389 CONFLICT OF LAWS IN AUTOMOBILE NEGLIGENCE CASES Questions frequently arise in the various provinces of Canada, and no doubt in the various states of the United States, in respect to liability for accidents, in which, for instance, a foreign owned car is involved or the accident happens to a local resident while in a foreign country. This article will treat only of the law of Ontario, but as we enjoy, in common with the other provinces, the benefit of the English common law, including the rules of English private international law, it may be that a review of the situation here will be of more than local, interest. No attempt will be made to -state the law of any of the states of the United States but references will be made to American authorities on some points, which citat'ons may be useful for comparison, if nothing more. The basis for this discussion must rest upon the general proposition that no province or state has any extra-territorial jurisdiction, all legislation being prima facie territorial. The legislative body of any state in enacting legislation makes such legislation binding solely upon those ordinarily resident within the boundaries of such state, and those of other states who bring themselves for the time being within the boundaries of such legislating state. The view of the American law appears to be that set forth in Professor Goodrich's Handbook on the Conflict of Laws, which is as follows : A state may, through its duly authorized Courts, render a Judgment in personam against individuals subject to its jurisdiction . If a Court . renders a, personal judgment against one not subject to its jurisdiction, the judgment is not entitled to recognition in other states. In this country it is invalid where rendered, also, as contrary to due process of law.' The Ontario cases would seem to indicate that the courts here regard Professor Goodrich's view as a correct statement of American law on this point. The law of Ontario, following English precedent, has assumed extra-territorial jurisdiction in certain cases, and in those cases permits the service of a Writ of Summons out of the jurisdiction where the person to be served is a British subject, or if-not, a .notice in lieu of Writ, as only British subjects are amenable to process issued in the name of His Majesty the 'King. The only 1 Page 131, sec. 70. 390 The Canadian Bar Review [No. 5 case of extra-territorial jurisdiction which is applicable to the subject under discussion is the Ontario Rule of Practice 25(g), which permits such extra-territorial service where "the action is founded on a tort committed within Ontario". This is under- standable, because the wrongdoing being committed here, the. lex loci delicti commissi is assumed to give jurisdiction . If the accident happens in a foreign state but action is brought in Ontario against persons residing within Ontario, the question then is what law is applicable and whether action lies at all. Our Courts have recognized and accepted the principles as laid down in England, which principles are set forth in Dicey on The Conflict of Laws,2 namely, that where an act done in a foreign country is a tort it is actionable as such in England if it is both :- 1. Wrongful, i.e., not justifiable according to the law of the foreign country where it was done, and 2. Wrongful, i.e., actionable as a tort according to English law, or, in other words, is an act which if done in England would be a tort. The word `wrongful' bears a somewhat different sense in the two clauses of this Rule. In clause 1 it means an act which is not innocent or excusable, or, in other words, which is either actionable or punish- able according to the law e.g., Italy, where it was done; in clause 2 it means an act which if done in England, would according to the law of England be actionable. The above rules are taken by Dicey from the judgment of Willes J. in the leading case of Phillips v. Eyre.' From the above it will be seen that to decide if an act committed in a foreign country is to be regarded as an actionable tort here, it is necessary to take into consideration both the law of the country where the act is committed (lex loci delicti commissi) and also the law of the country where the action is brought (lex fori) . The rule in the United States would seem to be different, as Goodrich's Handbook, reads as follows:- The general rule is that the law governing the creation and extent of tort liability is that of the place where the tort was committed. In England the doctrine is modified so that there may be recovery in England if the act complained of was not justifiable where done and would have been actionable if committed in England. There is no American authority for the modification .4 See also the following :- while there is some division of opinion, the better view is that questions pertaining to the elements of damages recoverable are matters 2 5th ed., p. 771 . a (1870), L.R. 6 Q.$. 1. 4 Page 188, sec. 92. May 1936] Conflict of Laws in Automobile Negligence Cases 391 of substance and not matters of procedure . In tort, the law of the place of injury determines what items are recoverable, in contract, the law of the place where the contract was to be performed controls 5 The above view is sustained by such cases as Western Union Telegraph Co. v. Browns where the late_ Mr. Justice Holmes states:-- It is established as the law of this Court that when a person recovers in one jurisdiction for a tort committed in another he does so on the ground of an obligation incurred, at the place of the tort that accompanies the person of the Defendant elsewhere and that is not only the ground but the measure of the maximum recovery. See also Loucks v. Standard Oil Co.,' and Commonwealth Fuel Co. v. McNeil," which hold that the generally accepted view in the United States is that if the act is a tort where committed, it may be sued upon in another state having jurisdiction over the defendant, irrespective of whether it was a tort in that state. The American view seems to be more reasonable on the whole than that followed in England and Canada, differing, as it does from the English view which inserts the further proviso that the tort must also be wrongful in the country or state in which the action is brought. Before going further, it might be well to point out, as Westlake does,, that, unless otherwise proved, foreign law is presumed to be the same as English law, excluding those parts of the latter which only exist as special institutions with special machinery, as bankruptcy:-the existence and operation . of such institutions in any foreign country, and in other respects'the difference between foreign and English law must be averred and proved by any party, plaintiff or defendant, who relies on it, and if the proof fails, English law will be applied. Goodrich's Handbook is to the same effect: In the absence of a Statute, courts of one state do not take judicial notice of the law o£ another. If the foreign law is not proved, a presump- tion is frequently made that the foreign law is the same as that of the forumi° The next point is as to what law governs the defences available. Dicey, Conflict of Laws, says:11 Page 179. 1 234 U.S . 542 at p. 547. 7 (1.918), 224 N.Y. 99. 8 103 Conn. 390. 9 WESTLAKE, PRIVATE INTERNATIONAL LAW, 7th ed., p. 423 . 1.° Page 162, sec. 83 . 11 At p. 772. 392 The Canadian Bar Review [No. 5 Any defence to the action which is valid under English law, is, of course available to the Defendant, although such a defence would not be accepted by the law of the country in which the tort took place. Thus in an action for libel the fact that the words complained are true will be a good defence in an action in England, although such a defence might not be sufficient in the country in which the words were spoken . The penalty in the shape of damages will depend on English law as the lex loci fori, but will, of course, be based on the nature of the act done abroad . So also English law would be applied to assess damages for death abroad, though under the foreign law some special rule applied ; con- trast Slater v. Mexican National R. Co. (1904), 194 U.S. 120, where Fuller C.J. dissented, evidently agreeing with English law . On these points compare Goodrich, who states:- No action may be brought for injuries resulting in death of a human being unless an action is given by the law of the state where the injury occurred. The now prevailing view is that a claim for damages for death by a wrongful act may be sued upon wherever the Defendant is subject to suit12 In every case where it is to be decided whether the act is "justifiable" by the law of the foreign state, that law must be proved, and it can only be proved, as we all know, by expert evidence, i.e., evidence given by qualified persons as to the law there applicable. This doctrine has been recognized in our courts many times, but perhaps it is sufficient to refer to a comparatively recent case, Key v.