Van Doren v. Pennsylvania R Co

• Decision Date: 28 March 1899
• Docket Number: 12 September Term.
• Citation: 93 F. 260
• Parties: VAN DOREN v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

93 F. 260

VAN DOREN v. PENNSYLVANIA R. CO.

No. 12 September Term.

United States Court of Appeals, Third Circuit.

March 28, 1899

James L. Kelly (Aaron V. Dawes, of counsel), for plaintiff in error.

Alan H Strong, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and BRADFORD, District judge.

BRADFORD District Judge.

This is an action of tort brought by the plaintiff in error against the Pennsylvania Railroad Company for the recovery of damages for the death of Henry Van Doren which, as alleged in the declaration, resulted from injuries received by him in Pennsylvania through the negligence of the defendant. Laura L. Van Doren is both widow and administratrix of the deceased. She declared in the latter capacity. A general demurrer to the declaration was filed; the defendant subsequently specifying causes of demurrer as follows:

'1. Because the said declaration does not allege that the plaintiff is a resident of the state of New Jersey.

'2. Because neither the negligence of the defendant nor the injury to said Henry Van Doren from which the said supposed cause of action arose occurred within the state of New Jersey.'

By the practice in the court below, conforming by virtue of section 914 of the Revised Statutes of the United States to that of the state courts of New Jersey, the defendant was confined to the causes of demurrer specified. The court below sustained the demurrer on each of the grounds above mentioned and gave final judgment for the defendant November 10, 1897. Subsequently the plaintiff applied to the court 'to permit Laura L. Van Doren to declare as the widow of Henry Van Doren in conformity with the requirement of the statute of Pennsylvania, and to substitute the widow of Henry Van Doren for his administratrix as the plaintiff. ' This application was refused, the learned judge below saying, 'Though it happens that the administratrix and widow are one in name, the right of action is different and suit should be begun de novo. The motion to amend is denied. ' The errors assigned are as follows:

'First. That the said judge adjudged that because the injury mentioned in the said record occurred in the state of Pennsylvania, the same was not cognizable before the United States circuit court for the district of New Jersey.

'Second. Because the said judge illegally adjudged that the said declaration lacked an allegation of the residence of the plaintiff.

'Third. Because the said judge illegally gave judgment in favor of the defendant, whereas by law upon the record judgment should have been given for the plaintiff.

'Fourth. Because the said judge illegally gave judgment final in favor of the defendant, whereas by the law of the land judgment should have been given in favor of the defendant with leave to the plaintiff to amend her declaration.'

By the act of congress of August 13, 1888, relating to the jurisdiction of circuit courts of the United States, it was provided that, 'where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.' 25 Stat. 433. Diversity of citizenship as between the parties sufficiently appears on the face of the declaration, but there is no allegation of the residence of either party in the district of New Jersey. Such residence was not necessary to the general jurisdiction of the court over the cause. A failure to comply with the provision requiring it may be waived by the defendant, and is waived by a general appearance without objection. In Interior Construction Co. v. Gibney, 160 U.S. 217, 16 Sup.Ct. 272, where the provision in question was under consideration, the court said:

'The circuit courts of the United States are thus vested with general jurisdiction of civil actions, involving the requisite pecuniary value, between citizens of different states. Diversity of citizenship is a condition of jurisdiction, and, when that does not appear upon the record, the court, of its own motion, will order the action to be dismissed. But the provision as to the particular district in which the action should be brought does not touch the general jurisdiction of the court over such a cause between such parties; but affects only the proceedings taken to bring the defendant within such jurisdiction, and is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election; and the defendant's right to object that an action, within the general jurisdiction of the court, is brought in the wrong district, is waived by entering a general appearance, without taking the objection.'

A general appearance having been entered in this case without an objection that neither of the parties resided in New Jersey, the court below was clearly in error in sustaining the demurrer on the first ground.

Was the demurrer sustainable on the second ground? Section 19 of the Pennsylvania act of assembly of April 15, 1851 (P.L. 669), is as follows:

'Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.'

Section 1 of the Pennsylvania act of April 26, 1855 (P.L. 309), is as follows:

'The persons entitled to recover damages, for any injury causing death, shall be the husband, widow, children or parents of the deceased, and no other relative, and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors.'

Section 2 of the same act provided that 'the declaration shall state who are the parties entitled in such action,' and that 'the action shall be brought within one year after the death, and not thereafter.'

Sections 1 and 2 of the New Jersey act of assembly of March 3, 1848 (1 Gen.St.N.J.p. 1188), are as follows:

'Section 1. That 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 and 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 felony.

'Sec. 2. That every such action shall be brought by and in the names of the personal representatives of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person; provided, that every such action shall be commenced within twelve calendar months after the death of such deceased person.'

These several statutory provisions were in force at the time of the alleged injury resulting in death and still continue operative. The widow of Henry Van Doren, instead of suing as such widow under the Pennsylvania statute of April 15, 1851 brought an action as his administratrix, basing it upon the New Jersey statute above mentioned. A civil action to recover damages for death resulting from negligence was unknown to the common law. It can be maintained only by virtue of a statute creating it; and any recovery must be within the measure of relief accorded by the statute and at the suit of the person or persons on whom the statute confers the right of action. It appears from the declaration that Henry Van Doren died in New Jersey as the result of his injury in Pennsylvania. Both the alleged negligence and such injury, aside from death, wholly occurred in the latter state. Did the New Jersey statute on the one hand, or the Pennsylvania statute on the other, create the cause of action in this case? An action under either of these statutes is founded in tort. The tort, which is the gist of the action, is negligence, unlawful violence or a wrongful act proximately causing personal injury resulting in death. While the action lies to recover damages for death, death does not constitute the tort. The fact of death is not the tort, but its consequence. Negligence, unlawful violence or a wrongful act is the tort, although death must result from injury caused by such negligence, violence or act before the statutory provision confining the action to cases where both the injury and resulting death occur within the state, it is immaterial in an action under the statute of the state in which the injury was received, whether death occurred within or without its limits. In either case death results from tort committed within the state and the loss to surviving relatives is the same. That the place of death should, in the absence of a statute so providing, determine the existence or nonexistence of a cause of action is uncalled for by any principle of state policy and repugnant to justice. We have failed to discover any case in conflict with this conclusion. It is true that Mr. Justice Field, in delivering the opinion of the court in Railway Co. v. Whitton's Adm'r, 13 Wall. 270, used language which at first sight may...