Northern Central Co. v. Scholl

16 Md. 331, 1860 Md. LEXIS 71

Opinion

Le Grand, C. J.,

delivered the opinion of this court.

This suit was brought by the intestate of the appellee Against the appellant, to recover the value of a slave for life, belonging to said intestate, and lost to him, by being transported in the' cars over the railway of the appellant. The declaration contains two counts; the first of which alleges, that the appellant transported said slave in its cars, whereby he was enabled to escape, and did escape, and was wholly lost to the plaintiff; the second count was in trover. The plea was, not guilty, on which issue was joined. It was agreed that all errors in pleading should be released; and, also, that all statutes of Maryland and of Pennsylvania might be read from the printed statutes of those States.

Proof was given, at the trial, of the ownership and value of the slave, and that the slave was last seen at the home of his master, in Frederick county, Maryland, on the evening of Whitsunday of 1855; and that he was next seen on Whitmonday, in Hanover, Pennsylvania, by a Mr. Epply, in company with two other slaves, who had also run away, at the same time, from the same neighborhood in Frederick county. At the time Mr. Epply saw them, all three slaves were in the ticket office of the Hanover Branch Railroad; and one of the other slaves had applied for, and had obtained, a ticket for Little York, Pa. The agent of the railroad then inquired of the slave to whom he had sold a ticket, whether the others wanted tickets also. Being answered in the affirmative, the agent proceeded to prepare for the last mentioned slaves, two tickets, and whilst so employed, Mr. Epply asked him, “How he came to give those boys tickets, not knowing whether they had permits, or were free or slaves?” He replid, “That it was not his business to enquire,” and added, “that if a black man called for a ticket, and paid for it, he had as good a right to a seat in the first class cars as any other man.” Epply told the agent that the boys were runaways and that he wanted to arrest them. It was after this notice, given by Epply, — according to his testimony, — that the ticket was given to the slave of the intestate of the appellee. Mr. Lieb, the agent, testifies the ticket was sold before the notice was given to him. The ticket purchased by the slave was a through ticket to York, by which he was entitled to travel over the appellant’s road. There is no direct evidence how far the slave travelled on either the Hanover or the appellant’s road; he was never heard of after the starting of the cars from Hanover. Evidence was given of articles of agree ment entered into on the 12th day of April 1855, between the Northern Central Railroad Company and the Hanover Branch Railroad Company. By the third article of the agreement, the Northern Central Company was to provide an agent, whose duty should be, “to forward and deliver all tonnage at Hanover, to receive and collect the freight thereon, to sell all passenger tickets, and to receive the revenue therefrom accruing from the joint operations of the two companies.”

The plaintiff offered one prayer, which was refused; and the defendant nine prayers, of which, the first, third, sixth, seventh and eighth were granted, and the second, fourth, fifth and ninth were rejected. '

When the instructions which were given to the jury at the request of the defendant are duly considered, to entitle it to a reversal of the judgment rendered against it, one of two proposition must be made out to the satisfaction of this court, Either, that as the sale of the ticket, and-the transportation of the slave, took place within the limits of the State of Pennsylvania, and without those of the State of Maryland, there can be no recovery for the escape of the slave, because slavery is not recognized in Pennsylvania; or, that the jurisdiction of the alleged tort is vested, by the Act of Congress of 1,850, chapter 60, exclusively in the District Court of the United States for Pennsylvania, within whose jurisdiction the said alleged tort was committed.

All the other propositions, contended for by the appellant, it had the benefit of, in the directions given by the court. Indeed, instructions were given to the jury which, in our opinion, were not authorized by the law of the case. In granting the sixth prayer of the defendant, the court gave it every possible advantage; it told the jury if they were of the opinion the slave had escaped from his master into Pennsylvania, and at the time of the sale of the ticket to, and the transportation of, the slave, there was no fact within, the knowledge, of the defendant, or its agent, to warrant the presumption that the negro was a slave but his color, then the plaintiff could not, recover. This direction gave it every advantage to be desired from want of knowledge on the part of the defendant and its agent, and from the laws of Pennsylvania, which do not recognize slavery in negroes. The second prayer of the defendant was properly rejected for the reason, if for none other, that it does not give a proper construction to the articles of agreement between the Hanover road and the defendant. It makes the agent, “as to all sales of through tickets made by him, the agent of the Hanover Company, so far as said tickets authorized a passage over the road and in the cars of said Hanover Company.” The articles of agreement make no such partition of the agency; all that it provided for, is, the partition of the proceeds of sale, <fcc., between the companies. The appointment of the agent is with the defendant, and it alone must be held responsible for the manner in which its appointee discharges his duty. The fourth prayer was also properly rejected; it, in point of fact, denied the sufficienc)7' of the information derived from Mr. Epply, to put the agent on the inquiry whether or not the negro was a slave. If the jury believed the testimony of Epply, nothing, except the title papers to the negro, could have been more specific and positive than were his declarations to the agent, or better calculated to awaken the caution of the latter. The fifth prayer makes it incumbent upon the plaintiff to establish, to the satisfaction of the jury, that the loss of the slave was attributable, wholly, to his being transported from one place to another in Pennsylvania, and that but for such transportation he wouLd not have been lost to the plaintiff. This prayer, if granted, was well calculated to mislead the jury. It is quite possible that had the negro not gone over the railroad that he may have escaped in another direction. That which is complained of is not the passiveness of the defendant, but its active co-operation in facilitating the escape of the slave. By the sale of the ticket he was permitted to travel over the road; and after he had qualified himself by the possession of the ticket to travel, he escaped by the means which it afforded him to do so. There is no evidence whatever in the case, going to show, that he made his escape through any other instrumentality than that of passing over the road of the defendant. If the defendant aided him in his escape froth service, it matters not who assisted in it, the defendant would still be responsible. The ninth prayer asserts the proposition, that inasmuch as slavery does not exist in Pennsylvania, except as to fugitive slaves, and because of the provisions of the Act of Congress of 1850, ■chapter 60, the jurisdiction of the tort complained of is vested in the District Court of the United States for Pennsylvania.

There is no doubt that it is with the courts of Pennsylvania to determine, whether or not they will enforce the laws of Maryland on the subject of negro slavery. The whole matter rests in comity, and, in extending it in any particular case, a foreign tribunal always gives due weight and influence to the spirit and policy of its own institutions. But this case calls for no application of the principle of comity. It is not an appeal to the courts of Pennsylvania, but one by a citizen of Maryland to the courts of his own State.

There is nothing in the Act of Congress of 1850, chapter '60, confining the jurisdiction of torts, like the present, to the federal courts. The seventh section of the Act, which allows damages to the amount of one thousand dollars in certain eases, and which confers jurisdiction on the District courts in action of debt, does not touch the question of value of the escaped slave; that is left where it was previously. Nor, is there anything in the principles of the common law which ousts the jurisdiction of the courts of Maryland, in cases of personal tort committed without its limits. Ever since the celebrated case of Mostyn vs. Fabrigas, Cowper, 161, it has been uniformly held, both in England and this country, that personal torts, committed against a subject of Great Britain, or a citizen of the United States, in a foreign country,- may be redressed by action against the wrong-doer, in the courts of England, or the State courts of the United States. In the case referred to Lord Mansfield suggested a doubt, whether the jurisdiction would exist where neither of the parties were subjects of Great Britain, and the injury was done without the realm; and this doubt, after a very full and Lable argument, was resolved, on principles of public policy, in the negative, in the case of Malony vs. Dows, reported in Abbott’s Reports of Practice Cases, 316. It was there determined, that the courts of one State or country have no jurisdiction of actions between citizens of another State, for damages for purely personal torts committed within the jurisdiction of another State. There, the plaintiff and defendant had been citizens of the State of California, and the false imprisonment and other wrongs complained of were committed in that State. The court, in New York, whilst recognizing the doctrine of the decision in Mostyn vs. Pabi'igas, nevertheless held, that, whether or not it took jurisdiction of a case between citizens of another State, for a wrong done in such other State, was a question to be settled in the discretion of the court, according to what might appear to be the best policy and most conducive to the general good; holding, in the particular case, California, and not New York, to be the proper place where the matter should be investigated and adjudicated. This is a transitory action, and the venue may be laid in any county of the State. Robinson & wife, vs. Armstrong, 34 Maine, 145. In all actions for injuries, ex-delicto, to the person, or to personal property, the venue is in general transitory, and maybe laid in any county, though committed out of the jurisdiction of the court, or out of the King’s dominions. 1 Chitty’s Pleadings, 269, marginal, (Ed. of 1851.)

In the case before the court, the plaintiff is a citizen of Maryland, and his right of property in his negro slaves is recognized by the Constitution of the United States, which is the supreme law of the country; and whilst it is perfectly competent to Pennsylvania, or any other State, to prohibit within its borders, negro or any other kind of slavery of the person, yet, it is beyond its power to authorize its inhabitants, or others, to assist in despoiling its neighbors of their property in slaves. It may, if it pleases, forbid its courts to grant redress for the wrong, but it cannot oust the jurisdiction of the courts of the State of the injured party. Whenever the wrong-doer comes within its limits, he is liable to be made answerable for his tortious acts.

(Decided July 11th, 1860.)

Considering that the defendant had the benefit of every instruction it was entitled to, and that the evidence was sufficient to authorize the jury in finding as they did, we see no reason why the judgment should be disturbed. Although slavery be not established by the laws of Pennsylvania, it is recognized, and its protection guaranteed, by the Constitution of the United States; and a railroad company, in Pennsylvania, has no more right, knowingly, to assist in the escape of a runaway slave, than a wagoner on the high road.

Judgment affirmed.