Reasor-Hill Corp. v. Harrison

• Decision Date: 21 January 1952
• Docket Number: No. 4-9643,REASOR-HILL,4-9643
• Citation: 249 S.W.2d 994,220 Ark. 521
• Parties: , 30 A.L.R.2d 1213 CORP. v. HARRISON.
• Court: Arkansas Supreme Court

Page 994

249 S.W.2d 994

220 Ark. 521, 30 A.L.R.2d 1213

REASOR-HILL CORP. v. HARRISON.

No. 4-9643.

Supreme Court of Arkansas.

Jan. 21, 1952.

Dissenting Opinion July 14, 1952.

Talley & Owen, Little Rock, for appellant.

Holland & Taylor and Marcus Evrard, all of Blytheville, for appellee.

GEORGE ROSE SMITH, Justice.

Petitioner asks us to prohibit the circuit court of Mississippi County from taking jurisdiction of a cross-complaint filed by D. M. Barton. In the court below the petitioner moved to dismiss the cross-complaint for the reason that it stated a cause of action for injury to real property in the state of Missouri. When the motion to dismiss was overruled the present application for prohibition was filed in this court.

The suit below was brought by the Planters Flying Service to collect an account for having sprayed insecticide upon Barton's cotton crop in Missouri. In his answer Barton charged that the flying service had damaged his growing crop by using an adulterated insecticide, and by cross-complaint he sought damages from the petitioner for its negligence in putting on the market a chemical unsuited to spraying cotton. The petitioner is an Arkansas corporation engaged in manufacturing insecticides and is not authorized to do business in Missouri.

The question presented is one of first impression: May the Arkansas courts entertain a suit for injuries to real property situated in another State? For the respondent it is rightly pointed out that if the suit is not maintainable Barton has no remedy whatever. The petitioner cannot be served with summons in Missouri; so unless it is subject to suit in Arkansas it can escape liability entirely by staying out of Missouri until the statute of limitations has run. See Leflar, Arkansas Law of Conflict of Laws, § 4. The petitioner answers this argument by showing that with the exception of the Supreme Court of Minnesota every American court that has passed upon the question (and there have been about twenty) has held that jurisdiction does not exist.

We agree that the weight of authority is almost unanimously against the respondent, although in some States the rule has been changed by statute and in others it has been criticized by the courts and restricted as narrowly as possible. But before mechanically following the majority view we think it worthwhile to examine the origin of the rule and the reasons for its existence.

The distinction between local and transitory actions was recognized at the beginning of the fourteenth century in the common law of England. Before then all actions had to be brought where the cause of action arose, because the members of the jury were required to be neighbors who would know something of the litigants and of the dispute as well. But when cases were presented that involved separate incidents occurring in different communities the reason for localizing the action disappeared, for it was then impossible to obtain a jury who knew all the facts. Consequently the courts developed the distinction between a case that might have arisen anywhere, which was held to be transitory, and one that involved a particular piece of land, which was held to be local. Within a short time this distinction was embodied in English statutes. Holdsworth's History of English Law, vol. 5, pp. 117-118.

As between judicial districts under the same sovereign the rule has many advantages and has been followed in America. As between counties our statutes in Arkansas require that actions for injury to real estate be brought where the land lies. Ark.Stats.1947, § 27-601. But we permit the defendant to be served anywhere in the State, § 27-618; so the plaintiff is not denied a remedy even though the defendant is a resident of another county.

The English courts, in developing the law of local and transitory actions, applied it also to suits for injuries to real property lying outside England. If, for example, there had been a trespass upon land in France, the courts would not permit the plaintiff to bring suit in England, even though the defendant lived in England and could not be subjected to liability in France. The American courts, treating the separate States as independent sovereigns, have followed the English decisions.

In the United States the leading case is unquestionably Livingston v. Jefferson, Fed. Cas. No. 8411, 1 Brock 203. That suit was a part of the famous litigation between Edward Livingston and Thomas Jefferson; see Beveridge's Life of John Marshall, vol. 4, pp. 100-116. The case was heard by Marshall as circuit justice and Tyler as district judge. Both agreed that the suit, which was for a wrongful entry upon land in Louisiana, could not be maintained in Virginia. In Marshall's concurring opinion he examined the English precedents and concluded that the law was so firmly established that the court was bound to follow it, though Marshall expressed his dissatisfaction with a rule which produced 'the inconvenience of a clear right without a remedy.'

Since then the American courts have relied almost uniformly upon the Livingston case in applying the rule to interstate litigation in this country. At least three reasons have been offered to justify the rule, but it is easy to show that each reason is more applicable to international controversies than to interstate disputes.

First, the ground most frequently relied upon is that the courts are not in a position to pass upon the title to land outside the jurisdiction. As between nations this reasoning may be sound. The members of this court have neither the training nor the facilities to investigate questions involving the ownership of land in France, in Russia, or in China. But the same difficulties do not exist with respect to land in another State. In our library we have the statutes and decisions of every other State, and it seldom takes more than a few hours to find the answer to a particular question. Furthermore, the American courts do not hesitate to pass upon an out-of-state title when the issue arises in a transitory action. If, for example, Barton had charged that this petitioner converted a mature crop in Missouri and carried it to Arkansas, our courts would decide the case even though it became necessary to pass upon conflicting claims of title to the land in Missouri. Again, a suit for damages for nonperformance of a contract to purchase land is transitory and may be maintained in another State, even though the sole issue is the validity of the seller's title. To put an extreme example, suppose that two companion suits, one local and one transitory, were presented to the same court together. In those States where the courts disclaim the ability to pass upon questions of title in local actions it might be necessary for the court to dismiss the local action for that reason and yet to decide the identical question in the allied transitory case.

Second, it has been argued that since the tort must take place where the land is situated the plaintiff should pursue his remedy before the defendant leaves the jurisdiction. This argument, too, has merit when nations are concerned. A sovereign, by its control of passports and ports of entry, may detain those who wish to cross its borders. But the citizens of the various States have a constitutional right to pass freely from one jurisdiction to another. Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744. In the case at bar the poison was spread by airplane, and Barton could hardly be expected to discover the damage and file an attachment suit before the pilot returned to his landing field in Arkansas.

Third, there is an understandable reluctance to subject one's own citizens to suits by aliens, especially if the other jurisdiction would provide no redress if the situation were reversed. This was the main basis for the dissenting opinion in the Minnesota case to which we have alluded, Little v. Chicago, St. P., M. & O. Ry. Co., 65 Minn. 48, 67 N.W. 846, 33 L.R.A. 423; 60 Am.St.Rep. 421. One may have some sympathy for this position in international disputes, but it has no persuasive effect when the States are involved. We do not feel compelled to provide a sanctuary in Arkansas for those who have willfully and wrongfully destroyed property, torn down houses, uprooted crops, polluted streams, and inflicted other injuries upon innocent landowners in our sister States. Yet every jurisdiction which follows the rule of the Livingston case affords that refuge to any person--whether one of its citizens or not--who is successful in fleeing from the scene of such misdeeds.

The truth is that the majority rule has no basis in logic or equity and rests solely upon English cases that were decided before America was discovered and in circumstances that are not even comparable to those existing in our Union. Basic principles of justice demand that wrongs should not go unredressed. Our own Bill of Rights puts the matter well enough: 'Every person is entitled to a...