Nelson's Adm'r v. Chesapeake & O. Ry. Co

• Decision Date: 31 March 1892
• Citation: 14 S.E. 838,88 Va. 971
• Court: Virginia Supreme Court
• Parties: Nelson's Adm'R v. Chesapeake & O. Ry. Co.

14 S.E. 838

88 Va. 971

Nelson's Adm'R

v.Chesapeake & O. Ry. Co.

Supreme Court of Appeals of Virginia.

March 31, 1892.

Action fob Wrongful Death—Conflict of Laws —Jurisdiction of Domestic Court—Contributory Negligence.

1. An action to recover damages for a death caused by the wrongful act of another, though statutory only, is transitory in its nature; and, whore plaintiff's intestate was killed, through defendant's negligence, in West Virginia, plaintiff properly instituted his action to recover damages therefor in the state of Virginia, where defendant was found, the right to recover in such case to be governed by the law of West Virginia; such law not being inconsistent with the laws or policy of the state of Virginia.

2. In such case a judgment of the Virginia court would be a bar to an action by an administrator appointed in West Virginia, brought in that state against defendant, the rights of the parties being determinable by the laws of that state, which do not provide that suit shall be brought only by a personal representative appointed there.

3. In an action against a railroad company to recover damages for the negligent killing of a brakeman, the declaration alleged that deceased had been ordered to go to the top of a car by his superior, that he was knocked therefrom by bridge timbers, and that he was ignorant of the dangerous character of the bridge. Held, that the mere fact that deceased was standing on top of the car could not of itself be held to have been negligence on his part, and that a demurrer to the declaration was properly overruled.

Error to circuit court of city of Richmond; B. R. Wellfoud, Judge.

Action by the administrator of Andrew Nelson, deceased, against the Chesapeake & Ohio Railway Company to recover damages for the negligent killing of plaintiff's intestate.

The other facts fully appear in the following statement by Lewis, P.:

The declaration states that the deceased, on the 9th of September, 1889, was in the employ of the defendant company as a track laborer on the line of its road in the state of West Virginia; that on that day the company, desiring to transfer the deceased from the point where he was then employed to Hurricane, another point on its line, in the same state, by its agents ordered him to get on top of one of the defendant's box-cars, with a view to his being carried to the last-mentioned point; that while the train was on the way thither, and while it was passing over a certain bridge on the defendant's road, the deceased, without fault on his part, though standing on top of the said boxcar at the time, was instantly killed by being knocked off the ear by a piece of timber on the bridge, only two feet higher than the top of the said car, which connected the sides of the bridge, and which had been negligently allowed to remain there by the company, and of all which the deceased was ignorant. The declaration also states that the deceased, at the time of his death, was a citizen and resident of Virginia, and that the plaintiff duly qualified as his administrator in the county court of Louisa county, in which county the deceased resided; that the latter died unmarried, and without issue, leaving as his sole distributee, under the laws of both West Virginia and Virginia, his father, —

Nelson, who is a citizen and resident of Virginia. The declaration also sets out the material portion of the statute of West Virginia, giving a right of action in cases like the present, and which is averred to be substantially the same as the statute of this state on the same subject. The sections of the statute as set out in the declaration are as follows: " (5) Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree or manslaughter. (6) Every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount recovered in every such action shall be distributed to the parties in the proportions provided by law in relation to the distribution of personal estate left by persons dying intestate. In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased: provided, that every such action shall be commenced within two years after the death of such deceased person." There was a demurrer to the declaration on two grounds, viz.: (1) That the case is not within the jurisdiction of the courts of this state; and (2) because the declaration shows on its face such contributory negligence on the part of the deceased as to bar a recovery. The circuit court sus tained the demurrer, and gave judgment for the defendant, to which judgment the plaintiff obtained a writ of error.

A. K. Leake and Hill Carter, for plaintiff in error.

H. T. Wickham, Henry Taylor, and Wm. J, Robertson, for defendant in error.

Lewis, P. (after stating the facts.) If the statute of West Virginia giving the right to sue in a case like this were a penal statute, it is clear that the present action could not be maintained, for the courts of one state do not execute the penal laws of another, such laws being strictly local. Story, Confl. Laws, §621; The Antelope, 10 Wheat. 66. But the statute is not penal, but compensatory, in its nature; its object being to give a remedy for certain injuries, not as a punishment to the defendant, primarily for the benefit of those who are supposed to have been pecuniarily injured by the death of the deceased. It is contended, however, that the statute, whatever may be its nature, can have no extraterritorial operation, and, therefore, that an action dependent upon it can be maintained only in the state of West Virginia. At common law, all personal ac-tions, whether ex delicto or ex contractu, are transitory, and may be brought anywhere the defendant can be found. Thus, for instance, an assault and battery committed, or a contract made, in one state, may be tho subject of an action in another, if process can be served on the defendant in the latter state. 3 Bl. Comm. 294; Mostyn v. Fabrigas, Cowp. 161; Livingston v. Jefferson, 1 Brock. 203; Payne v. Britton, 6 Rand. (Va.) 101; Watts v. Thomas, 2 Bibb, 458; McKenna v. Fisk, 1 How. 241; 2 Smith, Lead. Cas. (9th Ed.) 967. Independently of statute, however, the general rule is that all torts die with the person. Consequently the right to sue for personal injuries causing death is purely statutory. The question, therefore, arises, whether such a cause of action arising in one state may be asserted in another. There is no doubt that, in a general sense, a statute can have no operation beyond the state in which is it enacted. But where a right to sue is given by statute in one state, we can see no good reason why am action to enforce that right should not be entertained in the courts of another state, on the ground of comity, just as if it were a common-law right, provided, of course, it be not inconsistent with the laws or policy of the latter state. If this were not so, a cause of action a rising in a state whose laws are codified could not be asserted in another state, because the right to sue is statutory. The true test, therefore, in all such cases would seem to be this: Is the foreign statute contrary to the known policy, or prejudicial to the interest, of the state in which the suit is brought? And if it is not, then it makes no difference whether the right asserted be given by the common law or by statute. There are undoubtedly cases which hold a contrary doctrine. Woodard v. Bailrond Co., 10 Ohio St. 121; Richardson v. Railroad Co., 98 Mass. 85; McCarthy v. Railroad Co., 18...