White v. The Rio Grande Western Ry. Co.

• Decision Date: 21 February 1903
• Docket Number: 1374
• Citation: 25 Utah 346,71 P. 593
• Court: Utah Supreme Court
• Parties: JOHN E. WHITE and ANN WHITE, Appellants, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Respondent

71 P. 593

25 Utah 346

JOHN E. WHITE and ANN WHITE, Appellants, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Respondent

No. 1374

Supreme Court of Utah

February 21, 1903

Appeal from the Third District Court, Salt Lake County.-- Hon. C. W Morse, Judge.

Action to recover damages for the death of the plaintiffs' son alleged to have been caused by the negligence of the defendant. From a judgment dismissing the action for want of jurisdiction, the plaintiff appealed.

REVERSED.

C. S Patterson, Esq., and G. W. Moyer, Esq., for appellants.

Messrs Bennett, Sutherland, Van Cott & Allison, for respondents.

BASKIN C. J., delivered the opinion of the court. BARTCH, J.,concurring in the result. HART, District Judge, concurring in judgment.

OPINION

BASKIN, C. J.

STATEMENT OF FACTS.

This is an action in which the plaintiffs sought to recover, under the provisions of chapter 6, Code Civil Procedure, damages arising from the death of their son, Thomas F. White, alleged to have been caused by the negligence of the defendant. It is stated in the second amended complaint that the alleged acts of negligence which caused the death of their son occurred in Carbon county, and that he died from the effects of said negligent acts in Salt Lake county. The action was brought in Salt Lake county. It is admitted that the plaintiffs reside in Salt Lake county. The case was dismissed on the ground that the court below had no jurisdiction of the action.

BASKIN, C. J., after a statement of the case as above, delivered the opinion of the court.

It is provided in article 8, section 5, of the Constitution, that "all civil and criminal business arising in any county, must be tried in such county, unless a change of venue be taken, in such cases as may be provided by law." The appellants claim that under this provision the proper venue in this case is Salt Lake county, and the respondent contends that it is in Carbon county. "Business" is "a word of large signification, denoting the employment or occupation in which a person is engaged to procure a living. 'Business' and 'employment' are synonymous terms, signifying that which occupies the time, attention, and labor of men for purposes of a livelihood or for profit; a calling for the purposes of a livelihood." Anderson's Law Dict. The definitions contained in the other dictionaries and various lexicons are substantially the same as above. An action is "the legal and formal demand of one's right from another person or party, made and insisted upon in a court of justice. . . . It is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Black's Law Dict. The constituent elements of a legal cause of action consist of a wrongful act by the defendant, or the omission by him of a legal duty which he owes to the plaintiff, and of either the material damage to the plaintiff caused thereby or of the damage which the law implies therefrom. Foot v. Edwards, 3 Blatchf. 310, 9 F. Cas. 358, F. Cas. No. 4908; Post v. Campau, 42 Mich. 90, 3 N.W. 272; City of North Vernon v. Voegler, 103 Ind. 314, 319, 2 N.E. 821. When however, no damage is implied by law from the wrong or the omission of the legal duty, and only trifling or immaterial damage results therefrom, the maxim, "De minimis non curat lex," applies, and no cause of action arises. Suth. Dam., sec. 3; Mech. Agency, sec. 474; Cooley, Torts (2 Ed.), p. 66 et seq.; Paul v. Slason, 22 Vt. 231, 238, 54 Am. Dec. 75; McAllister v. Clement, 75 Cal. 182, 16 P. 775; Knight v. Abert, 6 Pa. 472, 47 Am. Dec. 478. The right of action springs from the cause of action, but does not accrue until all of the facts which constitute the cause of action have occurred. The word "business" is not synonymous with the word "action," and is not an element either of a cause or right of action. Although "business" is a word of extensive signification under any legal or general definition of the term, it is meaningless in the connection in which it is used in the Constitution, and the clause in which it occurs can be made intelligible only by substituting in its place the words "causes of action."

It is a rule of statutory construction that "where one word has been erroneously used for another, or a word omitted, and the context affords the means of correction, the proper word will be deemed substituted or supplied." Suth. Stat. Const., sec. 260; 17 Am. and Eng. Ency. of Law, pp. 19, 20. This rule is equally applicable in construing a Constitution or other written instruments. It is apparent from the context of the clause of the Constitution before quoted that it was the intention of the framers of the Constitution to require criminal and civil causes of action arising in any county to be tried in such county, unless the venue should be changed; and, as business is not one of the elements on either an action, or of a cause of action, or a right of action, especially in respect to criminal actions or actions arising from torts, it is equally apparent that that word was erroneously used instead of the term "causes of action." Therefore, in construing the clause under consideration, the latter words must be substituted for the former. The clause, after the substitution, is still so indefinite and general as to render it necessary in each case in which the venue is made an issue to resort to the common law in order to determine whether the venue has been properly laid.

In the case at bar no injury resulted to the plaintiffs from the alleged negligence of the defendant until the death of the said Thomas F. White. Therefore his death, and not the negligence of the defendant, was the proximate cause of the injury for which the plaintiffs seek to recover. Both the alleged negligence of the defendant and the death of the said Thomas F. White, which resulted therefrom, were, however, material and traversable facts, which the plaintiffs, to maintain the action, were required to prove. As one of these facts occurred in Carbon county and the other in Salt Lake county, the cause of action may be said to have arisen in either county; and under the common law, which in that respect is in force in this State, the plaintiffs had a right to bring the action in either of said counties.

In Bulwer's Case, 4 Coke, pt. 7, p. 49, which was decided during the reign of Elizabeth, it was held that " in all cases where the action is founded upon two things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action, there the plaintiff may choose to bring the action in which of the counties he will." This is a correct statement of the common law upon the subject, and it has been generally sustained and applied by the common law courts of England and by both the Federal and State courts of this country. Mayor, etc., of London v. Cole, 7 Term R. 583; Scott v. Brest, 2 Term R. 238-241; Leveridge v Hoskins, 11 Mod. 257, 258; Sutton v. Clarke, 6 Taunt. 29; Bacon's Abridg., 81; Chitty's Plead., 269; Stephen's Plead.; 3 Starkie's Ev., 1650; Foot v. Edwards, 3 Blatchf. 310, 9 F. Cas. 358, F. Cas. No. 4908; Rundle v. Del. & Raritan Canal, 1 Wall. Jr. 275, 21 F. Cas. 6, F. Cas. No. 12139; Stillman v. White Rock Mfg. Co., 3 Woodb. & M. 538, 23 F. Cas. 83, F. Cas. No. 13446; Slack v. Walcott, 3 Mason 508, 516, F. Cas. No. 12932; Pilgrim v. Mellor, 1 Bradw. 448; Ohio & Miss. Ry. Co. v. Combs, 43 Ill.App. 119; Marshall v. Hosmer, 3 Mass. 23; Barden v. Crocker, 10 Pick. 383; Mannville v. Worcester, 138 Mass. 89, 52 Am. Rep. 261; Oliphant v. Smith, 3 Pen. & W. 180; Gould's Pl. (Hamilton), 114; Gould on Waters, secs. 428, 445-446; Angell on Water-Courses, secs. 420, 421; 22 Ency. Pl. and Pr., 780, note 3. It was sustained and applied by this court in the case of Deseret Irr. Co. v. McIntyre, 16 Utah 398, 52 P. 628. In Foot v. Edwards, 3 Blatchf. 310, 9 F. Cas. 358, F. Cas. No. 4908, Ingersoll, J., said: "It being well settled that in a case of this kind the suit must be brought where the cause of action arose, it becomes essential, in order to determine whether this suit has been brought before the proper court, to determine what is the cause of action. An action is 'the lawful demand of one's right.' The cause of this lawful demand, or the reason why the plaintiff can make such demand, is some act committed by the defendant, and some damage sustained by the plaintiff in consequence thereof. The commission or omission of an act by the defendant, and damage to the plaintiff in consequence thereof, must unite to give him a good cause of action. No one of these facts by itself is a cause of action against the defendant. The wrongful diversion, then, of the water of the stream, in Connecticut, by the defendant, and the consequent damage which the plaintiff's mill in Massachusetts has sustained, constitute the cause of action. A part of that which is essential to the plaintiff's right to recover took place in Connecticut. Without the commission of the act of diversion in Connecticut, there would have been no good cause of action. With it there is a sufficient cause of action. The act of diversion, which arose in Connecticut, and the other fact existing, give to the plaintiffs a cause of action. That which is essential, therefore, to the plaintiff's right of recovery against any one, or their cause of action, arose where the suit has been brought. This conclusion from the principle stated would be quite satisfactory without the authority of adjudged cases to support it. Where two material facts are necessary to give a good cause of action, and they take place in different counties, the cause of action may be...