Conn. Valley Lumber Co. v. Me. Cent. R. R.

• Decision Date: 05 February 1918
• Citation: Conn. Valley Lumber Co. v. Me. Cent. R. R., 103 A. 263, 78 N.H. 553 (N.H. 1918)
• Parties: CONNECTICUT VALLEY LUMBER CO. v. MAINE CENT. R. R.
• Court: New Hampshire Supreme Court

103 A. 263

78 N.H. 553

CONNECTICUT VALLEY LUMBER CO.

v. MAINE CENT. R. R.

Supreme Court of New Hampshire. Coos.

Feb. 5, 1918.

Transferred from Superior Court, Coos County; Branch, Judge.

Action by the Connecticut Valley Lumber Company against the Maine Central Railroad. Transfer of question on agreed facts. Case discharged.

Case, for damages caused by a fire alleged to have been set by the defendant. Facts agreed. On July 14, 1911, the plaintiff was the owner of a trestle bridge extending from Auckland in the Province of Quebec and Dominion of Canada to Pittsburg in this state, spanning Hall stream, which is the international boundary at that point. On that date one of the defendant's locomotives, which it was operating within Auckland, set fire to the bridge, which was burned and destroyed. The fire originated in that town, but spread to that part of the bridge located in Pittsburg and destroyed it. The defendant claimed that the statute of Canada (chapter 37, Rev. Stats. § 306) applicable to the facts, requiring suit to be commenced within one year after the injury occurred, was a bar to this action, which was begun November 18, 1916. The sole question transferred without a ruling from the April term, 1917, of the superior court, is whether the Canadian statute is a bar.

Herrick, Smith, Donald & Farley and Daniel J. Lyne, all of Boston, Mass., and Sullivan & Daley, of Berlin (Daniel J. Lyne, of Boston, Mass., orally), for plaintiff. Rich & Marble, of Berlin (Geo. F. Rich, of Berlin, orally), for defendant.

WALKER, J. It is admitted by the plaintiff that its cause of action, if prosecuted in the courts of Canada, is barred, or may be barred by statutory limitation. The statute referred to (chapter 37, Rev. Can. Stats. 1906) provides in section 298 for the recovery of damages from a railroad caused by a fire started by a locomotive used by the railroad, whether guilty of negligence or not, and in section 306 that:

"All actions or suits for indemnity for any damages or injury sustained by reason of the construction or operation of the railway shall be commenced within one year next after the time when such supposed damage is sustained, or, if there is continuation of damage, within one year next after the doing or committing of such damage ceases, and not afterwards."

As to so much of the plaintiff's bridge as was located within the territorial boundaries of Canada, it is not doubted that the statutes of that province would be applicable in an action there. Hence the question arises whether, since the statutory period of limitation prescribed in section 306 "became complete long before this suit was begun, it constitutes a defense which may be relied upon iu this state.

It is too well settled to require the citation of authorities that, ordinarily, remedial procedure is governed by the law of the place where the suit is brought, although it may differ materially from the remedy established in the state or jurisdiction within which the cause of action arose. Each state is entitled to adopt for the guidance of its courts such rules or laws pertaining to the methods of procedure for the vindication of rights and the promotion of justice as it may deem convenient and reasonable; and litigants who resort to its courts or are compelled to appear therein cannot insist upon the trial of their rights by some other or different rules of procedure which may prevail in the place where the cause of action arose. While the rights and liabilities of parties under a foreign contract are to be determined according to the foreign law, the remedies of the forum must be observed. And this is equally true with reference to actions of tort. Beacham v. Portsmouth Bridge, 68 N. H. 382, 40 Atl. 1066, 73 Am. St. Rep. 607; McDonald v. Railway, 71 N. H. 448, 450, 52 Atl. 982, 59 L. R, A. 448, 93 Am. St. Rep. 550.

Statutes of limitation of actions, which do not abolish rights which have become barred thereby, have been held, with few exceptions, to relate to the procedure, and not to the essential rights of the parties, and to have therefore no extraterritorial effect. The mere fact that no action can be maintained upon a contract or for a tort in the state Where the parties have lived since a right of action accrued, which appears to be barred by the local statute of limitations, does not constitute a valid defense to the merits of the controversy in another state, nor can it be set up as a bar to the action. If merely the remedy upon the cause of action has ceased to exist, in consequence of the statute of limitations of the state where the obligations or duties involved arose, an action upon the merits may be maintained in another jurisdiction. The foreign limitation in such a case is designed to regulate or limit the use that may be made of local procedure, and not to apply to or modify the essential duties assumed by the parties, or to regulate or limit their method of procedure in another forum. This is in effect a finding of legislative intention, which has been so often recognized and enforced by common-law courts that it has assumed the form and force of positive law in most jurisdictions.

Nearly 100 years ago Judge Story held, in Le Roy v. Crowninshield, 2 Mason, 151, 176, Fed. Cas. No. 8,268, that a plea of the statute of limitations of the state where a contract was made is no bar to a suit brought in a foreign tribunal to enforce the contract. This result was reached, notwithstanding his severe criticism of the doctrine which upon principle he believed was wrong, because:

"The error, if any has been committed, is too strongly ingrafted into the law, to be removed without the interposition of some superior authority."

See Story, Confl. Laws, § 576; Townsend v. Jemison, 9 How. 407, 13 L. Ed. 194; 1 Wood, Lims. 36.

Although the parties had lived in the state under whose laws the liability was incurred until the statutory limitation of that state took effect, it has been held in accordance with the general rule that such limitation was of no avail in the courts of another state. Perkins v. Guy, 55 Miss. 153, 30 Am. Rep 510; Bulger v. Roche, 11 Pick. (Mass.) 36, 22 Am. Dec. 359; Townsend v. Jemison, supra; Thompson v. Reed, 75 Me. 404. And Wharton (2 Confl. Laws, § 537), says:

"This is undoubtedly the rule in the absence of a statute of the forum to the contrary."

See Wood, Lims. 323; Angell, Lims. 62.

In Paine v. Drew, 44 N. H. 306, 320, the general rule was stated as follows:

"We believe that the authorities, both from the civil and the common law, concur in establishing the rule that the nature, validity, construction, and effect of contracts is to be determined by the law of the place where the contract is made or is to be performed (lex loci contractus), but that all the remedies for enforcing such contracts are regulated by the law of the place where such remedies are pursued (lex fori), and that ordinarily the statute of limitations of a state does not in any way attach itself to or affect the contract; it is no part of the lex loci, but affects and limits the remedy merely, and belongs purely to the lex fori; that it does not operate as a discharge of the contract, or as a defense against the contract itself, but is interposed as a bar to the maintenance of an action; it limits the time, within which the remedy must be pursued or applied."

It was accordingly held that an action may be maintained in our courts, when not barred by our statute of limitations, upon a contract made in another state, though action thereon was barred by the statute of that state. Doubtless it would be competent for the Legislature to provide that when a foreign statute of limitations has become a bar to the maintenance of a suit upon a cause of action which arose in such foreign jurisdiction, it may be pleaded in bar of such suit here. Wharton, Confl. Laws, § 537a. But in the absence of such legislative provision, the remedial procedure of another state or country cannot be enforced by the courts of this state.

This principle of construction, however, is not of unlimited application. It is usually confined to causes of action which are recognized at common law, and which are not discharged under the foreign law by the statutory lapse of time. 1 Wood, Lims., § 8; Lamberton v. Grant, 94 Me. 508, 518, 519, 48 AtL 127, 80 Am. St. Rep. 415; Eingartner v. Steel Co., 103 Wis. 373, 79 N. W. 433, 74 Am. St. Rep. 871; Davis v. Mills, 194 U. S. 451, 454, 24 Sup. Ct. 692, 48 L. Ed. 1067; The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; Rodman v. Railway, 65 Kan. 645, 70 Pac. 642, 59 L. R. A. 704; Negaubauer v. Railway, 92 Minn. 184, 99 N. W. 620, 104 Am. St. Rep. 674, 2 Ann. Cas. 150.

With reference to so much of the bridge as was in Canada, the burden is on the plaintiff to show that it has a valid cause of action under the law of that country against the defendant for the injury alleged. The claim is made that it is entitled to recover under the statute of Canada, as well as at common law. The defendant pleads that the plaintiff's cause of action is barred because it was not brought within the time limited by the Canadian statute. The plaintiff, admitting that it could not sustain its action in Canada, because of the limitation, insists that the cause of action alleged was not affected by the mere expiration of the time limit within which suit could be sustained in that country, because the limitation related to the remedy and not to the right. The defendant insists that the expiration of the limitation destroyed the right as well as the remedy.

The question thus presented is whether the statutory limitation of Canada in its application to the plaintiffs alleged cause of action is merely remedial and of no effect in this state, or whether it also obliterated the right upon which an action might have been maintained before the limitation expired. In effect this court is asked to construe the Canadian statute; that...