Knight v. West Jersey Railroad Co.

• Decision Date: 16 March 1885
• Citation: 108 Pa. 250
• Parties: Knight <I>versus</I> West Jersey Railroad Company.
• Court: Pennsylvania Supreme Court

108 Pa. 250

Knight versus West Jersey Railroad Company.

Supreme Court of Pennsylvania.

January 7, 1885.

March 16, 1885.

January 7th, 1885.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. CLARK, J., absent

Error to the Court of Common Pleas, No. 3, of Philadelphia County: Of January Term, 1884, No. 212.

Leoni Melich and Samuel C. Perkins, for the plaintiffs in error.—The question involved in this case is solely whether the cause of action — negligence resulting in death — is local or transitory. At common law, personal actions, whether ex contractu or ex delicto, are transitory, and may be brought anywhere: Story on Conflict of Laws, §§ 538, 554, and 558. Trespass on the case for an injury to the person has always been considered a transitory action in England: Mostyn v. Fabrigas, 1 Smith's Lead. Cases (Hare & Wallace), 1024; McKenna v. Fiske, 1 Howard, 249; Johnson v. Dalton, 1 Cow., 543; Smith v. Bull, 17 Wend., 323; Stout v. Wood, 1 Blackf., 71; Watts v. Thomas, 2 Bibb., 458; Wall v. Hoskins, 5 Ired. L., 177; N. C. Co. v. Scholl's Ex'rs, 16 Md. 332; Great W. R. R. Co. v. Miller, 19 Mich., 305; Ackerson v. Erie R. R. Co., 31 N. J. L., 309. The fact that this action is statutory and not by the common law, does not make it less transitory: Bennett v. Cadwell, 20 P. F. S., 258; Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48; Dennick v. R. R. Co., 13 Otto, 18; Whitford v. Panama R. R. Co., 23 N. Y. 484. The courts of this state will enforce a liability incurred under the law of another state, whenever that liability is not against the policy of this state or prejudicial to its interests.

David W. Sellers, for defendant in error. No action can be maintained under the statute of this state for a death caused by negligence outside of it: Whitford v. Panama R. R. Co., 23 N. Y. 484; Richardson v. Railroad Co., 98 Mass. 85; Though a sister state may have a similar statute to this, the rights thereunder will not be enforced where the place of accident and of death, and the citizenship of neither of the parties belongs to this state: Railroad Co. v. Lacy, 43 Georgia, 461; Allen v. Railroad Co., 45 Maryland, 41; Patton v. Railroad Co., 15 Norris, 169.

Mr. Justice TRUNKEY delivered the opinion of the court, March 16th, 1885.

Upon the mere admission contained in the written agreement of the counsel, the nonsuit was rightly ordered. By all authority where the Act complained of is not the subject of legal redress by the law of the place where committed, it cannot be made the subject of such action by the statute of another state where the action is brought. It does not appear in the record that a statute exists in New Jersey creating a liability by the defendant for the act complained of in the declaration. The common law does not give the right, and it cannot be presumed that it has been given by statute.

At the argument the defendant's counsel admitted that the plaintiffs could have proved that a statute existed in New Jersey substantially the same as the statute in Pennsylvania relative to liability of persons for damages in case of injury by negligence causing death; and asserted that the plaintiffs are citizens of and reside in New Jersey, and the defendant is a corporation of and its road is located in that state. And upon the facts agreed and orally so admitted and claimed, requested that it be determined whether the courts of this state will exercise jurisdiction. It seems the nonsuit was granted on the ground that the injury and death occurred in New Jersey, regardless of other facts which might be proved upon the trial.

At common law purely personal wrongs, as respects civil remedy, died with the person who received them; but whether just or unjust, that rule has been abrogated to a great extent by statutes, both in this country and in England. In the earlier period of such legislation there was a tendency to adopt the principle that "where a new right of action is given by the statute for that for which no action would lie at common law, such action can only be brought in the state or county whose statute gives the right, and for the wrongs then suffered." This is sustained by some decisions, among them Richardson v. N. Y. Cent. Railroad Co., 98 Mass. 85, and Anderson v. Railroad Co., 37 Wis., 321.

The general rule is, as to personal torts which give a right of action at common law, that the action may be brought wherever the wrong-doer may be found, and jurisdiction of his person may be obtained. In actions ex contractu, their transitory character, and the jurisdiction of the courts to entertain them, are the same whether the right be given by statute or the common law. Like rule has recently been applied in Minnesota in an action ex delicto, the court remarking that where either by common law or statute, a right of action has become fixed and legal liability incurred, if transitory it may be enforced in the courts of any state which can obtain jurisdiction of the defendant, provided it is not against the public policy of the laws of the state where it is sought to be enforced. The statute of another state has no extra-territorial force, but rights under it will always, in comity, be enforced, if not against the policy of the laws of the forum. In such cases the law of the place where the right was acquired or the liability was incurred, will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought: Herrick v. Minneapolis & St. L. Railway Co., 23 Amer. L. Reg., 26. The doctrine in that case had been enunciated in Dennick v. Railroad Co., 103 U. S. R., 11. That action was brought in a state court of New York for recovery of damages under the statute of New Jersey which imposes liability therefor upon a party by whose wrongful act, neglect or default, death ensues. It was removed to the Circuit Court of the United States on the ground that the plaintiff was a citizen of New York, and the defendant of New Jersey. The accident which caused the death of the plaintiff's husband occurred in the latter state. After remarking that the right of...