19 Mich. 305 (Mich. 1869), Great W. R. Co. of Canada v. Miller

Citation:19 Mich. 305
Opinion Judge:Campbell, J.
Party Name:The Great Western Railway Company of Canada v. Alexander Miller
Attorney:Theodore Romeyn, for plaintiffs in error. D. B. & H. M. Duffield, for defendant in error.
Case Date:October 26, 1869
Court:Supreme Court of Michigan
 
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Page 305

19 Mich. 305 (Mich. 1869)

The Great Western Railway Company of Canada

v.

Alexander Miller

Supreme Court of Michigan

October 26, 1869

Heard October 16, 1869; October 20, 1869

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Error to Wayne Circuit.

Action on the case for damages occasioned by the expulsion of the plaintiff below, from the cars of the defendants, at a point between Chatham and Belle River, in Canada. Plea, the general issue. A verdict was rendered for the plaintiff of $ 3,000; and the judgment entered thereon is brought into this Court by writ of error. The errors assigned are:

1. The Court erred in taking and exercising jurisdiction over the defendants, a foreign corporation, and in giving judgment against them in favor of a resident of Canada, a foreign province, for an alleged tort committed in such province.

2. The Court erred by subjecting the defendants, in an action brought and tried in Michigan, to a special liability, claimed to be created and to exist by virtue only of a statute of a foreign government, and not incident to or arising under the general duties or obligations of the defendants as common carriers, and not imposed upon them by the laws of the State of Michigan.

3. The Court erred in instructing the jury that at the time of the alleged ejection of plaintiff by defendants, said defendants were subject to and bound by said provisions of said statute.

4. The Court erred in charging the jury that "if the jury find that the plaintiff was put out of the defendant's cars, not at any usual stopping place, or not near any dwelling house, that the plaintiff is entitled to recover, even though he had no valid ticket, and had made no valid tender of his fare."

Judgment reversed with costs and a new trial granted.

Theodore Romeyn, for plaintiffs in error.

The Railway Company were sued by Miller, in the Circuit Court of Wayne County, for a tortious ejection of him by their conductor, in Canada. He was a resident of Canada. The wrong was committed in that province. The defendants were and are a foreign corporation. No contract was made in this State. None was violated here. No wrong was inflicted here. Yet the plaintiff, residing in the same sovereignty with the defendants, saw fit to sue them here for an alleged wrong committed there, and cognizable by the foreign court.

I. The defendants are not liable to the plaintiff in this action in this court. The plaintiff had no cause of action in Michigan. 1. The defendants are a foreign corporation, residing in Canada, and a citizen of that province.--O. & M. R. R. Co. v. Wheeler, 1 Black 286; Dennistown v. N. Y. & N.H. R. R. Co. 1 Hilton 63. 2. There is nothing in the rules of comity, or in our own legislation, requiring our courts to take cognizance of a case like the present.--Fisk v. Chicago, etc. R. R. Co. 53 Barbour 477. 3. The rules of the Common Law do not require nor permit the exercise of jurisdiction for torts committed in a foreign jurisdiction by one non-resident on another, unless, perhaps, in the case where both parties are afterwards actually found within the jurisdiction. Here the defendants are non-residents, and, except by fiction of law, are not and never were within the State. See Mostyn v. Fabrigas, Cowper, 176; Doulson v. Matthews, 4 Term 503, to show the foundation of the rule allowing transitory actions to be brought in a foreign jurisdiction. The whole doctrine rests on fiction, and is unsound. As a matter of policy and expediency, the Courts of Michigan should not take cognizance of this class of cases.

But if we are to be governed by the rules as to the form and locality of actions, then we say that, under our statute, this action was not maintainable, for the reason that neither party to it resided in Wayne County.--2 Comp. Laws, p. 1,187, § 4,344.

II. The Court erred in charging the jury that the defendants were liable in this State for the act of the conductor, under the circumstances of this case. The gravamen of the offense, under the charge of the Court, was the putting off of the plaintiff contrary to the Canadian statute, at an unusual place. The legal question is not complicated nor affected by any considerations growing out of special damages or hardships. It is presented nakedly and distinctly. 1. The act of Canada is perfectly explicit, and it is for the violation of this act by the conductor, that the defendants are sued. There is no pretense that defendants directed or sanctioned the tort. It was the deliberate, willful, wrongful act of its conductor. 2. The wrong consisted not in the manner of the removal under circumstances authorized by the company, but in removal at a place and under circumstances not contemplated by them, nor recognized by the statute. The act was no more that of the defendants than if the conductor had forced the plaintiff to leap into the river in crossing from Windsor. The authority was, to remove at a usual stopping place or near a dwelling house. For the manner of exercising this authority, we may concede that the company should be liable for the act of its agent. When the removal was made willfully at another place, the act is the unauthorized, willful wrong of the conductor. 3. Under these circumstances we contend--a. The conductor is liable. State v. Great Works Mill Co. 20 Me. 41; State v. Ross, 2 Dutcher 224; Hillard v. Gould, 34 N.H. 230; b. The company is not liable. Crocker v. New London, etc. R. R. Co. 24 Conn. 249; Thames Steamboat Co. v. R. R. Co. 24 Conn. 40; Story on Agency, §§ 452, 455, 456; McManus, v. Cricket, 1 East, 106; Illinois Central R. R. Co. v. Downey, 18 Ill. 259; Philadelphia, etc. Railway v. Wilt, 4 Wharton 143; Fox v. Northern Liberties, 3 W. & S. 103; Richmond Turnpike Co. v. Vanderbilt, 1 Hill 480; Vanderbilt v. Richmond Turnpike Co. 2 N.Y. 479, and cases there cited. Hibbard v. New York & Erie R. R. Co. 15 N.Y. 455; Weed v. The Panama R. R. Co. 17 N.Y. 362; Meyer v. The Second Avenue R. R. Co. 8 Bosworth, 305.

III. In no view of the case, as presented by this record, was the plaintiff entitled to recover. The defendants are not liable to him for removing him from their cars, if he intruded there, without paying or tendering his fare, at any place whatever, unless he sustained actual damages. 1. The statute of Canada is a proper regulation for the safety of passengers and the management of railroads, but it gives no right of action to any person. 2. The first three counts of the declaration aver no wrong to the plaintiff beyond the simple ejection, and no damages sustained, and there is nothing in the bill of exceptions to show any damages. 3. The theory of the charge of the Judge is--that the plaintiff could recover for simply being put off the cars, though himself a trespasser.

This is not the law.--See 2 Red. on Railways, Chap. 24, § 177, and cases there cited; Hagan v. P. & W. R. R. 3 R. 1. 88.

D. B. & H. M. Duffield, for defendant in error.

The first assignment of error goes to the jurisdiction of the Court.

The record shows that service of declaration was accepted by the Attorney of the defendants, their appearance duly entered, and a plea of the general issue put in; that the parties went to trial on the merits, and that in the Court below no exception or objection to the jurisdiction of the court was ever made or intimated. The objection to jurisdiction first appears in the assignment of errors.

1. It has long been settled by a series of authorities, both in England and in this country, that it is too late to raise a question of jurisdiction after appearance, trial and verdict.-- Mendyke v. Stint, 2 Mod. Reports, 273; Mostyn v. Fabrigas, 2 Cowp. 166, 172; Cook v. Champlain Transportation Co. 1 Denio 91; Maxfield v. Scott, 17 Vt. 634; 3 Haywood 44; Varney v. Vosch, 3 Hill,...

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