McLeod v. Conn. & P. R. Co.

• Decision Date: 14 September 1886
• Citation: 58 Vt. 727,6 A. 648
• Court: Vermont Supreme Court
• Parties: MCLEOD v. CONNECTICUT & P. R. CO.

6 A. 648

58 Vt. 727

MCLEOD

v. CONNECTICUT & P. R. CO.

Supreme Court of Vermont.

September 14, 1886.

Edwards, Dickerman & Young, for defendant.

Crane & Alfred, for plaintiff.

WALKER, J. By this action the plaintiff seeks to recover for personal injuries alleged to have been sustained by him in the province of Quebec, through the defendant's neglect to construct and maintain its railway, and at the point where it crosses a public highway in Stanstead, in said province of Quebec, in accordance with the provisions of a certain statute law of said province. The defendants demur to the plaintiffs declaration, and insist, as one cause of demurrer, that the action is local, and cannot be maintained in this state, but should have been brought in the province of Quebec, where the alleged negligence occurred and injuries were received.

The rules of distinction between local and transitory actions are well settled. Local actions are such as require the venue to be laid in the county in which the cause of action arose, for the reason that the cause of action could only have arisen in a particular county. These include, as a general proposition, all actions in which the subject or thing in controversy, or thing sought to be recovered, is in its nature local,—such as actions of ejectment, and other actions brought to recover the seizin or possession of lands and tenements; also actions which do not directly seek the recovery of lands or tenements, but which arise out of a local subject, or the violation of some local right,—such as trespass quare clausum fregit, trespass on the case for nuisances to real property, disturbance of right of way, obstruction or diversion of water-course, and so forth. The action of replevin is also usually held to be local, because of the necessity of giving a local description to the thing taken. Actions on penal statutes for penalties are also held to be local, but actions on a statute by the party aggrieved, for injuries sustained, are held to be transitory. Saund. PL & Ev. *412; 1 Com. Dig. "Action;" Bac. Abr. "Actions Local," A.

Transitory actions are personal actions brought for the recovery of money or personal chattels, whether they sound in tort or contract. 1 Chit. PL 273. All actions ex delicto, to the person or to personal property, in which a mere personalty is recoverable, are, as a general rule, by the common law, transitory in their nature, and the venue may be laid in the county where the cause of action arose, or where the plaintiff or defendant resides at the time of instituting the action, or in the county where service may be made upon the defendant, if he does not reside in the state. Gould, Pl c. 3, § 112; Bull. N. P. 196.

The test as to whether an action is transitory or local is not, as a general proposition, the subject causing the injury, but the object suffering the injury. Transitory actions have foundation in the supposed violation of rights which, in the contemplation of law, have no locality, and for which the right to compensation is recognized by the laws of all countries and rest upon the rule of international comity that every nation may rightfully exercise jurisdiction over all persons within its limits in respect to matters purely personal. Story, Confl. Laws, § 542; Herrick v. Minneapolis & St. L. R. Co., 11 Amer. & Eng. R. Cas. 256; S. C. 16 N. W. Rep. 413.

From the decision in the case of Rafael v. Verelst, 2 W. Bl. 1055, the doctrine that personal injuries are transitory in their nature has never been questioned. It is now well settled that the nature of the remedy, and the jurisdiction of courts to enforce it, is not dependent upon the question whether it is a statutory or common-law right.

The question as to whether a person may be held liable in a personal action, in any court to whose jurisdiction he can be subjected by personal process, where the right of action against him is dependent solely upon the statute of another state, was before the United States supreme court in the case of Dennick v. Central R. of N. J., 103 U. S. 11, in which Justice Miller, in delivering the opinion of the court, says:

"Wherever, by either the common law or the statute law of a state, a right of action has become fixed, and a legal liability incurred, that liability may be enforced, and the right of action pursued, in any court which has jurisdiction of such matters, and can obtain jurisdiction of the parties. We do not see how the fact that it was a statutory right can vary the principle. If the defendant was legally liable in New Jersey, he could not escape that liability by going to New York. If the liability to pay money was fixed by the law of the state where the transaction occurred, is it to be said it can be enforced nowhere else, because it depended upon statute law, and not upon common law? It would be a very dangerous doctrine to establish that, in all cases where the several states have substituted the statute for the common law, the liability can be enforced in no other state but that where the statute was enacted and the transaction occurred."

The supreme court of this state, in Cady v. Sanford, 53 Vt. 632, approved the doctrine that the nature of the remedy, and jurisdiction of the courts to enforce it, is not, under the rule of international comity, dependent upon the question whether it is a statutory right or a common-law right.

In this case the action is not brought to recover a penalty for a forfeiture imposed for transgressing the provisions of the statute declared upon, nor to recover anything local in its nature, but for a personal injury alleged to have been sustained in the province of Quebec by the party aggrieved, through the neglect of the defendant to comply with the provisions of the statute of the province; and upon general principles, and the authority of the foregoing cases, the action must be held to be transitory, and as properly brought in this state.

Although a civil right of action acquired or liability incurred, in one state or country, for a personal injury, may be enforced in another to which the party in fault may have removed, or where he may be found, yet the right of action must exist under the laws...