, entered a decree adjucating the said Allison the owner of the land described therein; that said Eva Johnson Gibbs died intestate on
D. Gibbs to be the sole and absolute owner of said lands, applying section 1401 of the Civil November 28, 1929, living surviving her her husband, the appellee, and two sons, Allison J.
Gibbs , now age 25 and Finley J. Gibbs, now aged 22, as her sole heirs of law.
Article XI of Chapter 40 of the Administrative Code entitled "Tax on inheritances, legacies In construing the above language we are met at the outset with some difficulty by the
and other acquisitionsmortis causa" provides in section 1536 that "Every transmission by expression "the national law of the person whose succession is in question", by reason of the
virtue of inheritance ... of real property ... shall be subject to the following tax." It results that rather anomalous political status of the Philippine Islands. (Cf. Manresa, vol. 1, Codigo Civil,
the question for determination in this case is as follows: Was Eva Johnson Gibbs at the time of pp. 103, 104.) We encountered no difficulty in applying article 10 in the case of a citizen of
her death the owner of a descendible interest in the Philippine lands above-mentioned? Turkey. (Miciano vs. Brimo, 50 Phil., 867.) Having regard to the practical autonomy of the
Philippine Islands, as above stated, we have concluded that if article 10 is applicable and the
The appellee contends that the law of California should determine the nature and extent of the estate in question is that of a deceased American citizen, the succession shall be regulated in
title, if any, that vested in Eva Johnson Gibbs under the three certificates of title Nos. 20880, accordance with the norms of the State of his domicile in the United States. (Cf. Babcock
28336 and 28331 above referred to, citing article 9 of the Civil Code. But that, even if the Templeton vs. Rider Babcock, 52 Phil., 130, 137; In re Estate of Johnson, 39 Phil., 156, 166.)
nature and extent of her title under said certificates be governed by the law of the Philippine
Islands, the laws of California govern the succession to such title, citing the second paragraph The trial court found that under the law of California, upon the death of the wife, the entire
of article 10 of the Civil Code. community property without administration belongs to the surviving husband; that he is the
absolute owner of all the community property from the moment of the death of his wife, not
Article 9 of the Civil Code is as follows: by virtue of succession or by virtue of her death, but by virtue of the fact that when the death
of the wife precedes that of the husband he acquires the community property, not as an heir or
as the beneficiary of his deceased wife, but because she never had more than an inchoate
The laws relating to family rights and duties, or to the status, condition, and legal interest or expentancy which is extinguished upon her death. Quoting the case of Estate of
capacity of persons, are binding upon Spaniards even though they reside in a foreign Klumpke (167 Cal., 415, 419), the court said: "The decisions under this section (1401 Civil
country." It is argued that the conjugal right of the California wife in community real Code of California) are uniform to the effect that the husband does not take the community
estate in the Philippine Islands is a personal right and must, therefore, be settled by property upon the death of the wife by succession, but that he holds it all from the moment of
the law governing her personal status, that is, the law of California. But our attention her death as though required by himself. ... It never belonged to the estate of the deceased
has not been called to any law of California that incapacitates a married woman wife."
from acquiring or holding land in a foreign jurisdiction in accordance with the lex
rei sitae. There is not the slightest doubt that a California married woman can
acquire title to land in a common law jurisdiction like the State of Illinois or the The argument of the appellee apparently leads to this dilemma: If he takes nothing by
District of Columbia, subject to the common-law estate by the courtesy which would succession from his deceased wife, how can the second paragraph of article 10 be invoked?
vest in her husband. Nor is there any doubt that if a California husband acquired Can the appellee be heard to say that there is a legal succession under the law of the Philippine
land in such a jurisdiction his wife would be vested with the common law right of Islands and no legal succession under the law of California? It seems clear that the second
dower, the prerequisite conditions obtaining. Article 9 of the Civil Code treats of paragraph of article 10 applies only when a legal or testamentary succession has taken place in
purely personal relations and status and capacity for juristic acts, the rules relating to the Philippines and in accordance with the law of the Philippine Islands; and the foreign law is
property, both personal and real, being governed by article 10 of the Civil Code. consulted only in regard to the order of succession or the extent of the successional rights; in
Furthermore, article 9, by its very terms, is applicable only to "Spaniards" (now, by other words, the second paragraph of article 10 can be invoked only when the deceased was
construction, to citizens of the Philippine Islands). vested with a descendible interest in property within the jurisdiction of the Philippine Islands.

The Organic Act of the Philippine Islands (Act of Congress, August 29, 1916, In the case of Clarke vs. Clarke (178 U. S., 186, 191; 44 Law ed., 1028, 1031), the court said:
known as the "Jones Law") as regards the determination of private rights, grants
practical autonomy to the Government of the Philippine Islands. This Government, It is principle firmly established that to the law of the state in which the land is
therefore, may apply the principles and rules of private international law (conflicts situated we must look for the rules which govern its descent, alienation, and transfer,
of laws) on the same footing as an organized territory or state of the United States. and for the effect and construction of wills and other conveyances. (United States vs.
We should, therefore, resort to the law of California, the nationality and domicile of Crosby, 7 Cranch, 115; 3 L. ed., 287; Clark vs. Graham, 6 Wheat., 577; 5 L. ed.,
Mrs. Gibbs, to ascertain the norm which would be applied here as law were there 334; McGoon vs. Scales, 9 Wall., 23; 19 L. ed., 545; Brine vs. Hartford F. Ins. Co.,
any question as to her status. 96 U. S., 627; 24 L. ed., 858.)" (See also Estate of Lloyd, 175 Cal., 704, 705.) This
fundamental principle is stated in the first paragraph of article 10 of our Civil Code
But the appellant's chief argument and the sole basis of the lower court's decision rests upon as follows: "Personal property is subject to the laws of the nation of the owner
the second paragraph of article 10 of the Civil Code which is as follows: thereof; real property to the laws of the country in which it is situated.

Nevertheless, legal and testamentary successions, in respect to the order of It is stated in 5 Cal. Jur., 478:
succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person In accord with the rule that real property is subject to the lex rei sitae, the respective
whose succession is in question, whatever may be the nature of the property or the rights of husband and wife in such property, in the absence of an antenuptial
country in which it may be situated. contract, are determined by the law of the place where the property is situated,
irrespective of the domicile of the parties or to the place where the marriage was levy an inheritance tax or the validity of the statute under which the register of deeds refused
celebrated. (See also Saul vs. His Creditors, 5 Martin [N. S.], 569; 16 Am. Dec., 212 to issue a certificate of transfer reciting that the appellee is the exclusive owner of the
[La.]; Heidenheimer vs. Loring, 26 S. W., 99 [Texas].) Philippine lands included in the three certificates of title here involved.

Under this broad principle, the nature and extent of the title which vested in Mrs. Gibbs at the The judgment of the court below of March 10, 1931, is reversed with directions to dismiss the
time of the acquisition of the community lands here in question must be determined in petition, without special pronouncement as to the costs.
accordance with the lex rei sitae.

It is admitted that the Philippine lands here in question were acquired as community property
of the conjugal partnership of the appellee and his wife. Under the law of the Philippine
Islands, she was vested of a title equal to that of her husband. Article 1407 of the Civil Code
provides:

All the property of the spouses shall be deemed partnership property in the absence
of proof that it belongs exclusively to the husband or to the wife. Article 1395
provides:

"The conjugal partnership shall be governed by the rules of law applicable to the contract of
partnership in all matters in which such rules do not conflict with the express provisions of this
chapter." Article 1414 provides that "the husband may dispose by will of his half only of the
property of the conjugal partnership." Article 1426 provides that upon dissolution of the
conjugal partnership and after inventory and liquidation, "the net remainder of the partnership
property shall be divided share and share alike between the husband and wife, or their
respective heirs." Under the provisions of the Civil Code and the jurisprudence prevailing
here, the wife, upon the acquisition of any conjugal property, becomes immediately vested
with an interest and title therein equal to that of her husband, subject to the power of
management and disposition which the law vests in the husband. Immediately upon her death,
if there are no obligations of the decedent, as is true in the present case, her share in the
conjugal property is transmitted to her heirs by succession. (Articles 657, 659, 661, Civil
Code; cf. alsoCoronel vs. Ona, 33 Phil., 456, 469.)

It results that the wife of the appellee was, by the law of the Philippine Islands, vested of a
descendible interest, equal to that of her husband, in the Philippine lands covered by
certificates of title Nos. 20880, 28336 and 28331, from the date of their acquisition to the date
of her death. That appellee himself believed that his wife was vested of such a title and interest
in manifest from the second of said certificates, No. 28336, dated May 14, 1927, introduced by
him in evidence, in which it is certified that "the spouses Allison D. Gibbs and Eva Johnson
Gibbs are the owners in fee simple of the conjugal lands therein described."

The descendible interest of Eva Johnson Gibbs in the lands aforesaid was transmitted to her
heirs by virtue of inheritance and this transmission plainly falls within the language of section
1536 of Article XI of Chapter 40 of the Administrative Code which levies a tax on
inheritances. (Cf. Re Estate of Majot, 199 N. Y., 29; 92 N. E., 402; 29 L. R. A. [N. S.], 780.) It
is unnecessary in this proceeding to determine the "order of succession" or the "extent of the
successional rights" (article 10, Civil Code, supra) which would be regulated by section 1386
of the Civil Code of California which was in effect at the time of the death of Mrs. Gibbs.

The record does not show what the proper amount of the inheritance tax in this case would be
nor that the appellee (petitioner below) in any way challenged the power of the Government to
Grant v. McAuliffe , 41 Cal.2d 859 573, 574.) Defendant contends, however, that the survival of a cause of action is a matter of
[Sac. No. 6416. In Bank. Dec. 23, 1953.] substantive law, and that the courts of this state must apply the law of Arizona governing
WILLIAM R. GRANT, Appellant, v. FRANK H. McAULIFFE, as Administrator, etc., survival of causes of action. There is no provision for survival of causes of action in the
Respondent. statutes of Arizona, although there is a provision that in the event of the death of a party to a
[Sac. No. 6417. In Bank. Dec. 23, 1953] pending proceeding his personal representative can be substituted as a party to the action
RUSSELL M. MANCHESTER, Appellant, v. FRANK H. McAULIFFE, as Administrator, (Arizona Code, 1939, 21-534), if the cause of action survives. (Arizona Code, 1939, 21-
etc., Respondent. 530.) The Supreme Court of Arizona has held that if a tort action has not been commenced
[Sac. No. 6418. In Bank. Dec. 23, 1953.] before the death of the tort feasor a plea in abatement must be sustained. (McClure v. Johnson,
DOYLE O. JENSEN, Appellant, v. FRANK H. McAULIFFE, as Administrator, etc., 50 Ariz. 76, 82 [69 P.2d 573]. See, also, McLellan v. Automobile Ins. Co. of Hartford,
Respondent. Conn., 80 F.2d 344.)
COUNSEL [1] Thus, the answer to the question whether the causes of action against Pullen survived and
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein and Goldstein, Barceloux & are maintainable against his estate depends on whether Arizona or California law applies. In
Goldstein for Appellants. actions on torts occurring abroad, the courts of this state determine the substantive matters
Honey & Mayall and John J. Hurley for Respondent. inherent in the cause of action by adopting as their own the law of the place where the tortious
OPINION acts occurred, unless it is contrary to the public policy of this state. (Loranger v. Nadeau, 215
TRAYNOR, J. Cal. 362 [10 P.2d 63, 84 A.L.R. 1264].) [2] "[N]o court can enforce any law but that of its
On December 17, 1949, plaintiffs W. R. Grant and R. M. Manchester were riding west on own sovereign, and, when a suitor comes to a jurisdiction foreign to the place of the tort, he
United States Highway 66 in an automobile owned and driven by plaintiff D. O. Jensen. can only invoke an obligation recognized by that sovereign. A foreign sovereign under
Defendant's decedent, W. W. Pullen, was driving his automobile east on the same highway. civilized law imposes an obligation of its own as nearly homologous as possible to that arising
The two automobiles collided at a point approximately 15 miles east of Flagstaff, Arizona. in the place where the tort occurs." (Learned Hand, J., in Guinness v. Miller, 291 F. 769, 770.)
Jensen's automobile was badly damaged, and Jensen, Grant, and Manchester suffered personal [3] But the forum does not adopt as its own the procedural law of the place where the tortious
injuries. Nineteen days later, on January 5, 1950, Pullen died as a result of injuries received in acts occur. It must, therefore, be determined whether survival of causes of action is procedural
the collision. Defendant McAuliffe was appointed administrator of his estate and letters or substantive for conflict of laws purposes. [41 Cal.2d 863]
testamentary were issued by the Superior Court of Plumas County. All three plaintiffs, as well This question is one of first impression in this state. The precedents in other jurisdictions are
as Pullen, were residents of California at the time of the collision. After the appointment of conflicting. In many cases it has been held that the survival of a cause of action is a matter of
defendant, each plaintiff presented his claim for damages. Defendant rejected all three claims, substance and that the law of the place where the tortious acts occurred must be applied to
and on December 14, 1950, each plaintiff filed an action against the estate of Pullen to recover determine the question. (Burg v. Knox, 334 Mo. 329, 335-338 [67 S.W.2d 96]; Chubbuck v.
damages for the injuries caused by the alleged negligence of the decedent. Defendant filed a Holloway, 182 Minn. 225, 227-230 [234 N.W. 314, 868], followed in Kerston v. Johnson, 185
general demurrer and a motion to abate each of the complaints. The trial court entered an order Minn. 591, 593 [242 N.W. 329]; Davis v. New York & N.E. R. Co., 143 Mass. 301, 305-306
granting the motion in each case. Each plaintiff has appealed. The appeals are [41 Cal.2d 862] [9 N.E. 815]; Hyde v. Wabash, St. L. & Pac. Ry. Co., 61 Iowa 441, 444 [16 N.W. 351, 47
based on the same ground and have therefore been consolidated. Am.St.Rep. 820] [but see Gordon v. Chicago, R. I. & P. Ry. Co., 154 Iowa 449, 451 [134
The basic question is whether plaintiffs' causes of action against Pullen survived his death and N.W. 1057, Ann.Cas. 1915B 113]]; Mexican Cent. Ry. Co. v. Goodman, 20 Tex.Civ.App.
are maintainable against his estate. The statutes of this state provide that causes of action for 109, 110 [48 S.W. 778] [but see Texas & Pac. Ry. Co. v. Richards, 68 Tex. 375, 378 [4 S.W.
negligent torts survive the death of the tort feasor and can be maintained against the 627]]; Needham v. Grand Trunk Ry. Co., 38 Vt. 294, 307-311; Ormsby v. Chase, 290 U.S.
administrator or executor of his estate. (Civ. Code, 956; Code Civ. Proc., 385; Prob. Code, 387, 388 [54 S.Ct. 211, 78 L.Ed. 378], followed in McIntosh v. General Chem. Defense Corp.,
67 F.Supp. 63, 64, Woollen v. Lorenz, 98 F.2d 261, 262 [68 App.D.C. 389], Gray v. survival statutes do not create a new cause of action, as do the wrongful death statutes.
Blight, 112 F.2d 696, 697-698, and Muir v. Kessinger, 45 F.Supp. 116, 117; Orr v. Ahern, 107 (Needham v. Grand Trunk Ry. Co., supra, 38 Vt. 294, 303-306; Austin v. Pittsburg, C., C., &
Conn. 174, 178-180 [139 A. 691]; Potter v. First Nat. Bank, 107 N.J.Eq. 72, 74-75 [151 A. St. L. Ry. Co., supra, 122 Ky. 304, 308-310; Martin v. Baltimore & Ohio R. Co., supra, 151
546], followed in Friedman v. Greenberg, 110 N.J.L. 462, 464-466 [166 A. 119], and U.S. 673, 696, 698, 701; Patton v. Brady, 184 U.S. 608, 612-615 [22 S.Ct. 493, 46 L.Ed. 713];
Rathgeber v. Sommerhalder, 112 N.J.L. 546, 548-549 [171 A. 835]; Summer v. Brown, 312 Spring v. Webb, 227 F. 481, 484-485; 1 C.J.S., p. 211; Schumacher, supra, 23 Mich.L.Rev.
Pa. 124, 127 [167 A. 315].) The Restatement of the Conflict of Laws, section 390, is in accord. 114, 124- 125. The English courts have reached the same result in construing similar statutes:
It should be noted, however, that the majority of the foregoing cases were decided after drafts Davies v. Powell Dufferin Assoc. Collieries, Ltd., [1942] A.C. 601, 610-616; Rose v. Ford,
of the Restatement were first circulated in 1929. Before that time, it appears that the weight of [1937] A.C. 826, 852, 855-856. See, also, Bradshaw v. Lancashire and Yorkshire Ry. Co.,
authority was that survival of causes of action is procedural and governed by the domestic law [1875] 10 C.P. 189, 192-193.) They merely prevent the abatement of the cause of action of the
of the forum. (Austin v. Pittsburg, C., C., & St. L. Ry. Co., 122 Ky. 304, 309-310 [91 S.W. injured person, and provide for its enforcement by or against the personal representative of the
742]; Baltimore & Ohio R. Co. v. Joy, 173 U.S. 226, 231 [19 S.Ct. 387, 43 L.Ed. 677]; deceased. [6] They are analogous to statutes of limitation, which [41 Cal.2d 865] are
Clough v. Gardiner, 111 Misc. 244, 248-249 [182 N.Y.S. 803]; Herzog v. Stern, 264 N.Y. procedural for conflict of laws purposes and are governed by the domestic law of the forum.
379, 383-384 [191 N.E. 23], followed in Demuth v. Griffin, 253 App.Div. 399, 401 [2 (Biewend v. Biewend, 17 Cal.2d 108, 114 [109 P.2d 701, 132 A.L.R. 1264].) [7] Thus, a cause
N.Y.S.2d 2], Domres v. Storms, 236 App.Div. 630 [260 N.Y.S. 335], Silverman v. Rappaport, of action arising in another state, by the laws of which an action cannot be maintained thereon
165 Misc. 543, 545-546 [300 N.Y.S. 76], Taynton v. Vollmer, 242 App.Div. 854 [275 N.Y.S. because of lapse of time, can be enforced in California by a citizen of this state, if he has held
284]; Gordon v. Chicago, R. I. & P. Ry. Co., 154 Iowa 449, 451 [134 N.W. 1057]; In re Vilas' the cause of action from the time it accrued. (Code Civ. Proc., 361; Stewart v. Spaulding, 72
Estate, 166 Ore. 115, 123-124 [110 P.2d 940]; Martin v. Baltimore & Ohio R. Co., 151 U.S. Cal. 264, 266 [13 P. 661]. See, also, Biewend v. Biewend, supra,; and Western Coal & Mining
673, [41 Cal.2d 864] 692-693 [14 S.Ct. 533, 38 L.Ed. 311]; Martin v. Wabash R. Co., 142 F. Co. v. Jones, 27 Cal.2d 819, 828 [167 P. 719, 164 A.L.R. 685].)
650, 651 [73 C.C.A. 646, 6 Ann.Cas. 582]; Page v. United Fruit Co., 3 F.2d 747, 754; Matter Defendant contends, however, that the characterization of survival of causes of action as
of Killough, 148 Misc. 73, 85-89 [265 N.Y.S. 301]; Texas & Pac. Ry. Co. v. Richards, 68 Tex. substantive or procedural is foreclosed by Cort v. Steen, 36 Cal.2d 437, 442 [224 P.2d 723],
375, 378 [4 S.W. 627]. See, also, Barker v. Ladd, Fed.Cas. 990 [3 Sawy. 44]; Gaskins v. where it was held that the California survival statutes were substantive and therefore did not
Bonfils, 4 F.Supp. 547, 551; Luster v. Martin, 58 F.2d 537, 539-540; Portland Gold Mining apply retroactively. The problem in the present proceeding, however, is not whether the
Co. v. Stratton's Independence, Ltd., 196 F. 714, 716-717; Whitten v. Bennett, 77 F. 271, 273; survival statutes apply retroactively, but whether they are substantive or procedural for
Winslow v. Domestic Engineering Co., 20 F.Supp. 578, 579.) Many of the cases, decided both purposes of conflict of laws. [8] " 'Substance' and 'procedure' ... are not legal concepts of
before and after the Restatement, holding that survival is substantive and must be determined invariable content" (Black Diamond Steamship Corp. v. Stewart & Sons, 336 U.S. 386,
by the law of the place where the tortious acts occurred, confused the problems involved in 397 [69 S.Ct. 622, 93 L.Ed. 754]. See, also, Guaranty Trust Co. v. York, 326 U.S. 99, 109 [65
survival of causes of action with those involved in causes of action for wrongful death. (See, S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231]; Sampson v. Channell, 110 F.2d 754, 756, 758;
for example, the precedents on which the courts relied in Hyde v. Wabash, St. L. & Pac. Ry. Estate of Caravas, 40 Cal.2d 33, 41-42 [250 P.2d 593]; W. W. Cook, The Logical and Legal
Co., supra, 61 Iowa 441; Orr v. Ahern, supra, 107 Conn. 174; and Ormsby v. Chase, Bases of the Conflict of Laws (1942), c. 6: "Substance and Procedure"), and a statute or other
supra, 290 U.S. 387.) The problems are not analogous. (See Schumacher, "Rights of Action rule of law will be characterized as substantive or procedural according to the nature of the
Under Death and Survival Statutes," 23 Mich.L.Rev. 114, 116-117, 124-125.) [4] A cause of problem for which a characterization must be made.
action for wrongful death is statutory. It is a new cause of action vested in the widow or next [9] Defendant also contends that a distinction must be drawn between survival of causes of
of kin, and arises on the death of the injured person. Before his death, the injured person action and revival of actions, and that the former are substantive but the latter procedural. On
himself has a separate and distinct cause of action and, if it survives, the same cause of action the basis of this distinction, defendant concludes that many of the cases cited above as holding
can be enforced by the personal representative of the deceased against the tort feasor. [5] The that survival is procedural and is governed by the domestic law of the forum do not support
this position, since they involved problems of "revival" rather than "survival." The distinction reasoned cases. (Matter of Killough, supra, 148 Misc. 73, 85-89; Herzog v. Stern, supra, 264
urged by defendant is not a valid one. Most of the statutes involved in the cases cited provided N.Y. 379; In re Vilas' Estate, supra, 166 Ore. 115; Martin v. Baltimore & Ohio R. Co.,
for the "revival" of a pending proceeding by or against the personal representative of a party supra, 151 U.S. 673; Whitten v. Bennett, supra, 77 F. 271, 273.) It retains control of the
thereto should he die while the action is still [41 Cal.2d 866] pending. But in most "revival" administration of estates by the local Legislature and avoids the problems involved in
statutes, substitution of a personal representative in place of a deceased party is expressly determining the administrator's amenability to suit under the laws of other states. [14] The
conditioned on the survival of the cause of action itself. fn. 1 [10] If the cause of action dies common law doctrine actio personalis moritur cum persona had its origin in a penal concept of
with the tort feasor, a pending proceeding must be abated. A personal representative cannot be tort liability. (See Prosser, Law of Torts 950-951; Pollock, The Law of Torts (10th ed.) 64,
substituted in the place of a deceased party unless the cause of action is still subsisting. In 68.) Today, tort liabilities of the sort involved in these actions are regarded as compensatory.
cases where this substitution has occurred, the courts have looked to the domestic law of the [15] When, as in the present case, all of the parties were residents of this state, and the estate
forum to determine whether the cause of action survives as well as to determine whether the of the deceased tort feasor is being administered in this state, plaintiff's right to prosecute their
personal representative can be substituted as a party to the action. (Gordon v. Chicago, R. I. & causes of action is governed by the laws of this state relating to administration of estates.
P. Ry. Co., supra, 154 Iowa 449, 451; Martin v. Baltimore & Ohio R. Co., supra, 151 U.S. The orders granting defendant's motions to abate are reversed, and the causes remanded for
673, 692; Martin v. Wabash R. Co., supra, 142 F. 650, 651; Baltimore & Ohio R. Co. v. Joy, further proceedings.
supra, 173 U.S. 226, 231.) Defendant's contention would require the courts to look to their Gibson, C.J., Shenk, J., and Carter, J., concurred.
local statutes to determine "revival" and to the law of the place where the tort occurred to SCHAUER, J.
determine "survival," but we have found no case in which this procedure was followed. I dissent. In Cort v. Steen (1950), 36 Cal.2d 437, 442 [224 P.2d 723], this court held that under
Since we find no compelling weight of authority for either alternative, we are free to make a the doctrine of nonsurvivability the abatement of an action by the death of the injured person
choice on the merits. [11] We have concluded that survival of causes of action should be through the tort feasor's act or otherwise, or by the death of the tort feasor, abates the wrong as
governed by the law of the forum. [12] Survival is not an essential part of the cause of action well; that the effect of a survival statute is to create a right or cause of action rather than to
itself but relates to the procedures available for the enforcement of the legal claim for either continue an existing right or revive or extend a remedy theretofore accrued [41 Cal.2d
damages. Basically the question is one of the administration of decedents' estates, which is a 868] for the redress of an existing wrong; and that consequently a survival statute enacted after
purely local proceeding. The problem here is whether the causes of action that these plaintiffs death of the tort feasor did not apply to the tort or cause of action involved. And more
had against Pullen before his death survive as liabilities of his estate. Section 573 of the recently, in Estate of Arbulich (1953), ante, pp. 86, 88-89 [257 P.2d 433], we recognized the
Probate Code provides that "all actions founded ... upon any liability for physical injury, death rule that the burden of proof provisions of the Probate Code sections (259 et seq) dealing with
or injury to property, may be maintained by or against executors and administrators in all reciprocal inheritance rights are not merely procedural in nature, but, rather, are substantive
cases in which the cause of action ... is one which would not abate upon the death of their statutes regulating succession, and that consequently such rights are to be determined by the
respective testators or intestates. ..." Civil Code, section 956, provides that [41 Cal.2d 867] "A law as it existed on the date of decedent's death. (See, also, Estate of Giordano (1948), 85
thing in action arising out of a wrong which results in physical injury to the person ... shall not Cal.App.2d 588, 592, 594 [193 P.2d 771].)
abate by reason of the death of the wrongdoer ...," and causes of action for damage to property Irreconcilably inconsistent with the cases cited in the preceding paragraph, the majority now
are maintainable against executors and administrators under section 574 of the Probate Code. hold that "Survival is not an essential part of the cause of action itself but relates to the
(See Hunt v. Authier, 28 Cal.2d 288, 292-296 [169 P.2d 913, 171 A.L.R. 1379]; Cort v. Steen, procedures available for the enforcement of the legal claim for damages. Basically the
supra, 36 Cal.2d 437, 439-440.) Decedent's estate is located in this state, and letters of question is one of the administration of decedents' estates, which is a purely local proceeding."
administration were issued to defendant by the courts of this state. [13] The responsibilities of If the above stated holding is to prevail, then for the sake of the law's integrity and clarity, and
defendant, as administrator of Pullen's estate, for injuries inflicted by Pullen before his death in fairness to lower courts and to counsel, the cited cases should be expressly overruled. But
are governed by the laws of this state. This approach has been followed in a number of well- even more regrettable than the failure to either follow or unequivocally overrule the cited
cases is the character of the "rule" which is now promulgated: the majority assert that
henceforth "a statute or other rule of law will be characterized as substantive or procedural
according to the nature of the problem for which a characterization must be made," thus
suggesting that the court will no longer be bound to consistent enforcement or uniform
application of "a statute or other rule of law" but will instead apply one "rule" or another as the
untrammeled whimsy of the majority may from time to time dictate, "according to the nature
of the problem" as they view it in a given case. This concept of the majority strikes deeply at
what has been our proud boast that ours was a government of laws rather than of men.
Although any administration of an estate in the courts of this state is local in a procedural
sense, the rights and claims both in favor of and against such an estate are substantive in
nature, and vest irrevocably at the date of death. (Estate of Patterson (1909), 155 Cal. 626, 634
[102 P. 941, 132 Am.St.Rep. 116, 18 Ann.Cas. 625, 26 L.R.A.N.S. 654].) Since this court has
clearly held that a right or cause of action created by a survival statute is likewise substantive,
rather than procedural, we should hold, if we would follow the law, [41 Cal.2d 869] that the
trial court properly granted defendant's motions to abate.
Spence, J., concurred.
EDMONDS, J.
I concur in the conclusion that the order granting the defendant's motion to abate should be
affirmed.
FN 1. For example, Code Civ. Proc., 385: "An action or proceeding does not abate by the
death, or any disability of a party ... if the cause of action survive or continue." (Italics added.)
See also 28 U.S.C.A., Rule 25(a)(1) [leg. hist., U.S.Rev.Stat., 955 (1874); Judiciary Act of
1789, 31]: "If a party dies and the claim is not thereby extinguished, the court ... may order
substitution ..." of the personal representative. (Italics added.) The exact language of Rule
25(a)(1) is repeated in Arizona Code, 1939, 21-530.
SECOND DIVISION On May 28, 1999, respondent informed MMG, through the petitioner, that he needs
to extend his vacation because his son was hospitalized. He also sought a promotion with
salary adjustment.[3] In reply, MMG informed respondent that his promotion is subject to
G.R. No. 172342 managements review; that his services are still needed; that he was issued a plane ticket for his
LWV CONSTRUCTION CORPORATION, return flight toSaudi Arabia on May 31, 1999; and that his decision regarding his employment
must be made within seven days, otherwise, MMG will be compelled to cancel [his] slot.[4]
Petitioner,
Present:
On July 6, 1999, respondent resigned. In his letter to MMG, he also stated:
xxxx
QUISUMBING, J., Chairperson,
I am aware that I still have to do a final settlement with the
CARPIO MORALES, company and hope that during my more than seven (7) [years]
- versus - services, as the Saudi Law stated, I am entitled for a long service
CHICO-NAZARIO,* award.[5] (Emphasis supplied.)
LEONARDO-DE CASTRO,** and xxxx
BRION, JJ.

According to respondent, when he followed up his claim for long service


MARCELO B. DUPO,
award on December 7, 2000, petitioner informed him that MMG did not respond. [6]
Promulgated:
Respondent.
July 13, 2009 On December 11, 2000, respondent filed a complaint[7] for payment of service
award against petitioner before the National Labor Relations Commission (NLRC), Regional
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Arbitration Branch, Cordillera Administrative Region, Baguio City. In support of his claim,
respondent averred in his position paper that:
DECISION xxxx

QUISUMBING, J.: Under the Law of Saudi Arabia, an employee who rendered at
least five (5) years in a company within the jurisdiction of Saudi Arabia, is
entitled to the so-called long service award which is known to others as
Petitioner LWV Construction Corporation appeals the Decision[1] dated December 6, longevity pay of at least one half month pay for every year of service. In
2005 of the Court of Appeals in CA-G.R. SP No. 76843 and its Resolution [2] dated April 12, excess of five years an employee is entitled to one month pay for every
2006, denying the motion for reconsideration. The Court of Appeals had ruled that under year of service. In both cases inclusive of all benefits and allowances.
Article 87 of the Saudi Labor and Workmen Law (Saudi Labor Law), respondent Marcelo
Dupo is entitled to aservice award or longevity pay amounting to US$12,640.33. This benefit was offered to complainant before he went on
vacation, hence, this was engrained in his mind. He reconstructed the
The antecedent facts are as follows: computation of his long service award or longevity pay and he arrived at
the following computation exactly the same with the amount he was
previously offered [which is US$12,640.33].[8] (Emphasis supplied.)
Petitioner, a domestic corporation which recruits Filipino workers, hired respondent as
Civil Structural Superintendent to work in Saudi Arabia for its principal, Mohammad Al-Mojil xxxx
Group/Establishment (MMG). On February 26, 1992, respondent signed his first overseas
employment contract, renewable after one year. It was renewed five times on the following
dates: May 10, 1993, November 16, 1994, January 22, 1996, April 14, 1997, and March 26, Respondent said that he did not grab the offer for he intended to return after his
1998. All were fixed-period contracts for one year. The sixth and last contract stated that vacation.
respondents employment starts upon reporting to work and ends when he leaves the work
site. Respondent left Saudi Arabia on April 30, 1999 and arrived in the Philippines on May 1, For its part, petitioner offered payment and prescription as defenses. Petitioner
1999. maintained that MMG pays its workers their Service Award or Severance Pay every
conclusion of their Labor Contracts pursuant to Article 87 of the [Saudi Labor Law]. Under
Article 87, payment of the award is at the end or termination of the Labor Contract concluded PART OF PUBLIC RESPONDENT NATIONAL LABOR RELATIONS
for a specific period. Based on the payroll,[9] respondent was already paid his service award or COMMISSION.
severance pay for his latest (sixth) employment contract.
II.
Petitioner added that under Article 13[10] of the Saudi Labor Law, the action to WHETHER OR NOT THE HONORABLE COURT OF APPEALS
enforce payment of the service award must be filed within one year from the termination of a ERRED IN FINDING THAT THE SERVICE AWARD OF THE
labor contract for a specific period. Respondents six contracts ended when he left Saudi RESPONDENT [HAS] NOT PRESCRIBED WHEN HIS COMPLAINT
Arabia on the following dates: April 15, 1993, June 8, 1994, December 18, 1995, March 21, WAS FILED ONDECEMBER 11, 2000.
1997, March 16, 1998 andApril 30, 1999. Petitioner concluded that the one-year prescriptive
period had lapsed because respondent filed his complaint on December 11, 2000 or one year
and seven months after his sixth contract ended.[11] III.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
In his June 18, 2001 Decision,[12] the Labor Arbiter ordered petitioner to pay ERRED IN APPLYING IN THE CASE AT BAR [ARTICLE 1155 OF
respondent longevity pay of US$12,640.33 or P648,562.69 and attorneys fees of P64,856.27 or THE CIVIL CODE].
a total ofP713,418.96.[13]
IV.
The Labor Arbiter ruled that respondents seven-year employment with MMG had WHETHER OR NOT THE HONORABLE COURT OF APPEALS
sufficiently oriented him on the benefits given to workers; that petitioner was unable to ERRED IN APPLYING ARTICLE NO. 7 OF THE SAUDI LABOR
convincingly refute respondents claim that MMG offered him longevity pay before he went on AND WORKMEN LAW TO SUPPORT ITS FINDING THAT THE
vacation on May 1, 1999; and that respondents claim was not barred by prescription since his BASIS OF THE SERVICE AWARD IS LONGEVITY [PAY] OR
claim on July 6, 1999, made a month after his cause of action accrued, interrupted the LENGTH OF SERVICE RENDERED BY AN EMPLOYEE.[16]
prescriptive period under the Saudi Labor Law until his claim was categorically denied.

Petitioner appealed. However, the NLRC dismissed the appeal and affirmed the Essentially, the issue is whether the Court of Appeals erred in ruling that respondent
Labor Arbiters decision.[14] The NLRC ruled that respondent is entitled to longevity pay which is entitled to a service award or longevity pay of US$12,640.33 under the provisions of the
is different from severance pay. Saudi Labor Law. Related to this issue are petitioners defenses of payment and prescription.

Aggrieved, petitioner brought the case to the Court of Appeals through a petition for Petitioner points out that the Labor Arbiter awarded longevity pay although the
certiorari under Rule 65 of the Rules of Court. The Court of Appeals denied the petition and Saudi Labor Law grants no such benefit, and the NLRC confused longevity pay and service
affirmed the NLRC. The Court of Appeals ruled that service award is the same as longevity award. Petitioner maintains that the benefit granted by Article 87 of the Saudi Labor Law
pay, and that the severance pay received by respondent cannot be equated with service is service award which was already paid by MMG each time respondents contract ended.
award. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, finding no grave abuse of discretion Petitioner insists that prescription barred respondents claim for service award as the
amounting to lack or in (sic) excess of jurisdiction on the part of public complaint was filed one year and seven months after the sixth contract ended. Petitioner
respondent NLRC, the petition is denied. The NLRC decision alleges that the Court of Appeals erred in ruling that respondents July 6, 1999 claim
dated November 29, 2002 as well as and (sic) its January 31, interrupted the running of the prescriptive period. Such ruling is contrary to Article 13 of the
2003 Resolution are hereby AFFIRMED in toto. Saudi Labor Law which provides that no case or claim relating to any of the rights provided
for under said law shall be heard after the lapse of 12 months from the date of the termination
SO ORDERED.[15] of the contract.

Respondent counters that he is entitled to longevity pay under the provisions of the
After its motion for reconsideration was denied, petitioner filed the instant petition Saudi Labor Law and quotes extensively the decision of the Court of Appeals. He points out
raising the following issues: that petitioner has not refuted the Labor Arbiters finding that MMG offered him longevity
pay of US$12,640.33 before his one-month vacation in the Philippines in 1999. Thus, he
I. submits that such offer indeed exists as he sees no reason for MMG to offer the benefit if no
law grants it.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN FINDING NO GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION ON THE
After a careful study of the case, we are constrained to reverse the Court of 1999.[19] The computation below shows that respondents severance pay of SR2,786 was his service
Appeals. We find that respondents service award under Article 87 of the Saudi Labor Law has award under Article 87.
already been paid.Our computation will show that the severance pay received by respondent
was his service award. Service Award = (SR5,438)[20] + (9 days/365 days)[21] x (SR5,438)
Service Award = SR2,786.04
Article 87 clearly grants a service award. It reads:
Article 87
Respondents service award for the sixth contract is equivalent only to half-months
Where the term of a labor contract concluded for a specified pay plus the proportionate amount for the additional nine days of service he rendered after one
period comes to an end or where the employer cancels a contract of year. Respondents employment contracts expressly stated that his employment ended upon his
unspecified period, the employer shall pay to the workman an award departure from work. Each year he departed from work and successively new contracts were
for the period of his service to be computed on the basis of half a months executed before he reported for work anew. His service was not cumulative. Pertinently,
pay for each of the first five years and one months pay for each of the in Brent School, Inc. v. Zamora,[22] we said that a fixed term is an essential and natural
subsequent years. The last rate of pay shall be taken as basis for the appurtenance of overseas employment contracts,[23] as in this case. We also said in that case
computation of the award. For fractions of a year, the workman shall be that under American law, [w]here a contract specifies the period of its duration, it terminates
entitled to an award which is proportionate to his service period during on the expiration of such period. A contract of employment for a definite period terminates by
that year. Furthermore, the workman shall be entitled to the service its own terms at the end of such period.[24] As it is, Article 72 of the Saudi Labor Law is also
awardprovided for at the beginning of this article in the following cases: of similar import. It reads:

A. If he is called to military service. A labor contract concluded for a specified period shall terminate
upon the expiry of its term. If both parties continue to enforce the contract,
B. If a workman resigns because of marriage or childbirth. thereafter, it shall be considered renewed for an unspecified period.[25]
C. If the workman is leaving the work as a result of a force
majeure beyond his control.[17] (Emphasis supplied.)
Regarding respondents claim that he was offered US$12,640.33 as longevity pay
before he returned to the Philippines on May 1, 1999, we find that he was not candid on this
particular point. His categorical assertion about the offer being engrained in his mind such that
Respondent, however, has called the benefit other names such as long service
he reconstructed the computation and arrived at the computation exactly the same with the
award and longevity pay. On the other hand, petitioner claimed that the service award is the
amount he was previously offered is not only beyond belief. Such assertion is also a stark
same asseverance pay. Notably, the Labor Arbiter was unable to specify any law to support
departure from his July 6, 1999 letter to MMG where he could only express his hope that he
his award of longevity pay.[18] He anchored the award on his finding that respondents
was entitled to a long service award and where he never mentioned the supposed previous
allegations were more credible because his seven-year employment at MMG had sufficiently
offer. Moreover, respondents claim that his monthly compensation is SR10,248.92[26] is belied
oriented him on the benefits given to workers. To the NLRC, respondent is entitled to service
by the payroll which shows that he receives SR5,438 per month.
award or longevity pay under Article 87 and that longevity pay is different from severance
pay. The Court of Appeals agreed.
We therefore emphasize that such payroll should have prompted the lower tribunals
to examine closely respondents computation of his supposed longevity pay before adopting
Considering that Article 87 expressly grants a service award, why is it correct to
that computation as their own.
agree with respondent that service award is the same as longevity pay, and wrong to agree
with petitioner that service award is the same as severance pay? And why would it be correct
to say that service award is severance pay, and wrong to call service award as longevity pay? On the matter of prescription, however, we cannot agree with petitioner that
respondents action has prescribed under Article 13 of the Saudi Labor Law. What applies is
Article 291 of our Labor Code which reads:
We found the answer in the pleadings and evidence presented. Respondents position
paper mentioned how his long service award or longevity pay is computed: half-months pay
per year of service and one-months pay per year after five years of service. Article 87 has the ART. 291. Money claims. All money claims arising from
same formula to compute the service award. employer-employee relations accruing during the effectivity of this Code
shall be filed within three (3) years from the time the cause of action
accrued; otherwise they shall be forever barred.
The payroll submitted by petitioner showed that respondent received severance pay of
SR2,786 for his sixth employment contract covering the period April 21, 1998 to April 29,
xxxx
In Cadalin v. POEAs Administrator,[27] we held that Article 291 covers all money In the light of the 1987 Constitution, however, Section 48 [of the
claims from employer-employee relationship and is broader in scope than claims arising from Code of Civil Procedure] cannot be enforced ex proprio vigore insofar as
a specific law. It is not limited to money claims recoverable under the Labor Code, but applies it ordains the application in this jurisdiction of [Article] 156 of the Amiri
also to claims of overseas contract workers.[28] The following ruling in Cadalin v. POEAs Decree No. 23 of 1976.
Administrator is instructive:
The courts of the forum will not enforce any foreign claim
First to be determined is whether it is the Bahrain law on obnoxious to the forums public policy x x x. To enforce the one-year
prescription of action based on the Amiri Decree No. 23 of 1976 or a prescriptive period of the Amiri Decree No. 23 of 1976 as regards the claims
Philippine law on prescription that shall be the governing law. in question would contravene the public policy on the protection to labor.[29]

Article 156 of the Amiri Decree No. 23 of 1976 provides: xxxx

A claim arising out of a contract of employment shall not be


actionable after the lapse of one year from the date of the expiry of the Thus, in our considered view, respondents complaint was filed well within the three-
contract x x x. year prescriptive period under Article 291 of our Labor Code. This point, however, has
already been mooted by our finding that respondents service award had been paid, albeit the
As a general rule, a foreign procedural law will not be applied in payroll termed such payment as severance pay.
the forum. Procedural matters, such as service of process, joinder of
actions, period and requisites for appeal, and so forth, are governed by the WHEREFORE, the petition is GRANTED. The assailed Decision dated December 6,
laws of the forum. This is true even if the action is based upon a foreign 2005 and Resolution dated April 12, 2006, of the Court of Appeals in CA-G.R. SP No. 76843, as well
substantive law (Restatement of the Conflict of Laws, Sec. 685; Salonga, as the Decision dated June 18, 2001 of the Labor Arbiter in NLRC Case No. RAB-CAR-12-0649-00
Private International Law, 131 [1979]). and the Decision dated November 29, 2002 and Resolution dated January 31, 2003 of the NLRC in
NLRC CA No. 028994-01 (NLRC RAB-CAR-12-0649-00) are REVERSED and SET ASIDE. The
A law on prescription of actions is sui generis in Conflict of Complaint of respondent is hereby DISMISSED.
Laws in the sense that it may be viewed either as procedural or
substantive, depending on the characterization given such a law. No pronouncement as to costs.

xxxx

However, the characterization of a statute into a procedural or


substantive law becomes irrelevant when the country of the forum has a
borrowing statute. Said statute has the practical effect of treating the
foreign statute of limitation as one of substance (Goodrich, Conflict of
Laws, 152-153 [1938]). A borrowing statute directs the state of the forum
to apply the foreign statute of limitations to the pending claims based on a
foreign law (Siegel, Conflicts, 183 [1975]). While there are several kinds
of borrowing statutes, one form provides that an action barred by the laws
of the place where it accrued, will not be enforced in the forum even
though the local statute has not run against it (Goodrich and Scoles,
Conflict of Laws, 152-153 [1938]). Section 48 of our Code of Civil
Procedure is of this kind. Said Section provides:

If by the laws of the state or country where the cause of action


arose, the action is barred, it is also barred in the Philippine Islands.

Section 48 has not been repealed or amended by the Civil Code


of the Philippines. Article 2270 of said Code repealed only those
provisions of the Code of Civil Procedure as to which were inconsistent
with it.There is no provision in the Civil Code of the Philippines, which is
inconsistent with or contradictory to Section 48 of the Code of Civil
Procedure (Paras, Philippine Conflict of Laws, 104 [7th ed.]).
Marie v Garrison purchased the road to give the plaintiffs the option to take it upon the terms proposed at any
time within six months after such purchase.
The complaint in its introductory averments sets forth that the plaintiffs and Denny "owned
ANDREWS, J. and held either in their own right, or in trust for others with full power of disposition," thirty-
Special demurrers, as known to the former practice, have no place in our present system of six thousand shares of the capital stock of the Pacific railroad of Missouri, of the aggregate par
pleading. The Code authorizes a demurrer for specific causes and no pleading is demurrable value of $3,600,000; that the defendant held $2,200,000 of the $4,000,000 issue of third
unless it is subject to one or more of the objections specified in the section defining the mortgage bonds, which it is alleged were of doubtful validity, and were claimed by the
grounds of demurrer. stockholders to have been fraudulently and collusively issued by the directors of the company,
and without the consent of the stockholders, as required by the laws of Missouri; that the
2 defendant was solicitous to have the bonds adjudicated to be valid, and that a collusive
A demurrer to a complaint for insufficiency can only be sustained when it appears that, foreclosure suit, in the interest of Garrison and others, was commenced by Ketcham in
admitting all the facts alleged, it presents no cause of action whatever. It is not sufficient that November, 1875, to foreclose the third mortgage, and was pending, in which suit the
the facts are imperfectly or informally averred, or that the pleading lacks definiteness and defendant had in April, 1876, been admitted as co-complainant, and had become the principal
precision, or that the material facts are only argumentatively averred. The complaint on party in prosecuting the same; that certain stockholders had intervened in the suit, and filed an
demurrer is deemed to allege what can be implied from the allegations therein, by reasonable answer and cross-bill, alleging collusion and fraud on the part of the directors of the road in
and fair intendment, and facts impliedly averred are traversable in the same manner as though the issue of the bonds; that some of the plaintiffs had filed a petition in the foreclosure suit to
directly averred. (1 Chitty's Pl. 713; Haight v. Holley, 3 Wend. 258; Prindle v. Caruthers, 15 be made parties, and to be allowed to defend the same in their own behalf, and in behalf of
N.Y. 425.) The remedy for indefiniteness is not by demurrer, but by motion. (Code, other stockholders; that the value of the equity of redemption in the road was $8,000,000.
546; Seeley v. Engell, 13 N.Y. 542.) "Indefiniteness," says Chitty, "is in general only matter of Following these introductory averments of the complaint, are paragraphs five and six, upon
form." (1 Chitty's Pl. 717.) The rule by which, under the Code, the sufficiency of a complaint which the plaintiffs rely as containing an averment of a consideration for the defendant's
is to be determined is stated by DENIO, J., in Zabriskie v. Smith ( 13 N.Y. 330.) He says: "It is promise contained in the letter, as follows:
sufficient that the requisite allegations can be fairly gathered from all the averments in the
complaint, though the statement of them may be argumentative, and the complaint deficient in "5th. That on or about the 29th day of March, 1876, with the view of compromising said
technical language." conflicting claims, and establishing the validity of said debt of $4,000,000 in the hands of said
In the light of these rules we proceed to examine the question whether the complaint in this Garrison (the defendant Garrison) and others of his associate bondholders, and to prevent the
case sets forth a cause of action. It is undoubtedly essential, to sustain the complaint, that it plaintiffs from defending said foreclosure suit, and in consideration of the relinquishment by
should appear therein that a valid contract was entered into by Garrison, from the breach of the plaintiffs of all further opposition to said foreclosure suit, the said Garrison, the defendant,
which a right of action has accrued to the plaintiffs and Denny. It is insisted, on the part of entered into an agreement with plaintiffs, evidenced in part by a letter written by him to some
Garrison, that the promise upon which the action is based is, so far as the complaint shows, a of the plaintiffs and the defendant Denny, a copy of which is hereto attached, marked `A,' and
mere nudum pactum, no valid consideration therefor being averred. The oral agreement of the same is made a part of this complaint.
June, 1876, upon which the action is brought, is alleged to have been made in consideration of "6th. The plaintiffs aver that they and the defendant, Denny, performed and fulfilled all the
the surrender by the plaintiffs and Denny to the defendant, Garrison, of the letter of March 29, preliminary obligations in the said agreement contained and agreed to be performed on
1876, and of their consenting to a modification of the terms of the agreement contained their part and behalf, and in consequence thereof said defendant, Garrison, was enabled to
therein, and no other consideration is averred or can be gathered from the terms of the procure a judgment and decree of foreclosure on or about June 6, 1876, and a sale of said
substituted agreement. If the contract surrendered was itself a nude pact,its surrender formed premises on or about the 6th day of September, 1876, which sale was confirmed by the court
no valid or legal consideration for the substituted promise. If, on the other hand, it was binding in the month of October, 1876, viz.: October 6, which confirmation was modified October 23,
and valid, it needs no citation of authorities to show that its surrender was in law a good 1876."
consideration for the new agreement.
It is not averred that the plaintiffs and Denny agreed to relinquish their opposition to the
Does, then, the complaint show, either directly or by fair inference, a valid consideration for foreclosure in consideration of the agreement of Garrison, contained in the letter. But the
the conditional promise of the defendant, Garrison, contained in the letter? No consideration averments contained in the paragraphs quoted do fairly import that in consequence of their
appears in the letter itself. It shows in general terms the situation of the Pacific Railroad relinquishment of such opposition the defendant, Garrison, was enabled to procure a judgment
Company and the relation of the parties to it; that Garrison was the owner of a majority in of foreclosure and sale, and it is averred in a subsequent part of the complaint that without
amount of the third mortgage bonds of the road, and that the parties to whom the letter was their "co-operation and consent a decree of foreclosure and sale would not then have been
addressed were stockholders therein, and that a foreclosure action to foreclose the third made, or made at all until after a trial by the court, the result of which trial was in doubt."
mortgage was pending at the suit of one Ketcham. The letter contains, in substance, a promise
by Garrison that if he should purchase the road on the foreclosure, he would, upon the 5
plaintiffs organizing a successor company within six months after the purchase and making It is not essential to the existence of a consideration for the defendant Garrison's agreement,
the payments and complying with the other conditions specified, convey the road to them. He that mutuality of obligation should have existed between the parties when his agreement was
does not bind himself to purchase; but in the event that he does purchase his undertaking to made. The necessary consideration would arise if the plaintiffs and Denny, in compliance with
convey the road on the terms stated is absolute. In substance, Garrison agreed in case he the proposition in his letter, and in consideration of his promise therein, did in fact discontinue
their opposition to the foreclosure, although they did not at the time bind themselves to do so. The complaint then alleges, "that although often requested so to do, the said Garrison has
When a defendant has actually received the consideration of an agreement by a voluntary refused and does refuse to fulfill his said contract with the plaintiffs, and to issue or cause to
performance of an act by the other party, upon his proposition or suggestion, such be issued and be delivered to the plaintiffs thirty-six thousand shares of stock in said (new)
performance constitutes a consideration which will uphold the defendant's company, in exchange for the stock of the Pacific railroad, so as aforesaid held by the
promise. ( Sands v. Crooke, 46 N.Y. 564; Morton v. Burn, 7 Ad. El. 25; Storm v. U.S., 94 U.S. plaintiffs." It is claimed that the complaint is defective, for the reason that it shows no offer,
83.) The fair intendment from the allegations of the complaint is that Garrison undertook to do readiness, or even ability to surrender the thirty-six thousand shares of old stock in exchange
the things promised in his letter, in case the plaintiffs would relinquish the opposition to the for the new shares. This objection is unanswerable, unless a tender of the old shares is implied
foreclosure, and that they did subsequently relinquish their opposition, thereby enabling him to in the averment of the refusal of Garrison to issue the new shares in exchange for the stock of
secure judgment of foreclosure. In this view we think the complaint sufficiently averred a the old company held by the plaintiffs. Bearing in mind that what is implied in an averment is
consideration for his original promise, and that the surrender of the option to purchase the on demurrer to be taken as if the thing implied is directly averred, and that an argumentative
road, in case it should be bid off by Garrison, was a good consideration for the substituted oral pleading is not for that reason demurrable, we conclude, although not without some
agreement. hesitation, that an averment of a refusal to exchange does import that the other party offered to
By the substituted agreement, Garrison agreed to bid off the road on the foreclosure sale, and do that without which no exchange could be effected, viz.: that he tendered the property or
organize a successor company, upon a basis stated in the complaint, and "deliver to said thing which was the consideration of that which he was to receive and which he called on the
plaintiffs and said Denny, in return for the amount of the stock of the Pacific railroad so as other party to deliver.
aforesaid held by them, thirty-six thousand full paid shares of the par value of one hundred
dollars each," in the new organization. It is made a separate ground of demurrer that there is a misjoinder of parties plaintiffs. This is
one of the grounds of demurrer under the new Code ( 448). This objection is predicated in
It is claimed that this agreement was illegal on two grounds: first, that it was a collusive part upon the general rule that parties whose interests are divided, distinct and several, cannot
arrangement between the parties to establish a fraudulent and invalid debt, and procure a sale unite as plaintiffs, and it is asserted that the interests of the plaintiffs under the contract sued
of the property of the company thereon to the prejudice of the other stockholders and upon were several and distinct within the rule stated. We concur in the view of the defendant's
creditors; and second, that the agreement was calculated to prevent competitive bidding counsel that the rational construction of the pleader's allegation in the introductory clause of
between the parties on the foreclosure sale, contrary to the general principles and policy of the the complaint, that the plaintiffs and Denny "owned and held, either in their own right or in
law. trust for others," the thirty-six thousand shares, etc., is that they held shares distributively and
severally aggregating that number, one or more holding their shares individually, and one or
We think that neither of these points is well taken. The complaint does not allege that the third more holding shares in trust, or that one or more, or each, held shares both individually and in
mortgage bonds were in fact fraudulent. It alleges that they were of doubtful validity, and then trust. But we think it does not follow from the individual or several ownership by the plaintiffs
proceeds to specify various particulars in respect to which it was claimed that they were of the shares in the old company, that their interest in the contract with Garrison was several
invalid, as before stated. It is not alleged that Garrison was a party to the fraud, if any existed and not joint, or that Garrison's contract was with the plaintiffs severally and distributively.
in the issue of the bonds, or that the company did not receive their full value, or that they were
not given to secure a valid debt, nor does it appear that the mortgage debt could not have been There seems to be no difficulty, in the nature of things, in the plaintiffs as owners of distinct
enforced in equity against the property of the company. The allegations of the complaint do and several shares of stock in the same company uniting and combining their shares in one
not justify the inference that the parties were colluding to enforce a fictitious debt against the aggregate for the purpose of sale as an entire property to one person, and taking from him a
company, and it is difficult to see what interest the plaintiffs could have had to have united in promise to pay them jointly a gross sum, equal to their aggregate interests, leaving them, as
such a conspiracy. between themselves, to arrange the distribution of the fund which shall be derived from the
sale. The circumstances of this case show that such an arrangement may be of great practical
In respect to the second ground of alleged illegality it is to be observed, that the magnitude of convenience, and we know of no peremptory rule of law which forbids it. The promise of
the property involved in the foreclosure would naturally prevent an individual (unless Garrison was, in form, a promise to the plaintiffs jointly. He entered into no undertaking to
possessed of great wealth) from bidding on the sale. The plaintiffs, who together owned a transfer to each plaintiff shares corresponding with the shares held by him in the old company.
large number of shares, had a right to enter into any arrangement for the protection of their His promise was on receiving from the plaintiffs, as an aggregation of individuals, thirty-six
interests not prohibited by law. This was not the case of a combination between persons thousand shares, to give them in exchange thirty-six thousand other shares. The shares to be
having no prior interest in the property to suppress bidding at a judicial sale for speculative transferred by them to Garrison, and by Garrison to the plaintiffs, were to be transferred in
purposes. The arrangement made was, so far as appears, a reasonable and honest attempt on solido. The legal interest of the plaintiffs in the contract was joint, although their interest in the
the part of the plaintiffs, to save their property from being sacrificed on the foreclosure. The shares to be transferred by Garrison or in the damages which may be recovered may be
other stockholders and bondholders were at liberty to bid on the sale. The mere fact that an unequal and separable. The construction of the contract is, we think, precisely the same as if
arrangement, fairly entered into, with honest motives, for the preservation of existing rights the plaintiffs had been joint owners of the shares when the contract was made.
and property, may incidentally restrict competition at a public or judicial sale, does not, we (See Emery v. Hitchcock, 12 Wend. 156; Loomisv. Brown, 16 Barb. 331; 1 Pars. on Cont. 19,
think, render the arrangement illegal. The question of intent, at all events, is one for the jury, and cases in note.)
upon the whole facts as they shall appear on the trial. ( Marsh v. Russell, 66 N.Y.
288; Phippen v. Stickney, 3 Metc. 384; Wicker v. Hoppock, 6 Wall. 94.) It is also claimed that there is a misjoinder of causes of action in behalf of trustees, with causes
of action in favor of individuals, and also that the complaint is defective in not setting forth the
The complaint shows that the road on the foreclosure sale was purchased for the defendant, trust under which the trust shares were held. But the averment in the complaint that the shares
Garrison, in the name of a third party, and that he subsequently organized a new company. were held by the plaintiffs either in their own right or in trust, is an averment simply of legal
title of the plaintiffs to the shares mentioned. The action is not an action by trustees to enforce
a trust, or upon a contract made by the plaintiffs in a representative character. The contract is
with the plaintiffs as individuals, and we are of opinion that an action may be maintained
thereon by them in their own names, without setting out the trust or referring to their character
as trustees. At least it cannot appear on demurrer that the plaintiffs are not entitled to maintain
the action in their individual capacity. (See Merritt v. Seaman, 6 N.Y. 168;Mellen v. Hamilton
F. Ins. Co., 17 id. 615; 1 Chitty's Pl. 3.)
Our conclusion is that the demurrer was properly overruled at the Special Term. It must be
admitted that the complaint is indefinite and argumentative, and that material facts are
obscurely averred, but we think that it is not defective in substance within the rules by which
the sufficiency of pleadings on demurrer is tested.
The judgment of the General Term should be reversed and the judgment of the Special Term
affirmed, with leave to the defendant to answer on payment of costs.
All concur, except FINCH, J., taking no part.
John Bournias, Libelant-appellant, v. Atlantic Maritime Co., Ltd., Navegacion him and deducted from his pay in alleged violation of 46 U.S.C.A. 599; the exceptive
Maritime Panama S.a. and the S.s. Atlantic Ocean, Her Engines, Tackle, Boilers, Etc.,
Respondents-appellees, 220 F.2d 152 (2d Cir. 1955) allegations were deemed amended to plead laches to this new claim; and the question of
whether the action was barred by lapse of time was set down for a separate hearing.
U.S. Court of Appeals for the Second Circuit - 220 F.2d 152 (2d Cir. 1955)
At this hearing the Court held that the defense of laches, which was treated by Court and
Argued December 10, 1954 counsel as going only to the claim for advances, had not been substantiated, but that the
Decided February 10, 1955 Panama statute of limitations did bar the claims under the Panama Labor Code, and that in
consequence the claim for penalties must also fail pro tanto. Although the respondents appear
to argue that we are free on this appeal to hold the claim for wages barred by laches, if not by
limitation, we regard the correctness of the lower Court's decision on the applicability of the
Panama statute of limitations as the only issue before us.
Lebovici & Safir, New York City, (Herbert Lebovici, New York City, of counsel), for
Article 623 of the Labor Code of Panama, applicable to Articles 127, 154, 166 and 170 of the
libelant-appellant.
Code, upon which the libelant based his first cause of action, reads:

McNutt & Nash, New York City (James E. Freehill and Donald B. Allen, New York City, of "Actions and rights arising from labor contracts not enumerated in Article 621 shall prescribe

counsel), for respondents-appellees. [i.e., shall be barred by the Statute of Limitations] in a year from the happening of the events
from which arise or are derived the said actions and rights."1
Before CLARK, Chief Judge, MEDINA and HARLAN, Circuit Judges.
The libelant's employment terminated on December 27, 1950, and since his libel was not filed
until December 29, 1952, his first cause of action would be barred by Article 623 if it is
HARLAN, Circuit Judge.
controlling in this action.

In actions where the rights of the parties are grounded upon the law of jurisdictions other than
the forum, it is a well-settled conflict-of-laws rule that the forum will apply the foreign
substantive law, but will follow its own rules of procedure. Restatement of Conflict of Laws

Libelant, a seaman, was employed on respondents' vessel at the time she was changed from 585; Beale, Conflict of Laws 584.1 (1935); Stumberg, Conflict of Laws 134 et seq. (2d Ed.

Panamanian to Honduran registry. As originally filed the libel contained two causes of action. 1951). While it might be desirable, in order to eliminate "forum-shopping," for the forum to

The first was based on several Articles of the Panama Labor Code, under which the libelant apply the entire foreign law, substantive and procedural or at least as much of the

claimed an extra three-months' wages payable to seaman upon change of registry, and other procedural law as might significantly affect the choice of forum, it has been recognized that to

amounts for vacation, overtime and holiday pay. The second was for penalties under 46 do so involves an unreasonable burden on the judicial machinery of the forum, see

U.S.C.A. 596 for failure to pay these amounts promptly. Restatement of Conflict of Laws, Introductory Note to Chapter 12, and perhaps more
significantly, on the local lawyers involved, see Ailes, Substance and Procedure in the Conflict
The respondents filed exceptive allegations asserting, inter alia, that the action was barred by
of Laws, 39 Mich. L. Rev. 392, 416 (1941). Consequently, for at least some questions the law
the one-year statute of limitations contained in Article 623 of the Panama Labor Code. After
applied is that of the forum, with which the lawyers and judges are more familiar, and which
an argument on respondents' motion to sustain such allegations, the libelant was permitted to
can be administered more conveniently. In Levinson v. Deupree, 1953, 345 U.S. 648, 652, 73
amend his libel to include a third cause of action to recover the amount of advances made to
S. Ct. 914, 916, 97 L. Ed. 1319, it was said that while a federal admiralty court was bound to It is not always easy to determine whether a foreign statute of limitations should be regarded
enforce a foreign right as it found it, it was "not bound beyond that to strive for uniformity of as "substantive" or "procedural," for the tests applied by the courts are far from precise. In The
results in procedural niceties with the courts of the jurisdiction which originated Harrisburg, 1886, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358, the Supreme Court held
the obligatio." These are the ground rules which govern a federal admiralty court in enforcing "substantive" a limitation period contained in a wrongful death statute, emphasizing that "the
an obligatio created by Panamanian law. liability and the remedy are created by the same statutes, and the limitations of the remedy are
therefore to be treated as limitations of the right," 119 U.S. at page 214, 7 S. Ct. at page 147. It
The general rule appears established that for the purpose of deciding whether to apply local
now appears settled that limitation periods in wrongful death statutes will be regarded as
law or foreign law, statutes of limitations are classified as "procedural." Stumberg, Conflict of
"substantive." Restatement of Conflict of Laws 397. And the rule of The Harrisburg has
Laws 147 (1951); Lorenzen, Statutes of Limitation and the Conflict of Laws, 28 Yale L.J. 492
been stated to apply not merely to rights to sue for wrongful death, but to any statute-created
(1919). Hence the law of the forum controls. See Order of United Commercial Travelers v.
right unknown to the common law. See Zellmer v. Acme Brewing Co., 9 Cir., 1950, 184 F.2d
Wolfe, 1947, 331 U.S. 586, 607, 67 S. Ct. 1355, 91 L. Ed. 1687; Janes v. Sackman Bros. Co.,
940; Lewis v. R. F. C., 1949, 85 U.S.App.D.C. 339, 177 F.2d 654; Ford, Bacon & Davis, Inc.
2 Cir., 1949, 177 F.2d 928. This rule has been criticized as inconsistent with the rationale
v. Volentine, 5 Cir., 1933, 64 F.2d 800. The rule was also carried a step further in Davis v.
expressed above, since the foreign statute, unlike evidentiary and procedural details, is
Mills, 1904, 194 U.S. 451, 24 S. Ct. 692, 694, 48 L. Ed. 1067. Suggesting that in the instances
generally readily discovered and applied, and a difference in periods of limitation would often
where courts have found some statutes of limitation to be "substantive" they were seeking a
be expected to influence the choice of forum. Lorenzen, supra; Stumberg, op. cit., supra. The
"reasonable distinction" for escaping from the anomaly of the rule that limitations are
rule is in fact an accident of history. Lorenzen, supra; see also Developments in the Law
generally to be regarded as "procedural," Mr. Justice Holmes continued, "The common case
Statutes of Limitations, 63 Harv. L. Rev. 1177, 1187 (1950). And although it may perhaps be
[where limitations are treated as "substantive"] is where a statute creates a new liability, and in
explained as a device for giving effect to strong local policies on limitations, this explanation
the same section or in the same act limits the time within which it can be enforced, whether
would not satisfy the objections of its critics. Lorenzen, supra. Be all this as it may, this
using words of condition or not. The Harrisburg, 119 U.S. 199 [7 S. Ct. 140], 30 L. Ed. 358.
general rule is firmly embedded in our law.
But the fact that the limitation is contained in the same section or the same statute is material
But as might be expected, some legislatures and courts, perhaps recognizing that in light of the only as bearing on construction. It is merely a ground for saying that the limitation goes to the
rationale of the underlying conflict-of-laws doctrine it is anomalous to classify across-the- right created, and accompanies the obligation everywhere. The same conclusion would be
board statutes of limitation as "procedural," have created exceptions to the rule so categorizing reached if the limitation was in a different statute, provided it was directed to the newly
such statutes. A legislative example are the so-called "borrowing statutes" which require the created liability so specifically as to warrant saying that it qualified the right." See also Maki
courts of the forum to apply the statute of limitations of another jurisdiction, often that where v. George R. Cooke Co., 6 Cir., 1942, 124 F.2d 663, 146 A.L.R. 1352, where the test of
the cause of action arose, when the forum's statute has been tolled. See Note, Legislation "specificity" was found satisfied by a separate statute imposing a limitation on all statutory
Governing the Applicability of Foreign Statutes of Limitation, 35 Col.L.Rev. 762 (1935). A rights.
court-made exception, and the one with which we are concerned here, is that where the foreign
Two other approaches to the problem were suggested in our opinion in Wood & Selick, Inc.,
statute of limitations is regarded as barring the foreign right sued upon, and not merely the
v. Compagnie Generale Transatlantique, 2 Cir., 1930, 43 F.2d 941. First, that the foreign law
remedy, it will be treated as conditioning that right and will be enforced by our courts as part
might be examined to see if the defense possessed the attributes which the forum would
of the foreign "substantive" law. See Beale, Conflict of Laws 604.3, 605.1 (1935). Such
classify as "procedural" or "substantive"; that is, for example, whether the defense need be
exceptions operate pro tanto to give the result which commentators have advocated.
pleaded, as a "substantive" period of limitations need not be in this country. Second, the
foreign law might be examined to see if the operation of limitation completely extinguished
the right, in which case limitation would be regarded as "substantive." Still other tests are guarded against." Cook, Substance and Procedure in the Conflict of Laws, 42 Yale L.J. 333,
suggested by Goodwin v. Townsend, 3 Cir., 1952, 197 F.2d 970 namely, whether the 337 (1933). No more should it matter whether the foreign right is extinguished altogether by
foreign limitation is regarded as "procedural" or "substantive" by the courts of the foreign state the mere passage of time, or is instead only repressed into a dormant state, subject to "revival"
concerned, and possibly whether the limitation is cast in language commonly regarded as if the defense of limitation is waived or renounced, Wood & Selick, supra. Such a distinction
"procedural." would generally be difficult to apply, and might also lead to results out of the pattern of the
precedents; that is, if the defense could be waived under foreign law, a limitation period might
Which, then, of these various tests should be applied here? It appears to us that it should be the
be considered "procedural" even though it was contained in a specific statute giving a remedy
one which Davis v. Mills, 1904, 194 U.S. 451, 24 S. Ct. 692, 48 L. Ed. 1067, suggests for use
for wrongful death. Such limitations, however, are almost invariably held "substantive."
where the right and its limitation period are contained in separate statutes, viz.: Was the
Restatement of Conflict of Laws 397. And whether the wording of the limitation period
limitation "directed to the newly created liability so specifically as to warrant saying that it
seems more like "procedural" or "substantive" language, Goodwin, supra, does not appear to
qualified the right"? 194 U.S. at page 454, 24 S. Ct. at page 694, italics supplied. To be sure
have been generally considered important.
Davis was concerned with the statute of limitations of a sister state (Montana), but there is
nothing in Mr. Justice Holmes' opinion to suggest that the application of the test there laid It is true that the test we prefer leaves much to be desired. It permits the existence of a
down is limited to that type of case. And where, as here, we are dealing with a statute of substantial gray area between the black and the white. But it at least furnishes a practical
limitations of a foreign country, and it is not clear on the face of the statute that its purpose means of mitigating what is at best an artificial rule in the conflict of laws, without exposing
was to limit the enforceability, outside as well as within the foreign country concerned, of the us to the pitfalls inherent in prolonged excursions into foreign law; and it permits us to avoid
substantive rights to which the statute pertains, we think that as a yardstick for determining the short-comings discussed above. We conclude, therefore, that the "specificity" test is the
whether that was the purpose this test is the most satisfactory one. It does not lead American proper one to be applied in a case of this type, without deciding, of course, whether the same
courts into the necessity of examining into the unfamiliar peculiarities and refinements of test would also be controlling in cases involving domestic or other kinds of foreign statutes of
different foreign legal systems, and where the question concerns the applicability of a code limitations.
provision of a civil law country, this test seems more appropriate than any of the others.
Applying that test here it appears to us that the libelant is entitled to succeed, for the
Even though the limitation period here is contained in the same statute as enacts the right respondents have failed to satisfy us that the Panamanian period of limitation in question was
sought to be enforced, The Harrisburg, supra, still, as noted later, because of the breadth of the specifically aimed against the particular rights which the libelant seeks to enforce. The
Panama Labor Code, as contrasted with the limited scope of the statute involved in The Panama Labor Code is a statute having broad objectives, viz.: "The present Code regulates the
Harrisburg, the limitation period should not automatically be regarded as "substantive." Nor relations between capital and labor, placing them on a basis of social justice, so that, without
would it be appropriate to make this case turn on the fact that the right sued upon was injuring any of the parties, there may be guaranteed for labor the necessary conditions for a
unknown at common law (Zellmer and other cases cited, supra) when we are dealing with the normal life and to capital an equitable return for its investment." In pursuance of these
statutes of a country where the common law does not exist. And we do not think that it should objectives the Code gives laborers various rights against their employers. Article 623
matter whether the foreign court has interpreted its statute as being "procedural" or establishes the period of limitation for all such rights, except certain ones which are
"substantive" for some other purpose, which may have happened in Goodwin, supra, or enumerated in Article 621. And there is nothing in the record to indicate that the Panamanian
whether the foreign practice requires that limitation be pleaded, Wood & Selick, supra. "The legislature gave special consideration to the impact of Article 623 upon the particular rights
tendency to assume that a word which appears in two or more legal rules, and so in connection sought to be enforced here, as distinguished from the other rights to which that Article is also
with more than one purpose, has and should have precisely the same scope in all of them, runs applicable. Were we confronted with the question of whether the limitation period of Article
all through legal discussions. It has all the tenacity of original sin and must constantly be 621 (which carves out particular rights to be governed by a shorter limitation period) is to be
regarded as "substantive" or "procedural" under the rule of "specificity" we might have a examples of the rule that the limitation periods applicable to wrongful death actions are
different case; but here on the surface of things we appear to be dealing with a "broad," and generally to be regarded as "substantive," a result which might often be explained in terms of
not a "specific," statute of limitations. And this being a case brought on the admiralty side of the "specificity" test. The Harrisburg was so read in Davis v. Mills, supra. And Guaranty Trust
the federal court, we are of course limited to considering the foreign law material before us, Co. v. York, requiring federal courts in diversity cases to apply state limitation periods, has no
and we may not take judicial notice of anything beyond that. Black Diamond S. S. Corp. v. application in cases such as this, which are not governed by the rule of Erie R. R. v.
Robert Stewart & Sons, 1949, 336 U.S. 386, 396-397, 69 S. Ct. 622, 93 L. Ed. 754. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, as the Supreme Court took pains
to point out in Levinson v. Deupree, 1953, 345 U.S. 648, 73 S. Ct. 914, 97 L. Ed. 1319, and
We therefore conclude that under the proper test the respondents have not made out their
we may therefore not safely assume that the Guaranty Trust Co. holding expresses a rule of
defense. In so holding we reach the same result as we did in the similar situation involved in
federal policy which would be applicable here. It is true that the language of Levinson v.
Wood & Selick, 1930, 43 F.2d 941.
Deupree, supra [345 U.S. 648, 73 S. Ct. 916], saying that federal admiralty courts enforcing a
For reasons already discussed, we think this conclusion is not affected, on the one hand, by the foreign-created right are not bound to "strive for uniformity of results in procedural niceties"
testimony of the respondents' expert to the effect that in his opinion Article 623 would be with the foreign court, may be taken to suggest that where the issue concerns statutes of
regarded under Panamanian law as a "substantive" limitation upon the libelant's rights under limitations, which even though "procedural" are not "procedural niceties," there should then be
the Panama Labor Code, or, on the other hand, by the libelant's showing that under uniformity in results. But we think the Court meant to express no opinion on this point. In any
Panamanian law this statute of limitations has some of the same attributes as such statutes do event, we would not consider that the Court had intended to abandon so traditional a doctrine
under our law, and that the libelant's rights under the Panama Labor Code may not be as the one involved here, unless it had dealt with the issue more directly.
altogether extinguished by the passage of the period of limitation. And we consider quite
Reversed.
inconclusive the argument that the prescription period of Article 623 is addressed to both
"Actions and rights." Nor in reaching our conclusion have we been influenced by the lower
Court's statement that it felt justified in regarding Article 623 as "procedural." Even treating
this as a finding, despite the Court's view, which we discuss in a moment, that the respondents
should prevail whether Article 623 be regarded as "substantive" or as "procedural," we would
not consider ourselves bound by it. For that conclusion seems to have been reached without
the Court having addressed itself to the "specificity" rule, so that the finding would rest on a
wrong legal premise and should therefore be disregarded.

In conclusion, the Trial Judge, in finding for the respondents, held that when an admiralty
court enforces a foreigncreated right, it must also enforce the foreign statute of limitations,
whether that statute be denominated "substantive" or "procedural." The court's decision was
based on Rose v. United States, D.C.E.D.N.Y. 1947, 73 F. Supp. 759, where the Supreme
Court's decisions in The Harrisburg, 1886, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358, and
Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S. Ct. 89, 66 L. Ed. 210, considered in
conjunction with Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed.
2079, were read to require this result. These first two cases seem to us, however, to be simply
7 Wis.2d 130 (1959) this premise it was further held that interspousal immunity from tort liability
2 necessarily is governed [132] by the law of the place of injury. This principle of
HAUMSCHILD, Appellant, conflict of laws has been consistently applied in all subsequent interspousal actions
v. in automobile accident cases[1] except the recent case of Bodenhagen v. Farmers
CONTINENTAL CASUALTY COMPANY and others, Respondents. Mut. Ins. Co. (1958), 5 Wis. (2d) 306, 92 N. W. (2d) 759, 95 N. W. (2d) 822,
3 hereinafter discussed.
Supreme Court of Wisconsin. 11
4 The principle enunciated in the Buckeye Case and followed in subsequent Wisconsin
March 2, 1959. cases, that the law of the place of wrong controls as to whether one spouse is
5
immune from suit in tort by the other, is the prevailing view in the majority of
April 10, 1959.
jurisdictions in this country. Anno. 22 A. L. R. (2d) 1248, 1251-1253, entitled,
6
"Conflict of laws as to right of action between husband and wife or parent and child."
[131] For the appellant there was a brief and oral argument by Thomas P.
It is also the rule adopted in Restatement, Conflict of Laws, p. 457, sec. 378, and p.
Maroney of Milwaukee.
7 470, sec. 384 (2). However, criticism of the rule of the Buckeye Case, by legal
For the respondents there was a brief by Shaw, Muskat & Paulsen, attorneys, writers, some of them recognized authorities in the field of conflict of laws, and
and Jack R. Wiedabach of counsel, all of Milwaukee, and oral argument by Mr. recent decisions by the courts of California, New Jersey, and Pennsylvania, have
Wiedabach. caused us to re-examine the question afresh.
8 12
CURRIE, J. In 1942, Prof. Walter Wheeler Cook of the Northwestern University Law School

9 faculty published his book entitled, "The Logical and Legal Bases of the Conflict of

This appeal presents a conflict-of-laws problem with respect to interspousal liability Laws." It was his conclusion that the law of the domicile, and not the place of wrong,
should be applied in determining whether [133] a wife had capacity to sue her
for tort growing out of an automobile accident. Which law controls, that of the state
husband in tort. Pages 248 to 250 and 345 to 346 of text. Also, in 1942, Max
of the forum, the state of the place of wrong, or the state of domicile? Wisconsin is
both the state of the forum and of the domicile while California is the state where the Rheinstein in an article in 41 Michigan Law Review, 83, 97, advocated that the law
of domicile should be applied in conflict-of-laws situations to determine whether
alleged wrong was committed. Under Wisconsin law a wife may sue her husband in
there is an immunity for tort grounded on family relationship. Ernst Rabel, in his
tort. Under California law she cannot. Peters v. Peters (1909), 156 Cal. 32, 103 Pac.
219; Cubbison v. Cubbison (1946), 73 Cal. App. (2d) 437, 166 Pac. (2d) 387; "The Conflict of Laws: A Comparative Study" (1945), pp. 322, 323, pointed out that
in the civil-law countries of western Europe prohibitions, which exclude lawsuits in
and Paulus v. Bauder (1951), 106 Cal. App. (2d) 589, 235 Pac. (2d) 422.
10 tort between husband and wife, are considered part of family law and, therefore, the
This court was first faced with this question in Buckeye v. Buckeye (1931), 203 Wis. law of the domicile governs and not the law of the place of wrong.
13
248, 234 N. W. 342. In that case Wisconsin was the state of the forum and domicile,
while Illinois was the state of the place of wrong. It was there held that the law The most-comprehensive treatment of the problem that we have discovered is the
excellent 30-page article in 15 University of Pittsburgh Law Review, 397, entitled,
governing the creation and extent of tort liability is that of the place where the tort
"Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and
was committed, citing Goodrich, Conflict of Laws (1st ed.), p. 188, sec. 92. From
Reason versus the Restatement," by Alan W. Ford, published in 1954. The article 16

contains a careful analysis of the American cases on the subject commencing with The first case to break the ice and flatly hold that the law of domicile should be

our own Buckeye Case. The author's conclusion is stated as follows (p. 423): applied in determining whether there existed an immunity from suit for tort based
14 upon family relationship is Emery v. Emery (1955), 45 Cal. (2d) [135] 421, 289 Pac.
"The lex fori and the lex loci delicti rules have already been criticized as inadequate. (2d) 218. In that case two unemancipated minor sisters sued their unemancipated

Between them, these two rules encompass all of the American cases. To find a more- minor brother and their father to recover for injuries sustained in an automobile
accident that occurred in the state of Idaho, the complaint alleging wilful misconduct
desirable alternative we must, therefore, go beyond those cases. The foreign
in order to come within the provisions of the Idaho "guest" statute. All parties were
experience, briefly discussed above, is a useful starting point. As that experience
domiciled in California. The opinion by Mr. Justice TRAYNOR recognized that the
suggests, there is some logic in separating questions of status and tort, in determining
California court, in passing on the question of whether an unemancipated minor child
the incidents of the marital relationship by the family law, and the problems of tort may sue the parent or an unemancipated brother, had a choice to apply the law of the
by the law of torts. If a conflicts problem is involved, there is no reason why both place of wrong, of the forum, or of the domicile. It was held that the immunity issue
questions should be determined by the law of torts. Instead, the two questions should was not a question of tort but one of capacity to sue and be sued, and rejected the law
remain separate, and problems of status or capacity could be referred, by an of the place of injury as "both fortuitous and irrelevant." In deciding whether to

appropriate conflicts rule, to the law of the place of the domicile." apply the law of the forum, or the law of the domicile, the opinion stated this
15 conclusion (45 Cal. (2d) 428, 289 Pac. (2d) 222):
[134] Ford, in his article, cited four cases of interspousal immunity in which 17

American courts have refused to apply the law of the place of wrong to an "Although tort actions between members of the same family will ordinarily be
automobile accident situation but instead applied their own law of the forum:Poling brought in the state of the family domicile, the courts of another state will in some
v. Poling (1935), 116 W. Va. 187, 179 S. E. 604; Mertz v. Mertz (1936), 271 N. Y. cases be a more convenient forum, and thus the question arises whether the choice-
466, 3 N. E. (2d) 597, 108 A. L. R. 1120; Kircher v. Kircher (1939), 288 Mich. 669, of-law rule should be expressed in terms of the law of the forum or that of the
286 N. W. 120; and Kyle v. Kyle (1941), 210 Minn. 204, 297 N. W. 744. In all four
domicile. We think that disabilities to sue and immunities from suit because of a
cases one spouse sued the other in the state of domicile where there existed the
family relationship are more properly determined by reference to the law of the state
immunity from suit in tort in a situation where the accident had occurred in a state
of the family domicile. That state has the primary responsibility for establishing and
which had abolished the immunity. The decisions were based on the ground that the
public policy of the forum state forbade one spouse suing the other in tort.[2] The regulating the incidents of the family relationship and it is the only state in which the

holdings in these four cases are highly significant because they are inconsistent in parties can, by participation in the legislative processes, effect a change in those
result with the theory that the injured spouse possessed a vested right in the cause of incidents. Moreover, it is undesirable that the rights, duties, disabilities, and
action which had accrued in the state where the alleged negligence occurred. immunities conferred or imposed by the family relationship should constantly
Furthermore, these cases are authority for the principle that public policy may be a change as members of the family cross state boundaries during temporary absences
controlling factor to be considered by the court of the forum state in determining
from their home."
which law it will apply in resolving a conflict-of-laws problem. This factor of public
policy is also acknowledged in Restatement, Conflict of Laws, pp. 9, 10, sec. 5, 18
comment b.
Since the decision in Emery v. Emery, supra, two other courts have held that, when a law to be applied, than it does tort law, where the place of injury generally
court is confronted with a [136] conflict-of-laws problem in order to resolve an issue determines the substantive law which will govern. In making a choice between the
of whether there is an immunity from suit for tort based upon a family relationship, law of the domicile and the law of the forum, in those situations where the action is
the law to be applied is that of the domicile state. Koplik v. C. P. Trucking not brought in the state of the domicile, the afore-quoted persuasive arguments
Corp.(1958), 27 N. J. 1, 141 Atl. (2d) 34; and Pittman v. Deiter (1957), 10 Pa. D. & advanced by the California and New Jersey courts in Emery v. Emery,
C. (2d) 360. The conclusion reached by the New Jersey supreme court in the Koplik supra, and Koplik v. C. P. Trucking Corp., supra, in favor of applying the law of
Case, after first having rejected the law of the place of injury as applicable to the domicile to decide any issue of incapacity to sue based upon family relationship,
immunity question, is stated succinctly as follows (27 N. J. 11, 141 Atl. (2d) 40): seem unanswerable.
19 22
"As a final word on the subject, we hold the view that even where an actual conflict- We are convinced that, from both the standpoint of public policy and logic, the

of-laws problem is directly presented, it is sensible and logical to have disabilities to proper solution of the conflict-of-laws problem, in cases similar to the instant action,
is to hold that the law of the domicile is the one that ought to be applied in
sue and immunities from suit arising from the family relationship determined by
determining any issue of incapacity to sue based upon family relationship.
reference to the law of the state of the family domicile when the suit is brought in 23
that state. Otherwise, the lex loci will be permitted to interfere seriously with a status However, in order to adopt such a conflict-of-laws rule it will be necessary to
and a policy which the state of residence is primarily interested in maintaining." overrule at least six prior decisions of this court, and to partially overrule two others.
(Citing Emery v. Emery, supra, and Ford's article in 15 University of Pittsburgh Law If it ever is proper for a court to depart from stare decisis, we scarcely can perceive

Review.) of a more-justifiable situation in which to do so. In the first place, the rule being
20 discarded is one lying [138] in the field of conflict of laws as applied to torts so that
Among recent law-review articles and notes approving the holding of one or more of there can hardly have been any action taken by the parties in reliance upon it.
the afore-cited three cases, which have held that immunity from suit based on family Secondly, strong reasons of public policy exist for supplanting such rule by a better
relationship is a matter of family law rather than tort law and should be governed by one which does not unnecessarily discriminate against the citizens of our own state.
the law of the domicile, are: 31 Temple Law Quarterly, 117, 4 Wayne Law Review, 24

79, and 33 Indiana Law Journal, 297. All were published in 1958. The most-compelling argument against taking such step is that it departs from the
21 rule of the Restatement, and disturbs the sought-after ideal of establishing some
The two reasons most often advanced for the common-law rule, that one spouse may uniformity in the conflict-of-laws field. However, as well appears from the cases
not sue the other, are the ancient concept that husband and wife constitute in law but hereinbefore cited, there is a clearly discernible trend away from the rule of the
one person, and that to permit such suits will be to foment family discord and strife. Restatement in so far as it requires that the law of the place of wrong is to be applied
The Married Women's Acts of the various states have effectively destroyed the "one in determining questions of incapacity to sue based on family status. Furthermore, it
person" [137] concept thereby leaving as the other remaining reason for the must be recognized that, in the field of the conflict of laws, absolutes should not be
immunity the objective of preventing family discord. This is also the justification made the goal at the sacrifice of progress in furtherance of sound public policy. The
usually advanced for denying an unemancipated child the capacity to sue a parent, American Law Institute is now engaged in redrafting a revised Restatement of
[3]
brother, or sister. Clearly this policy reason for denying the capacity to sue more Conflict of Laws. In such work of revision the question of whether the law of the
properly lies within the sphere of family law, where domicile usually controls the domicile, rather than the law of the place of wrong, should be applied, in resolving
an issue of interfamily immunity from suit in tort, will undoubtedly receive domicile, and Wisconsin the state of forum. The adoption of the new rule would not
consideration. in theory close the doors of our courts to a nonresident spouse in such a situation
25 instituting suit in Wisconsin. However, the defendant spouse might have [140] a
After most careful deliberation, it is our considered judgment that this court should good defense in bar if he pleaded, and proved, the true state of domicile, and took the
adopt the rule that, whenever the courts of this state are confronted with a conflict- proper steps to bring before the trial court the law of such state granting the
of-laws problem as to which law governs the capacity of one spouse to sue the other immunity.
in tort, the law to be applied is that of the state of domicile. We, therefore, expressly 29
overrule the cases of Buckeye v. Buckeye, supra; Forbes v. Forbes (1938), 226 Wis. Perhaps a word of caution should be sounded to the effect that the instant decision
477, 277 N. W. 112;Bourestom v. Bourestom (1939), 231 Wis. 666, 285 N. W. should not be interpreted as a rejection by this court of the general rule that
426; Garlin v. Garlin (1951), 260 Wis. 187, 50 N. W. (2d) 373; [139] Scholle v. ordinarily the substantive rights of parties to an action in tort are to be determined in
Home Mut. Casualty Co. (1956), 273 Wis. 387, 78 N. W. (2d) 902; andHansen v. the light of the law of the place of wrong. This decision merely holds that incapacity
Hansen (1956), 274 Wis. 262, 80 N. W. (2d) 230. We do not overrule the result in to sue because of marital status presents a question of family law rather than tort law.
the cases ofNelson v. American Employers' Ins. Co. (1951), 258 Wis. 252, 45 N. W. 30

(2d) 681, and 22 A. L. R. (2d) 1244, and Jaeger v. Jaeger (1952), 262 Wis. 14, 53 N. Earlier in this opinion we made a brief reference to our recent decision

W. (2d) 740, but we disapprove of the holding therein that the law of place of injury in Bodenhagen v. Farmers Mut. Ins. Co.In that case a wife domiciled in Wisconsin

controlled the issue of interspousal immunity. instituted suit against the insurer of her husband's automobile to recover for injuries
26 sustained in an automobile accident occurring in Illinois as a result of the alleged
It is interesting to note that, if the rule now adopted had been applied in the first six negligence of the husband. We first looked to Illinois law to determine whether a
cited overruled automobile accident cases, the result in four of such cases would cause of action existed in favor of the plaintiff wife. The Illinois law was interpreted
have been to hold that there was no interspousal immunity from suit, because the by us as holding that its interspousal immunity against suit in tort barred only the
parties were domiciled in Wisconsin. Only in Forbes v. Forbes, remedy and not the cause of action, and, therefore, Wisconsin, as the forum state,
supra, and Bourestom v. Bourestom, supra, would immunity from suit have been would not apply such law. A motion for rehearing was filed subsequent to our
found to exist if the law of the domicile, as interpreted by this court, had been original decision and the brief filed in support thereof caused this court to grant a
applied to such issue. rehearing. The reason for so doing was that we entertained grave doubt as to whether
27 we had reached the right conclusion in holding that under Illinois law the
The Forbes Case is the only one of the eight where the place of wrong was interspousal immunity to suit in tort was procedural and not substantive. Because of
Wisconsin. The parties were nonresidents domiciled in Illinois. For the reasons the result reached in the instant appeal we now find it unnecessary to pass on such
hereinbefore set forth, it is apparent that Illinois rather than Wisconsin was the state last-mentioned point. In an opinion this day handed down in such rehearing in
most concerned with the policy considerations of whether the plaintiff wife had the Bodenhagen Case we have affirmed the original result, but have grounded the
capacity to sue her husband. Furthermore, the plaintiff in the Forbes Case would not same upon the principle [141] herein adopted,i.e., that the law of domicile controls
have fared worse in Wisconsin than she would have in the state of domicile. the issue of interspousal immunity.
28 31
The Bourestom Case involved "forum shopping" which ought to be discouraged The concurring opinion by Mr. Justice FAIRCHILD protests that we should not
rather than tolerated. There Oklahoma was the state of injury, Minnesota the state of adopt the conflict-of-laws rule, that interspousal immunity to suit in tort should be
determined by the law of the domicile, because this was not urged in the briefs or field of conflict of laws than to overrule the Buckeye v. Buckeye line of cases and
arguments of counsel. However, appellant's brief did cite and summarize Emery v. adopt a principle the soundness of which has been commended by so many reputable
Emery, supra,and on the oral argument appellant's counsel also cited Koplik v. C. P. authorities.
Trucking Corp., supra, in which two cases such rule was adopted by the California 34

and New Jersey courts. While the appellant's counsel did not request that we By the Court.Judgment reversed, and cause remanded for further proceedings not

overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin cases dealing inconsistent with this opinion.

with this particular conflict-of-laws problem, he did specifically seek to have this
court apply California's conflict-of-laws principle, that the law of the domicile is
determinative of interspousal capacity to sue, to this particular case. However, to do
so would violate the well-recognized principle of conflict of laws that, where the
substantive law of another state is applied, there necessarily must be excluded such
foreign state's law of conflict of laws. Restatement, Conflict of Laws, p. 11, sec. 7
(b); 11 Am. Jur., Conflict of Laws, p. 296, sec. 3; 15 C. J. S., Conflict of Laws, p.
872, sec. 7; Griswold, Renvoi Revisited, 51 Harvard Law Review, 1165, 1170,
1173;[4] and note in 18 George Washington Law Review, 559.
32
The reason why the authorities on conflict of laws almost universally reject the
renvoi doctrine (permitting a court [142] of the forum state to apply the conflict-of-
laws principle of a foreign state) is that it is likely to result in the court pursuing a
course equivalent to a never-ending circle. For example, in the instant case, if
the Buckeye v. Buckeye line of Wisconsin cases is to be followed, the Wisconsin
court first looks to the law of California to see whether a wife can sue her husband in
tort. California substantive law holds that she cannot. However, California has
adopted a conflict-of-laws principle that holds that the law of the domicile
determines such question. Applying such principle the court is referred back to
Wisconsin law because Wisconsin is the state of domicile. Again the court applies
Wisconsin law and, under the prior holdings of the Buckeye v. Buckeye line of
authorities, would have to again refer to California law because such line of cases
does not recognize that the law of domicile has anything to do with interspousal
immunity, but holds that the law of the state of injury controls.
33
Wisconsin certainly should not adopt the much-criticized renvoi principle in order
not to overrule the Buckeye v. Buckeye line of cases, and still permit the plaintiff to
recover. Such a result we believe would contribute far more to produce chaos in the

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