and again at the close of all the evidence. [ Case. While, of course, the full faith and the defendant moved for a directed verdict credit clause of the federal Constitution does and to dismiss the action for want of juris- not relate to the statutes of a sister jurisdiction. The court overruled the motions diction, and it is everywhere recognized that pro forma and the defendant was allowed the obligation to enforce rights growing exceptions. Several grounds are specified, out of such statutes rests in a sense on the all based, however, on the claim that the statute of Massachusetts under which the plaintiff seeks to recover is a penal statute and is not enforceable in the courts of this state. Chief Justice Marshall has given us the following fundamental maxim of private international law:

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are, in a sense, offenders against the state law as well as against individuals who may be injured by their misconduct. But foreign tribunals do not regard these violations of statute law as offenses against the state unless their vindication rests with the state itself, or with the community which it represents. Penalties may be attached to them, but that circumstance will not bring them within the rule, except in cases where these penalties are recoverable at the instance of the state, or of an official duly authorized to prosecute on its behalf, or of a member of the public in the character of a common informer." Huntington v. Attrill, 8 T. L. R. 341, A. C. 150.

in the international sense, so that it cannot | infringed. All the provisions of municipal statbe enforced in the courts of another state, utes for the regulation of trade and trading depends upon the question whether its pur- companies are presumably enacted in the interpose is to punish an offense against the pub-est and for the benefit of the community at lic justice of the state or to afford a private large; and persons who violate these provisions remedy to a person injured by the wrongful act. It should be noted that the rule embraces not only prosecutions and sentences for crimes and misdemeanors, but all suits in favor of the state for the recovery of pecuniary penalties for the violation of municipal laws. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239. By this classification penal laws which cannot be enforced extraterritorially are confined to laws defining and punishing offenses against the state. Huntington v. Attrill, supra; Dennick v. Central R. R. Co., 103 U. S. 17, 26 L. Ed. 441. The trend of modern decision is very well The rule laid down in Huntington v. At-stated in 21 R. C. L. 225, where it is said trill has been reaffirmed in Northern Pacific that the test whether a law is penal, in the R. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. strict and primary sense, is whether the Ct. 978, 38 L. Ed. 958, and Brady v. Daly, wrong sought to be redressed is a wrong to 175 U. S. 148, 20 Sup. Ct. 62, 44 L. Ed. 109. the public or a wrong to the individual; that It has been adopted and followed by severa distinction has been made between statutes al state courts in their later decisions. See which are entirely penal, their sole purpose Gulledge Bros. Lbr. Co. v. Wenatchee Land being to punish a violation of the law for Co., 122 Minn. 266, 142 N. W. 305, 46 L. R. the public benefit, and those which are in A. (N. S.) 697; Louisville & N. R. Co. V. part compensatory, the violator being reMcCaskell, 98 Miss. 20, 53 South. 348; Loucks quired to make good to an individual a posv. Standard Oil Co., 224 N. Y. 99, 120 N. E. sible loss having some connection with his 198. In Hill v. Boston & Maine R. R., 77 default; and that it is universally held that N. H. 151, 89 Atl. 482, Ann. Cas. 1914C, 714. statutes of the former character can be exethe rule in Huntington v. Attrill is quoted cuted only by the sovereignty enacting them; with approval, the court saying that where but that by the weight of later authority, the controlling purpose of a statute is to and by the better reason, actions may be impose a punishment for violating its pro- maintained anywhere to enforce the liability visions it will not be enforced in a foreign to an individual created by statutes of the jurisdiction; but that a statute within this latter kind. Huntington v. Attrill, then rerule may be penal in one aspect and remedial cently decided, was not cited in Adams v. in another. In Great Western Mac. Co. V. Fitchburg R. R. Co., and evidently was not Smith, 87 Kan. 331, 124 Pac. 414, 41. L. R. considered. However, it was before the A. (N. S.) 379, Ann. Cas. 1913E, 243, it was Court in Farr v. Briggs' Estate, 72 Vt. 225, said that the rule that a penal statute of 47 Atl. 793, 82 Am. St. Rep. 930, and the rule another state will not be enforced applies only to statutes entirely penal, and not to those that are in part compensatory. То the same effect is Southern Ry. Co. v. Decker, 5 Ga. App. 21, 62 S. E. 678.

The question involved in Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, was before the judicial committee of the Privy Council of England upon an appeal from Canada in a suit between the same parties. Lord Watson delivered the opinion of the judges, among whom was Chancellor Halsbury, in which it was held that the action was not, in the sense of international law, penal, or, in other words, an action in behalf of the government or community of the state of New York for punishment of an offense against their municipal law. Among other things he said:

"A proceeding, in order to come within the scope of the rule, must be in the nature of a suit in favor of the state whose law has been

now under consideration was quoted, though

not expressly approved. The distinction on

which the rule is based is recognized in sev

eral of our cases. Thus in Hubbell v. Gale, 3 Vt. 266, an action by a common informer of a third person under a statute then in to recover usury received by the defendant force, the court said.

"The statute is partly remedial, and partly penal; remedial as to the right given to the party paying to recover back the money, and penal as to the right for any other person to sue for it, on his neglect. Where a statute gives an action to a stranger to recover a forfeiture, he is a common informer and the action a penal action; though it is otherwise where the statute gives damages, either single or accumulative, as a compensation to the party aggrieved."

To much the same effect is White v. Comstock, 6 Vt. 405, and Moore v. Jones, 23 Vt. 739, Fed. Cas. No. 9768. Burnett v. Ward,

42 Vt. 80, reviews the earlier cases and state where the statute was enacted. While points out the distinction between actions the Supreme Judicial Court of Massachusetts strictly penal and actions for the recovery of has characterized this and similar statutes damages in the nature of a penalty. The as penal for some purposes, it has not meant reasoning in Burnett v. Ward is referred to to hold that they are penal for every purpose. with approval in Guild v. Prentis, 83 Vt. 212, Indeed, it is stated in Boott Mills v. B. & 217, 74 Atl. 1115, Ann. Cas. 1912A, 313, where M. R. R., 218 Mass. 582, 106 N. E. 680, that the statute giving the party injured treble whether they are penal in the international damages for cutting trees without leave sense is left an open question. This graof the owner was considered and held not a tuitous suggestion carries a pretty broad hint penal statute. We have other cases, holding, that that court does not regard the statute in effect, that a statute giving a party ag- as strictly penal. But it is the court appealgrieved the right to recover cumulative dam-ed to that must determine whether the forages, or a fixed compensation for an injury, eign statute whose enforcement is sought is though denominated a forfeiture, is a re- of such a character, in view of its evident medial and not a penal statute. Newman v. purpose, that it in effect requires the impoWaite, 43 Vt. 587; Spaulding v. Cook, 48 Vt.sition of punishment for a crime against the 145; Lewis v. Brainerd, 53 Vt. 510; Payne v. laws of another state, or whether it only reSheets, 75 Vt. 335, 349, 55 Atl. 656. The quires the vindication of private statutory rule laid down in Huntington v. Attrill is not rights of a transitory nature. Hill v. B. & out of harmony with the views generally ex-M. R. R., supra; Loucks v. Standard Oil Co., pressed in our cases and furnishes, we think, supra; Huntington v. Attrill, supra. a satisfactory test whether the statute in question is penal in the international sense. [2] The statute declared on provides:

Viewing the statute in the light of the policy and purpose disclosed by the history of legislation in Massachusetts respecting

"If a person or corporation by his or its neg-liability for death by wrongful act (as to

ligence, or by the gross negligence of his or its agents or servants, while engaged in his or its business, causes the death of a person who is in the exercise of due care and not in his or its employment or service he or it shall be liable in damages in the sum of not less than five hundred nor more than five thousand dollars to be assessed with reference to the degree of his or its culpability or that of his or its agents or servants, to be recovered in an action of tort, commenced within one year after the injury which caused the death, by the executor or administrator of the deceased, onehalf thereof to the use of the widow and onehalf to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin." Revised Laws of Mass. c. 171, § 2.

It must be conceded that this statute is in one sense penal. The damages are not limited to compensation, but are proportional to the defendant's guilt. A minimum recovery of $500 is allowed in any case, and the damages in excess of that sum are to be assessed with reference to the degree of defendant's culpability. It was upon this view of the statute involved in Adams v. Fitchburg R. R. Co. that the court declined to retain jurisdiction. But, as we have seen, that is not the true test of the character of the statute in determining the question whether it is a penal statute within the rules of private international law. One defect in the reasoning of the Adams Case is the assumption that the decisions of the courts of Maszachusetts respecting the nature of the action bind the courts of this state upon the question of their jurisdiction. For obvious reasons the question presented to the court of another jurisdiction could not arise in the

which see Hudson v. Lynn & Boston R. R. Co., 185 Mass. 510, 71 N. E. 66, and Brooks v. Fitchburg, etc., St. Ry. Co., 200 Mass. 8, 86 N. E. 289), we think it is manifest that it is remedial in character and not penal in the international sense. Massachusetts is one of the very few states that have not adopted the essential features of Lord Campbell's Act. But for these statutes, no provision has there been made for the recovery of damages in such a case by the widow and next of kin. This fact and a study of the development of the statutes lead to the irresistible conclusion that the dominant purpose running through all this legislation is reparation to the family. Punishment of the wrongdoer is only incidental to the redress afforded for a private wrong. The character of the statute, in the sense we are now considering, is not dependent upon the nature of the damages. They may be compensatory or punitive, according to the statutory scheme, and the remedy be private or civil, and not public or penal. Loucks v. Standard Oil Co., supra.

[3] Thus far we have considered only whether the statute is penal or remedial in the international sense. It remains to consider whether the action, being private, and therefore transitory, is consistent with public policy as expressed by the laws of this state. Whether our courts will entertain an action on this statute depends upon the general principles to be applied in determining whether actions founded upon the laws of other states will be heard here. The general rule is that when the action is transitory, and the right has become fixed and liability been incurred in the state where the transaction occurred, such right of action

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gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff get what belongs to him. We tion of a problem is wrong because we deal are not so provincial as to say that every soluwith it otherwise at home. ** * *The courts are not free to refuse to enforce a foreign right at the pleasure of the judges to suit the individual notion of expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common

may be pursued and such liability enforced [of action is property. If a foreign statute in any court which has jurisdiction of such matters and can secure jurisdiction of the parties, provided that the statute of the state under which the cause of action arose is not inconsistent with the public policy of the state in which the cause of action is sought to be enforced. Dennick v. Central R. R. Co., 103 U. S. 11, 26 L. Ed. 439, and cases cited in note, 14 Am. St. Rep. 354; Hill v. B. & M. R. R., supra; Loucks v. Standard Oil Co., supra; Higgins v. Cen. N. E. & W. R. Co., 155 Mass. 176, 29 N. E. 534, 31 Am. St. Rep. 544; note, Ann. Cas. 1913D, 570. As said in Loucks v. Standard Oil Co., the fundamental public policy, at least among the states of the Union, is that rights lawfully vested shall be everywhere maintained. The decisions manifest a growing conviction that only exceptional circumstances should lead one of the states to refuse to enforce a right acquired in another.

[4] Comity does not require us to enforce the law of a foreign jurisdiction which is contrary to pure morals or to abstract justice, or to enforce which would be contrary to our own public policy. Some states decline to administer foreign laws unless close ly analogous to their own. But the view we have taken is that a court should not, in otherwise proper cases, refuse to apply the law of a foreign state, however unlike its own, unless it be contrary to pure morals or abstract justice, or unless the enforcement would be of evil example and harmful to its own people. Morrisette v. Canadian Pac. Ry. Co., 76 Vt. 267, 272, 56 Atl. 1102. Tested by this rule, no good reason exists for refusing to enforce this statute. While it is in some respects unlike our own, consid erations of public policy do not require the courts of this state to refuse to lend their aid. The only essential difference from our statute is in the character of the damages; but we have no policy that prohibits punitive damages. They are, with us, a familiar feature of tort actions. It is said in Cuba R. R. Co. v. Crosby, 222 U. S. 473, 478, 32 Sup. Ct. 132, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40, that the law of the forum is material only as setting a limit of policy beyond which such obligations will not be enforced there. The minimum recovery fixed by the statute is not unreasonable; but it is the nature of the cause of action and not so much the character of the damages that furnishes the real test. See Loucks v. Standard Oil Co., supra; A., T. & S. F. R. Co. v. Sowers, 213 U. S. 55, 29 Sup. Ct. 397, 53 L. Ed. 695. The precise question involved here was before the Court of Appeals of New York in Loucks V. Standard Oil Co. They said:

"Our scheme of legislation may be different We may even have no legislation on the subject. That is not enough to show that public policy forbids us to enforce the foreign right. A right

107 A.-26

weal."

Courts sometimes refuse to act where all the parties are nonresidents. See Morrisette v. Canadian Pac. Ry. Co., 76 Vt. 267, 272, 56 Atl. 1102. But in this case the parties interested are all residents of Vermont. The kin of the deceased are without remedy except what the Massachusetts statute affords. See Needham v. Grand Trunk Ry. Co., 38 Vt. 294; 8 R. C. L. 736. The ends of justice would not be served by sending them to that state to litigate this matter. Besides, there is no certainty that a suit there would be possible, as it is conceivable that the defendant could not be found in that jurisdiction. We reach the conclusion that the trial court did not err in overruling the defendant's motions. So far as Adams v. Fitchburg R. R. Co. conflicts with this result, it is overruled.

[5] The defendant was the proprietor of a garage at Brattleboro and personally oper ated the automobile on the trip. There was a conflict in the testimony as to the time when the party left Brattleboro, the plaintiff's evidence tending to show that it was about 9 o'clock in the evening and the defendant's evidence that it was about an hour earlier. It appeared that the distance from Brattleboro to Springfield was from 60 to 65 miles and the distance from Springfield to the place of the accident about 28. miles. Plaintiff's evidence tended to show that a stop of some 30 minutes was made in Springfield. Different witnesses were asked to fix the time of the accident. They varied in their estimates between 11:15 and 12 o'clock. The defendant testified that he left Springfield about 10:20 and that the accident oc-curred about 11:45. Against defendant's objection that the evidence was irrelevant and immaterial, the plaintiff was permitted to show by Mr. Stone that the defendant said on arriving at Springfield that he had been just 2 hours and 10 minutes on the road. The exception taken is without merit, as the defendant himself testified to the same thing in his direct examination.

[6] Subject to the same objection plaintiff was permitted to show by this witness that defendant was running faster on the return trip than going down, and by Mr. Harrington that defendant was running 30 miles an hour

dence makes it legally relevant. See Tyrrell v. Goslant, 106 Atl. 585, decided at the January term, but not yet officially reported. Both Stone and Harrington testified that the defendant maintained at least as high a rate of speed over the whole distance to the underpass, and the circumstances tend to corroborate their testimony. The road was level, smooth, and straightaway to the turn through the underpass. The automobile following came on at a slower rate and reached the underpass from 5 to 8 minutes after the accident, according to the defendant's own testimony. The defendant testified that he was unaware of the proximity of the underpass and was within 6 or 7 feet of the abutment before he discovered it. While he testified that he encountered thick fog near the underpass and slowed down to about 8 miles an hour, the force of the impact when the car struck the abutment disproves his claim as to the speed he was then driving.

"and a little bit higher, off and on," on the trip down. It may be admitted that the rate of speed at which the defendant was driving on the trip from Brattleboro to Springfield was of doubtful relevancy in any view of the case; but it does not follow that the exceptions present reversible error. Both witnesses testified without objection that the car was going at the rate of 35 to 40 miles an hour at the time it struck the abutment. The theory on which the court admitted the evidence apparently was that it afforded a basis by comparison for their estimate of the rate of speed at the time of the accident. Nothing further was claimed for it. It was not relied upon as tending otherwise to show the speed of the car at or just before the time of the accident. The court expressly instructed the jury that it was not a question of how the defendant ran going down to Springfield, or how he ran somewhere else, but how he was running and operating the car as he approached the underpass. But we do not need to consider whether the evidence was admissible for the purpose of comparison. All that the witnesses testified to under exception otherwise appeared in the case without objection.ject was appropriate to a case of ordinary The distance from Brattleboro to Springfield negligence, and as such its sufficiency is not was given as 60 to 65 miles, and the defend- questioned. Defendant claims that there ant put in evidence the time taken to cover was evidence tending to show that he was it as 2 hours and 10 minutes. It would thus carrying plaintiff's intestate free of charge, appear that the rate of speed was what the and that he was prejudiced by the failure witness Harrington gave as indicated from of the court to distinguish between the care time to time by the speedometer. This being which he would be bound to exercise in carso, if the evidence of the rate of speed on the rying a passenger for hire and in carrying trip down was inadmissible, it was harmless. one gratuitously. He cites Massaletti v. It is suggested by the plaintiff that the ques- Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. tion is not reviewable, being merely a ques- A. 1918C, 264, Ann. Cas. 1918B, 1088, to the tion of remoteness and so addressed to the proposition that under the law of Massadiscretion of the trial court. While the ques-chusetts different degrees of care would be retion of remoteness ordinarily rests in the discretion of the trial court, it should be observed that there are well-recognized exceptions to the rule. See Smith v. Martin, 106 Atl. 666.

[7] Other evidence of the speed at which defendant was driving at a distance from the point of the accident presents a some what different question. It appeared that the defendant overtook and passed another automobile at a point on the highway from 11⁄2to 2 miles south of the underpass. Under objection and exception that the evidence was irrelevant and immaterial the plaintiff was permitted to show by Mr. Stone and the three occupants of the other car that defendant was then running from 35 to 40 miles an hour, and by the occupants of the latter car that they proceeded toward the underpass at from 18 to 20 miles an hour. It is urged that this evidence had no tendency to show at what rate of speed the defendant was driving as he approached the underpass. Standing alone, this would undoubtedly be so, but other evi

[8] The defendant excepted to the failure of the court, in its charge as to what constituted negligence, "to make a distinction between carrying passengers for hire and carrying them gratuitously." The charge on this sub

quired in the different circumstances. The question is controlled by the law of that jurisdiction, and it is undoubtedly true that the same degree of care is not there ordinarily required of a gratuitous bailee as of a bailee for hire, and that the measure of ordinary liability of one who undertakes to carry gratis is the same as that of one who undertakes to keep gratis. Massaletti v. Fitzroy, supra. Plaintiff's answer to this claim is that there was no foundation in the evidence for even an inference that the defendant undertook to perform this service gratuitously. It must be conceded that the evidence had little, if any, such tendency, but we do not spend time upon that question, as the exception must be overruled for other and perfectly obvious reasons.

There would be much force in the defendant's claim if an occupánt of the car were suing for personal injuries. Such person would have the common-law right of action subject to the rule the defendant contends for. But defendant's liability in this action is such as the statute imposes and depends