Gunther v. Dranbauer

• Citation: 86 Md. 1,38 A. 33
• Parties: GUNTHER v. DRANBAUER.
• Decision Date: 22 June 1897
• Court: Court of Appeals of Maryland

38 A. 33

86 Md. 1

GUNTHER

v. DRANBAUER.

Court of Appeals of Maryland.

June 22, 1897.

Appeal from superior court of Baltimore city.

Action by Charles A. Dranbauer against George Gunther. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, BRYAN, BOYD, and ROBERTS, JJ.

J. Fred Requardt, A. H. Robertson, and Thos. G. Hayes, for appellant.

David Stewart, Redmond C. Stewart, and Rand. Barton, Jr., for appellee.

McSHERRY, C. J. This suit was instituted by the appellee against the appellant in the superior court of Baltimore city. The declaration contains three counts. In the first it is alleged that the defendant placed or caused to be placed in a public highway of Baltimore county, at the intersection of Third and O'Donnell streets, in Canton, a block, or wooden beam, which was so placed as to obstruct the highway, and during the nighttime was left without placing any light to indicate danger, and that in consequence of such negligent and improper conduct of the defendant the plaintiff, in passing along the highway, and using due care himself, drove over the obstruction, and was thrown out of his wagon, and seriously injured. The second count charges that the defendant constructed a footwalk in front of his houses, leaving a portion of his land to be used as a roadway, and upon said roadway, where wagons passed, he placed a block, or wooden beam, so as to obstruct the roadway, whereby the plaintiff, using due care, etc., as in the first count. The third count sets forth that the defendant placed or caused to be placed at the edge of the public highway a block, or wooden beam, so as to cause a dangerous obstruction to those using the said road or highway, and placed the same in an improper and negligent manner, and left the same upon the night of a certain day, without placing any light or signal of danger thereupon; and that the plaintiff, while driving along the road in a wagon, accidentally, and without fault on his own part, drove said wagon against the said block or beam, whereby he was thrown out and injured, etc. To the whole declaration, and not to each count thereof, a demurrer was filed, and it is insisted that the demurrer should have been sustained, because, the injury having occurred in Baltimore county, and the action being a local, and not a transitory, one, the superior court of Baltimore city had no jurisdiction to try it. The court below overruled the demurrer, and in doing so committed, it seems to us, no error whatever. It is undoubtedly true that local actions must be brought in the jurisdiction where they arise, while transitory actions may be instituted wherever the defendant happens to be. The difficulty met with in practice consists not so much in a dispute over this elementary principle as in the application of it, and the chief perplexity encountered in its application springs from a failure to clearly distinguish between what are local and what transitory actions. Speaking generally, it has been said: "If the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought in the county or place in which it arose. Actions for damages to real property, actions on the case for nuisances, or for the obstruction of one's right of way, are, according to all the authorities, local. On the other hand, actions for injuries to the person or to personal property, actions on contracts, and in fact all actions founded on transactions which might have taken place anywhere, are transitory." Crook v. Pitcher, 61 Md. 513; 1 Chit. Pl. (8th Ed.) 268. But there must be a test by which it may be determined whether a particular cause of action sounding in damages is local or transitory; and an unerring one inheres in the nature of the subject of the injury as differing from the means whereby, and the mere place at which, the injury was inflicted. If the subject of the injury be real estate, or an easement, such as a right of way, whether private or public, obviously the action must be local, for the reason that the Injury to that particular real estate or easement could not possibly have arisen anywhere else than where the thing injured was actually situated. But, if the subject of the injury be an individual, then an injury to that individual's person, no matter by what means occasioned or where inflicted, is essentially an injury to a subject not having a fixed, stationary, immovable location; and an action to recover damages therefor would necessarily be transitory. To borrow an apt illustration used in Mason v. Warner, 31 Mo. 508: "If an agistor of cattle open a pit in his field, and negligently leave it open, whereby my horse at pasture is permitted to fall into it, and is killed, the means and place of injury are local, but the subject of injury—the horse —is transitory, and capable of injury as well at one place as another. But if my horse trespass upon the agistor's field, break the close, and tread down and eat the grass, here the means of injury (the horse) is movable, transitory, but the subject of injury (the realty) is immovable, local, and therefore not capable of being injured at any other place." It is apparent that an injury to a person on a highway is not an injury to the highway. It does not follow that because an injury to a person occurs on a highway the right of such person to use the highway is indispensably at issue. An action founded on and growing out of an obstruction of a highway, and raising distinctively and specifically the plaintiff's right to use the way, is essentially a local action, because it involves an interest in the local, fixed subject itself; but an injury happening to an individual on that same highway by reason of any tort or wrongful act of another is not necessarily an injury to the bare right of user, even though an obstruction of the highway may be incidentally concerned as a mere instrumentality immediately producing the injury complained of. If the pending action involved the right of the plaintiff to use the alleged highway; if he claimed a right to use it, and the defendant obstructed the way, and by that or other means denied the existence, or interfered with the exercise of, the asserted right,—the cause of action would indisputably be local. The right of the plaintiff in or to the use of the highway would then be the subject of the injury. But there is no issue here as to the right of the plaintiff to use the highway. The suit was not brought to recover damages for an interference with the plaintiff's right of user, but to recover for a materials, and by one of his other books saved from the fire that the cost paid for manufacturing during the same period had been 535,311.04; making a grand total of $165,263.50. He likewise demonstrated from his day bock, or book of sales, that his sales during the same period had been $169,215.25, and that the average or usual profit included in this gross amount of sales was 40 per cent., or $48,347, which, on being deducted from the gross amount of sales, showed the cost value of the manufactured articles sold to be $120,868.25, and, that sum being deducted from $165,263.50,...