473

placed upon this power to rule aesthetics by government —

opening the door to the invasion by majority rule of a great deal
of territory that belongs to the individual human being. It was
once said of a famous lady of history that she had so much taste,
and all of it so bad. Individual taste, good or bad, should
ordinarily be let alone by government.
In authorizing the regulation of setback lines, yard areas,
height of buildings and many permitted uses, the dominant factor
has often been and should be aesthetic. But it is important not
to allow general or unlimited power in government to regulate
aesthetics in zoning or other departments of municipal adminis-
tration. Extending aesthetic factors to the regulation of clothes-
lines suggests that zoning power, in the future, may extend to
many other types of regulation also, since municipal boards and
councils are being authorized in large degree to impose their
ideas of aesthetics, and may be expected to do so on an expand-
ing scale to placate the wishes of other property owners who
constitute a larger segment of the electorate. Unless clothes-
lines create traffic or health hazards, it seems, to me that they
should not be interfered with by law in suburban or rural areas.
More important than this, however, does it seem that extensions
of categories of local legislation for purely aesthetic purposes
should be defined and limited, and, if they are to be enlarged, it
should not be under reasoning which sets no ascertainable
bounds to what can be done or attempted under this power.
The judgments of conviction of appellants should be reversed
and the charges against them dismissed.
Chief Judge Desmond and Judges D'ye, Burke, Foster and
Scileppi concur with Judge Fuld ; Judge Van Voorhis dissents
in an opinion. ________
Judgment affirmed!

Georgia W. Babcock, Appellant, v. Mabel B. Jackson, as

Executrix of William H. Jackson, Deceased, Respondent.
Argued January 23, 1963; decided May 9, 1963.
474

John M. Regan for appellant. I. Under the pertinent deci-

sions of the courts of Ontario and the Supreme Court of Canada,
the Ontario guest statute is a remedial law, the operation and
force of which is limited to the courts of Ontario only; it is a
guest statute which does not purport to excuse or to exonerate
negligent conduct. New York courts should follow this charac-
terization or classification in its choice of law rules and should
 475

apply local remedies to the facts in the complaint. (Kilberg v.

Northeast Airlines, 9 N Y 2d 34; Mertz v. Mertz, 271 N. Y.
466; Murray v. New York, O. & W. R. R. Co., 242 App. Div.
374; Metcalf v. Reynolds, 267 N. Y. 52; McLean v. Pettigrew,
[1945] 2 D. L. R. 65; Quick v. Robinson, [1936] Ont. W. N. 490;
Coutts v. Smith, [1949] Ont. W. N. 155; Master v. Horowitz,
262 N. Y. 609; Smith v. Clute, 277 N. Y. 407; Naphtali v. Lafazan,
8 A D 2d 22, 8 N Y 2d 1097; Davenport v. Webb, 11 N Y 2d 392.)
II. When there is a reference to the law of a foreign State,
that reference should include the conflict of laws rules of that
State where policy legislation is concerned. (Dean v. Dean,
241 N. Y. 240; Ball v. Cross, 231 N. Y. 329; Phillips v. Eyre,
[1870] L. R. 6 Q. B. 1; Richards v. United States, 369 U. S. 1.)
III. The conflict rule in tort cases should be modified so as to
permit a choice of law to be predicated upon a proper law of
the tort theory. (Auten v. Auten, 308 N. Y. 155; Walton v.
Arabian Amer. Oil Co., 233 F. 2d 541.) IV. New York public
policy, as expressed in the Motor Vehicle Financial Security
Act of 1956 (L. 1956, ch. 655; Vehicle and Traffic Law, art. 6-A,
as amd.), precludes enforcement of the Ontario guest statute.
(Carroll v. Lanza, 349 U. S. 408; Magnolia Petroleum Co. v.
Hunt, 320 U. S. 430; Pacific Ins. Co. v. Commission, 306 U. S.
493; Grant v. McAuliffe, 41 Cal. 2d 859; Schmidt v. Driscoll
Hotel, 249 Minn. 376; Osborn v. Borchetta, 20 Conn. S. 163.)
V. The facts pleaded in the complaint state a possible cause of
action in contract. (Siegel v. Spear & Co., 234 N. Y. 479; Dyke
v. Erie Ry. Co., 45 N. Y. 113.) VI. The complaint alleges an
injury and an accident which occurred in part at least off the
highway. Under governing Ontario law, the Ontario guest
statute does not regulate negligent motor vehicle injuries which
occur off the highway. (Hall v. Bardol, 260 App. Div. 982.)
VII. To deprive this plaintiff of all remedies against this
defendant for the wrong he has done her is a denial of due
process of law and is unconstitutional under the Constitutions
of the State of New York and the United States. (Backus v.
Fort St. Union Depot Co., 169 U. S. 557; Brearley School v.
Ward, 201 N. Y. 358; Myer v. Myer, 271 App. Div. 465, 296
N. Y. 979; Ludwig v. Johnson, 243 Ky. 533; Stewart v. Houk,
127 Ore. 589.)
Ellsworth Van Graafeiland for respondent. I. Since plaintiff
has no cause of action in Ontario, she has none in New York.
476

(Commissioners of Palisades Interstate Park v. Lent, 240 N. Y.

1; Leighton v. Roper, 300 N. Y. 434; Boehm v. Gridley & Sons,
187 Misc. 113; Whitford v. Panama R. R. Co., 23 N. Y. 465;
Davenport v. Webb, 11 N Y 2d 392; De Rosa v. Slattery Contr.
Co., 12 N Y 2d 735; Salimoff & Co. v. Standard Oil Co., 262
N. Y. 220; Poplar v. Bourjois, Inc., 298 N. Y. 62; Kilberg v.
Northeast Airlines, 9 N Y 2d 34; Bullis v. Burke, 7 A D 2d 959;
Pearson v. Northeast Airlines, 307 F. 2d 131; Grant v. McAuliffe,
41 Cal. 2d 859; Haumschild v. Continental Cas. Co., 7 Wis. 2d
130.) II. The English conflict of law rule covering foreign
torts has no place in this case. (McLean v. Pettigrew, [1945]
2 D. L. R. 65; Loucks v. Standard Oil Co., 224 N. Y. 99; Lann v.
United Steel Works Corp., 166 Misc. 465; Hobbs v. Firestone
Tire & Rubber Co., 195 F. Supp. 56; Klaxon Co. v. Stentor Co.,
313 U. S. 487; Richards v. United States, 369 U. S. 1.) III. The
Ontario statute goes to the substance of appellant’s claim.
(Lauterbach v. Fleischer, 16 A D 2d 701; Baldwin v. Powell,
294 N. Y. 130; Jacobus v. Colgate, 217 N. Y. 235; Matter of Meng,
227 N. Y. 264; Fitzpatrick v. International Ry. Co., 252 N. Y.
127.) IV. The judgment appealed from does not contravene the
public policy of New York. (Silver v. Silver, 280 U. S. 117;
Cherwien v. Geiter, 272 N. Y. 165; Haag v. Barnes, 9 N Y 2d
554; Mertz v. Mertz, 271 N. Y. 466; Fear- on v. Treanor, 272 N. Y.
268; Cannon v. Cannon, 287 N. Y. 425; Master v. Horowitz, 262
N. Y. 609; Metcalf v. Reynolds, 267 N. Y. 52; Ritchey v. Crudelle,
255 App. Div. 886.) V. This court should not reverse on
theories not urged below and which are without merit. (Flagg
v. Nichols, 307 N. Y. 96; Master v. Horowitz, 237 App. Div. 237,
262 N. Y. 609; Loehr v. East Side Omnibus Corp., 259 App. Div.
200, 287 N. Y. 670; Hall v. Bardol, 285 N. Y. 726.) VI. Precedent
in other jurisdictions supports affirmance. (Kaiser v. North,
292 Mich. 49.)
Fuld, J. On Friday, September 16, 1960, Miss Georgia
Babcock and her friends, Mr. and Mrs. William Jackson, all
residents of Rochester, left that city in Mr. Jackson’s auto-
mobile, Miss Babcock as guest, for a week-end trip to Canada.
Some hours later, as Mr. Jackson was driving in the Province
of Ontario, he apparently lost control of the ear; it went off
the highway into an adjacent stone wall, and Miss Babcock was
seriously injured. Upon her return to this State, she brought
 477

the present action against William Jackson, alleging negligence

on his part in operating his automobile.1
At the time of the accident, there was in force in Ontario a
statute providing that ‘‘ the owner or driver of a motor vehicle,
other than a vehicle operated in the business of carrying pas-
sengers for compensation, is not liable for any loss or damage
resulting from bodily injury to, or the death of any person being
carried in * * * the motor vehicle ” (Highway Traffic Act
of Province of Ontario [Ontario Bev. Stat. (1960), eh. 172],
§ 105, subd. [2]). Even though no such bar is recognized under
this State’s substantive law of torts (see, e.g., Higgins v. Mason,
255 N. Y. 104, 108; Nelson v. Nygren, 259 N. Y. 71), the defend-
ant moved to dismiss the complaint on the ground that the law
of the place where the accident occurred governs and that
Ontario’s guest statute bars recovery. The court at Special
Term, agreeing with the defendant, granted the motion and the
Appellate Division, over a strong dissent by Justice Halpern,
affirmed the judgment of dismissal without opinion.
The question presented is simply drawn. Shall the law of the
place of the tort2 invariably govern the availability of relief for
the tort or shall the applicable choice of law rule also reflect a
consideration of other factors which are relevant to the purposes
served by the enforcement or denial of the remedy?
The traditional choice of law rule, embodied in the original
Bestatement of Conflict of Laws (§ 384), and until recently
unquestioningly followed in this court (see, e.g., Poplar v.
Bourjois, Inc., 298 N. Y. 62, 66; Kaufman v. American Youth
Hostels, 5 N Y 2d 1016, modfg. 6 A D 2d 223), has been that the
substantive rights and liabilities arising out of a tortious occur-
rence are determinable by the law of the place of the tort. (See
Goodrich, Conflict of Laws [3d ed., 1949], p. 260; Leflar, The
Law of Conflict of Laws [1959], p. 207; Stumberg, Principles
of Conflict of Laws [2d ed., 1951], p. 182.) It had its conceptual
foundation in the vested rights doctrine, namely, that a right to
recover for a foreign tort owes its creation to the law of the
1. Jackson having died after the commencement of the suit, his executrix
was substituted in his place as defendant.
2. In this case, as in nearly all such cases, the conduct causing injury and the
injury itself occurred in the same jurisdiction. The phrase “ place of the tort,”
as distinguished from “place of wrong” and “place of injury,” is used herein
to designate the place where both the wrong and the injury took place.
478

jurisdiction where the injury occurred and depends for its exist-
ence and extent solely on such law. (See Hancock, Torts in the
Conflict of Laws [1942], pp. 30-36; Beese, The Ever Changing
Buies of Choice of Law, Nederlands Tijdschrift Voor Interna-
tionaal Beeht [1962], 389.) Although espoused by such great
figures as Justice Holmes (see Slater v. Mexican Nat. R. R. Co.,
194 U. S. 120) and Professor Beale (2 Conflict of Laws [1935],
pp. 1286-1292), the vested rights doctrine has long since been
discredited because it fails to take account of underlying policy
considerations in evaluating the significance to be ascribed to
the circumstance that an act had a foreign situs in determining
the rights and liabilities which arise out of that act.3 ‘1The vice
of the vested rights theory ”, it has been aptly stated, “ is that
it affects to decide concrete cases upon generalities which do not
state the practical considerations involved ”. (Yntema, The
Hornbook Method and the Conflict of Laws, 37 Yale L. J. 468,
482-483.) More particularly, as applied to torts, the theory
ignores the interest which jurisdictions other than that where
the tort occurred may have in the resolution of particular issues.
It is for this very reason that, despite the advantages of cer-
tainty, ease of application and predictability which it affords
(see Cheatham and Beese, Choice of the Applicable Law, 52 Col.
L. Bev. 959, 976), there has in recent years been increasing
criticism of the traditional rule by commentators 4 and a judicial
trend towards its abandonment or modification.5
3. See Cavers, A Critique of the Choiee-of-Law Problem, 47 Harv. L. Rev.
173, 178; Cheatham, American Theories of Conflict of Laws: Their Role and
Utility, 58 Harv. L. Rev. 361, 379-385; Cook, The Logical and Legal Bases of
the Conflict of Laws, 33 Yale L. J. 457, 479 et seq.) Hill, Governmental Interest
and the Conflict of Laws, 27 U. Chi. L. Rev. 463; Lorenzen, Territoriality, Public
(Policy and the Conflict of Laws, 33 Yale L. J. 736, 746-749; Yntema, The
Hornbook Method and the Conflict of Laws, 37 Yale L. J. 468, 474 et seq.
4. See Dicey, Conflict of Laws (7th ed., 1958), p. 937 et seq.) Leñar, The
Law of Conflict of Laws (1959), p. 217 et seq.) Stumberg, Principles of
Conflict of Laws (2d ed., 1951), p. 201 et seq.) Morris, The Proper Law of a
Tort, 64 Harv. L. Rev. 881; Ehrenzweig, Guest Statutes in the Conflict of
Laws, 69 Yale L. J. 595; Currie, Survival of Actions: Adjudication versus
Automation in the Conflict of Laws, 10 Stan. L. Rev. 205.
5. See, e.g., Richards v. United States, 369 U. S. 1, 12-13; Grant v. McAuliffe,
41 Cal. 2d 859; Schmidt v. Driscoll Hotel, 249 Minn. 376; Haumschild v.
Continental Cas. Co., 7 Wis. 2d 130.
 479

Significantly, it was dissatisfaction with u the mechanical

formulae of the conflicts of law ” (Vanston Committee v. Green,
329U. S. 156, 162) which led to judicial departure from similarly
inflexible choice of law rules in the field of contracts, grounded,
like the torts rule, on the vested rights doctrine. According to
those traditional rules, matters bearing upon the execution, inter-
pretation and validity of a contract were determinable by the
internal law of the place where the contract was made, while
matters connected with their performance were regulated by
the internal law of the place where the contract was to be per-
formed. (See Swift & Co. v. Bankers Trust Co., 280 N. Y. 135,
141; see, also, Be statement, Conflict of Laws, §§ 332, 358;
Goodrich, Conflict of Laws [3d ed., 1949], pp. 342-343.)
In Auten v. Auten (308 N. Y. 155), however, this court aban-
doned such rules and applied what has been termed the ‘‘ center
of gravity ” or “ grouping of contacts ” theory of the conflict
of laws. “ Under this theory,” we declared in the Auten case,
“ the courts, instead of regarding as conclusive the parties’
intention or the place of making or performance, lay emphasis
rather upon the law of the place 1which has the most significant
contacts with the matter in dispute ’ ” (308 N. Y., at p. 160).
The 1‘ center of gravity ’’ rule of Auten has not only been applied
in other cases in this State,6 as well as in other jurisdictions,7
but has supplanted the prior rigid and set contract rules in the
most current draft of the Bestatement of Conflict of Laws. (See
Bestatement, Second, Conflict of Laws, § 332b [Tentative Draft
No. 6, I960].)
Bealization of the unjust and anomalous results which may
ensue from application of the traditional rule in tort cases has
also prompted judicial search for a more satisfactory alternative
in that area. In the much discussed case of Kilberg v. Northeast
Airlines (9 N Y 2d 34), this court declined to apply the law of
the place of the tort as respects the issue of the quantum of the
recovery in a death action arising out of an airplane crash,
6. See, e.g., Haag v. Barnes, 9 N Y 2d 554; Zogg v. Penn Mut. Life Ins.
Co., 276 F. 2d 861 (2d Cir.).
7. See, e.g., Jansson v. Swedish Amer. Line, 185 F. 2d 212, 218-219;
Barber Co. v. Hughes, 223 Ind. 570, 586; Kievit v. Loyal Protective Life Ins.
Co., 34 N. J. 475, 491-493; Estate of Knippel, 7 Wis. 2d 335, 343-345.
480

where the decedent had been a New York resident and his rela-
tionship with the defendant airline had originated in this State.
In his opinion for the court, Chief Judge Desmond described,
with force and logic, the shortcomings of the traditional rule
(9 NY 2d, at p. 39):
“ Modern conditions make it unjust and anomalous to
subject the traveling citizen of this State to the vary-
ing laws of other States through and over which they
move. * * * An air traveler from New York may
in a flight of a few hours’ duration pass through
* * * commonwealths [limiting death damage
awards]. His plane may meet with disaster in a State
he never intended to cross but into which the plane has
flown because of bad weather or other unexpected devel-
opments, or an airplane’s catastrophic descent may
begin in one State and end in another. The place of
injury becomes entirely fortuitous. Our courts should
if possible provide protection for our own State’s people
against unfair and anachronistic treatment of the
lawsuits which result from these disasters.”
The emphasis in Kilberg was plainly that the merely for-
tuitous circumstance that the wrong and injury occurred in
Massachusetts did not give that State a controlling concern or
interest in the amount of the tort recovery as against the com-
peting interest of New York in providing its residents or users
of transportation facilities there originating with full compen-
sation for wrongful death. Although the Kilberg case did not
expressly adopt the “ center of' gravity ” theory, its weighing
of the contacts or interests of the respective jurisdictions to
determine their bearing on the issue of the extent of the recovery
is consistent with that approach. (See Leflar, Conflict of Laws,
1961 Ann. Sur. Amer. Law, 29, 45.)
The same judicial disposition is also reflected in a variety of
other decisions, some of recent date, others of earlier origin,
relating to workmen’s compensation,8 tortious occurrences aris-
8. See, e.g., Alaska Packers Assn. v. Industrial Acc. Comm., 294 U. S. 532;
Matter of Nashko v. Standard Water Proofing Co., 4 N Y 2d 199; Kennerson v.
Thames Towboat Co., 89 Conn. 367; Pierce v. Bekins Van & Stor. Co.,
185 Ia. 1346; Aleckson v. Kennedy Motor Sales Co., 238 Minn. 110; see, also,
2 Larson, Workmen’s Compensation Law, § 84.
 481

ing out of a contract,9 issues affecting the survival of a tort right

of action10and intrafamilial immunity from tort11 and situations
involving a form of statutory liability.12 These numerous eases
differ in many ways but they are all similar in two important
respects. First, by one rationale or another, they rejected
the inexorable application of the law of the place of the tort
where that place has no reasonable or relevant interest in the
particular issue involved. And, second, in each of these cases
the courts, after examining the particular circumstances pre-
sented, applied the law of some jurisdiction other than the
place of the tort because it had a more compelling interest in the
application of its law to the legal issue involved.
The “ center of gravity ” or “ grouping of contacts ” doctrine
adopted by this court in conflicts cases involving contracts
impresses us as likewise affording the appropriate approach
for accommodating the competing interests in tort cases with
multi-State contacts. Justice, fairness and “ the best practical
result ” (Swift & Co. v. Bankers Trust Co., 280 N. Y. 135, 141,
supra) may best be achieved by giving controlling effect to the
law of the jurisdiction which, because of its relationship or
contact with the occurrence or the parties, has the greatest con-
cern with the specific issue raised in the litigation. The merit
of such a rule is that “ it gives to the place ‘ having the most
interest in the problem ’ paramount control over the legal issues
arising out of a particular factual context ” and thereby allows
the forum to apply “ the policy of the jurisdiction 1most
9. See Dyke v. Erie Ry. Co., 45 N. Y. 113; see, also, Bowles v. Zimmer Mfg.
Co., 277 F. 2d 868 (breach of warranty).
10. See Grant v. McAuliffe, 41 Cal. 2d 859, supra; Herzog v. Stern, 264
N. Y. 379; see, also, Currie, Survival of Actions: Adjudication versus Automation
in the Conflict of Laws, 10 Stan. L. Rev. 205.
11. See Emery v. Emery, 45 Cal. 2d 421; Koplik v. C. P. Trucking Corp.,
27 N. J. 1; Mertz v. Mertz, 271 N. Y. 466; Haumschild v. Continental Cas. Co.,
7 Wis. 2d 130, supra; see, also, Ehrenzweig, Parental Immunity in the Conflict
of Laws, 23 U. Chi. L. Rev. 474; Ford, Interspousal Liability for Automobile
Accidents in the Conflict of Laws, 15 U. Pitt. L. Rev. 397. But ef. Coster v.
Coster, 289 N. Y. 438.
12. See Schmidt v. Driscoll Hotel, 249 Minn. 376, supra; Osborn v. Borchetta,
20 Conn. S. 163; Levy v. Daniels’ U-Drive Auto Renting Co., 108 Conn. 333.
See, also, Daily v. Somberg, 28 N. J. 372 (effect of release to one of several
parties jointly liable for plaintiff’s injury).
•482

intimately concerned' with the outcome of [the] particular

litigation.’ ” (Auten v. Auten, 308 N. Y. 155, 161, supra.)
Such, indeed, is the approach adopted in the most recent revi-
sion of the Conflict of Laws Restatement in the field of torts.
According to the principles there set out, “ The local law of the
state which has the most significant relationship with the occur-
rence and with the parties determines their rights and liabilities
in tort ” (Restatement, Second, Conflict of Laws, § 379[1]; also
Introductory Note to Topic 1 of Chapter 9, p. 3 [Tentative Draft
No. 8, 1963]), and the relative importance of the relationships
or contacts of the respective jurisdictions is to be evaluated in
the light of ‘1the issues, the character of the tort and the relevant
purposes of the tort rules involved” (§ 379[2], [3]).
Comparison of the relative “ contacts ” and “ interests ” of
New York and Ontario in this litigation, vis-a-vis the issue here
presented, makes it clear that the concern of New York is unques-
tionably the greater and more direct and that the interest of
Ontario is at best minimal. The present action involves injuries
sustained by a New York guest as the result of the negligence
of a New York host in the operation of an automobile, garaged,
licensed and undoubtedly insured in New York, in the course of
a week-end journey which began and was to end there. In sharp
contrast, Ontario’s sole relationship with the occurrence is the
purely adventitious circumstance that the accident occurred
there.
New York’s policy of requiring a tort-feasor to compensate
his guest for injuries caused by his negligence cannot be doubted
— as attested by the fact that the Legislature of this State
has repeatedly refused to enact a statute denying or limiting
recovery in such cases (see, e.g., 1930 Sen. Int. No. 339, Pr. No.
349; 1935 Sen. Int. No. 168, Pr. No. 170; 1960 Sen. Int. No. 3662,
Pr. No. 3967) —and our courts have neither reason nor warrant
for departing from that policy simply because the accident,
solely affecting New York residents and arising out of the
operation of a New York based automobile, happened beyond
its borders. Per contra, Ontario has no conceivable interest in
denying a remedy to a New York guest against his New York
host for injuries suffered in Ontario by reason of conduct which
was tortious under Ontario law. The object of Ontario’s guest
statute, it has been said, is “ to prevent the fraudulent assertion
 483

of claims by passengers, in collusion with the drivers, against

insurance companies ” (Survey of Canadian Legislation, 1 TJ.
Toronto L. J. 358, 366) and, quite obviously, the fraudulent
claims intended to be prevented by the statute are those asserted
against Ontario defendants and their insurance carriers, not
New York defendants and their insurance carriers. "Whether
New York defendants are imposed upon or their insurers
defrauded by a New York plaintiff is scarcely a valid legislative
concern of Ontario simply because the accident occurred there,
any more so than if the accident had happened in some other
jurisdiction.
It is hardly necessary to say that Ontario’s interest is
quite different from what it would have been had the issue
related to the manner in which the defendant had been driving
his ear at the time of the accident. "Where the defendant’s
exercise of due care in the operation of his automobile is in issue,
the jurisdiction in which the allegedly wrongful conduct occurred
will usually have a predominant, if not exclusive, concern. In
such a case, it is appropriate to look to the law of the place of
the tort so as to give effect to that jurisdiction’s interest in
regulating conduct within its borders, and it would be almost
unthinkable to seek the applicable rule in the law of some
other place.
The issue here, however, is not whether the defendant offended
against a rule of the road prescribed by Ontario for motorists
generally or whether' he violated some standard of conduct
imposed by that jurisdiction, but rather whether the plaintiff,
because she was a guest in the defendant’s automobile, is barred
from recovering damages for a wrong concededly committed.
As to that issue, it is New York, the place where the parties
resided, where their guest-host relationship arose and where the
trip began and was to end, rather than Ontario, the place
of the fortuitous occurrence of the accident, which has the
dominant contacts and the superior claim for application of its
law. Although the rightness or wrongness of defendant’s con-
duct may depend upon the law of the particular jurisdiction
through which the automobile passes, the rights and liabilities
of the parties which stem from their guest-host relationship
should remain constant and not vary and shift as the automobile
proceeds from place to place. Indeed, such a result, we note,
484

accords with ‘‘ the interests of the host in procuring liability

insurance adequate under the applicable law, and the interests
of his insurer in reasonable calculability of the premium.”
(Ehrenzweig1, Guest Statutes in the Conflict of Laws, 69 Yale
L. J. 595, 603.)
Although the traditional rule has in the past been applied
by this court in giving controlling effect to the guest statute of
the foreign jurisdiction in which the accident occurred (see, e.g.,
Smith v. Clute, 277 N. Y. 407; Kerfoot v. Kelley, 294 N. Y. 288;
Naphtali v. Laf-azan, 8 N Y 2d 1097, affg. 8 A D 2d 22), it is not
amiss to point out that the question here posed was neither
raised nor considered in those cases and that the question has
never been presented in so stark a manner as in the case before
us with a statute so unique as Ontario’s.13 Be that as it may,
however, reconsideration of the inflexible traditional rule per-
suades us, as already indicated, that, in failing to take into
account essential policy considerations and objectives, its appli-
cation may lead to unjust and anomalous results. This being
so, the rule, formulated as it was by the courts, should be discarded.
(C- f. Bing v. Thunig, 2 N Y 2d 656,667; Woods v. Lancet,
303 N. Y. 349, 355.)14
In conclusion, then, there is no reason why all issues arising
out of a tort claim must be resolved by reference to the law of
the same jurisdiction. Where the issue involves standards of
conduct, it is more than likely that it is the law of the place, of
the tort which will be controlling but the disposition of other
issues must turn, as does the issue of the standard of conduct
itself, on the law of the jurisdiction which has the strongest
interest in the resolution of the particular issue presented.
13. We note that the Supreme Court of Canada has upheld the refusal of
the Quebec courts to apply the Ontario guest statute to an accident affecting
Quebec residents ) which occurred in Ontario. (See McLean v. Pettigrew, [1945]
2 D. L. R. 65.- This decision was dictated by the court’s resort to the English
choice of law rule, whereby the foreign tort is deemed actionable if actionable
by the law. of the forum and not justifiable by the law of the place of the tort.
(See Phillips v. Eyre, [1870] L. R. 6 Q. B. 1, 28-29; see, also, Dicey, Conflict
of Laws [7th ed., 1958], p. 940.) However that may be, it would seem
incongruous for this court to apply Ontario’s unique statute in circumstances
under which its own sister Provinces would not.
14. It of course follows from our decision herein that, given the facts of the
present ease, the result would be the same and the law of New York applied
where the foreign guest statute requires a showing of gross negligence.
 485

The judgment appealed from should be reversed, with costs,

and the motion to dismiss the complaint denied.
Van Voobhis, J. (dissentiiig). The decision about to be made
of this appeal changes the established law of this State, one of
the most recent decisions the other way being Kaufman v.
American Youth Hostels (5 N Y 2d 1016), where all of the
“ significant contacts ” were with New York State except the
mountain which plaintiff’s intestate was climbing when she met
her death. The defense of immunity of a charitable corporation
under the Oregon law, where the accident occurred, was inap-
plicable under the law of New York where the defendant cor-
poration was organized and staffed, and plaintiff and his inte-
state resided. Nevertheless the court declined to strike that
defense from the answer, based upon Oregon law. Concerning,
as it did, solely the status of the defendant corporation, Kauf-
man v. American Youth Hostels presented a stronger case for
the application of New York law than does the present. The case
of Auten v. Auten (308 N. Y. 155), involving a separation agree-
ment between English people and providing for the support of
a wife and children to continue to live in England, accomplished
no such revolution in the law as the present appeal. Auten v.
Auten dealt with contracts, the agreement was held to be gov-
erned by the law of the country where it was mainly to be per-
formed, which had previously been the law, and the salient
expressions ‘‘ center of gravity “ grouping of contacts ’’, and
similar catchwords were employed as a shorthand reference to
the reconciliation of such rigid concepts in the conflict of laws as
the formulae making applicable the place where the contract was
signed or where it was to be performed — rules which themselves
were occasionally in conflict with one another. In the course of
the opinion it was stated that ‘‘ even if we were not to place our
emphasis on the law of the place with the most significant con-
tacts, but were instead simply to apply the rule that matters of
performance and breach are governed by the law of the place
of performance, the same result would follow” (308 N. Y.,
p. 163). The decision in Auten v. Auten rationalized and ren-
dered more workable the existing law of contracts. The name
‘‘ grouping of contacts” was simply a label to identify the
rationalization of existing decisions on the conflict of laws in
486

contract eases which were technically inconsistent, in some

instances. The difference between the present case and Auten
v. Auten is that Auten did not materially change the law, but
sought to formulate what had previously been decided. The
present case makes substantial changes in the law of torts. The
expressions “ center of gravity ”, “ grouping of contacts,” and
‘‘ significant contacts ’’ are catchwords which were not employed
to define and are inadequate to define a principle of law, and were
neither applied to nor are they applicable in the realm of torts.
Any idea is without foundation that cases such as the present
render more uniform the laws of torts in the several States of
the United States. Attempts to make the law or public policy
of New York State prevail over the laws and policies of other
States where citizens of New York State are concerned are
simply a form of extraterritoriality which can be turned against
us wherever actions are brought in the courts of New York
which involve citizens of other States. This is no substitute for
uniform State laws or for obtaining uniformity by covering the
subject by Federal law. Undoubtedly ease of travel and com-
munication, and the increase in interstate business have rendered
more awkward discrepancies between the laws of the. States in
many respects. But this is not a condition to be cured by intro-
ducing or extending principles of extraterritoriality, as though
we were living in the days of the Roman or British Empire,
when the concepts were formed that the rights of a Roman or
an Englishman were so significant that they must be enforced
throughout the world even where they were otherwise unlikely
to be honored by “ lesser breeds without the law.” Importing
the principles of extraterritoriality into the conflicts of laws
between the States of the United States can only make confusion
worse confounded. If extraterritoriality is to be the criterion,
what would happen, for example, in case of an automobile acci-
dent where some of the passengers came from or were picked
up in States or countries where causes of action against the
driver were prohibited, others where gross negligence needed to
be shown, some, perhaps, from States where contributory negli-
gence and others where comparative negligence prevailed? In
the majority opinion it is said that “Where the defendant’s
exercise of due care in the operation of his automobile is in issue,
the jurisdiction in which the allegedly wrongful conduct occurred
 487

will usually have a predominant, if not exclusive, concern.”

This is hardly consistent with the statement in the footnote that
gross negligence would not need to be established in an action
by a passenger if the accident occurred in a State whose statute
so required. If the status of the passenger as a New Yorker
would prevent the operation of a statute in a sister State or
neighboring country which granted immunity to the driver in
suits by passengers, it is said that it would also prevent the
operation of a statute which instead of granting immunity per-
mits recovery only in case of gross negligence. There are pas-
senger statutes or common-law decisions requiring gross negli-
gence or its substantial equivalent to be shown in 29 States.
One wonders what would happen if contributory negligence were
eliminated as a defense by statute in another jurisdiction? Or
if comparative negligence were established as the rule in the
other State?
In my view there is no overriding consideration of public
policy which justifies or directs this change in the established
rule or renders necessary or advisable the confusion which such
a change will introduce.
The judgment dismissing the complaint should be affirmed.
Chief Judge Desmond and Judges Dye, Burke and Foster
concur with Judge Fuld ; Judge Van Yoorhis dissents in an
opinion in which Judge Scileppi concurs.
Judgment reversed, with costs in all courts, and matter
remitted to Special Term for further proceedings in accordance
with the opinion herein.

Thomas G. Stone, as Administrator of the Estate of Mary I.

Stone, Deceased, Respondent, v. Metropolitan Life Insur-
ance Co., Defendant, and Olive Weinstein et al., Appellants.
Argued March 28, 1963; decided May 9, 1963.