White v. Rio Grande Western Railway Co.

71 P. 593, 25 Utah 346, 1903 Utah LEXIS 80

• Court: Utah Supreme Court
• Decided: February 21, 1903
• Docket: No. 1374
• Status: Published

Opinions

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 significartion, denoting the employment or. occupation in which a person is engaged to procure a living. ‘Business’ and ‘employment’ are synonymous term®, 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. Foote v. Edwards, 3 Blatchf. 313, Fed. Cas. No. 4908; Post v. Campau, 42 Mich. 96, 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 Pac. 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 1 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 2 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 3 the injury for which the plaintiffs seek to recover. Both the alleged negligence of the defendant and the death of the said Thomas E. White, which resulted therefrom, were, however, material and traversable fad®, 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 eases 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; Foote v. Edwards, 3 Blatchf. 310, Fed. Cas. No. 4908; Bundle v. Del. & Raritan Canal, 1 Wall. Jr. 275, Fed. Cas. No. 12139; Still-man v. White Rock Mfg. Co., 3 Woodb. & M. 538, Fed. Cas. No. 13446; Slack v. Walcott, 3 Mason, 508, 516, Fed. Cas. No. 12932; Pilgrim v. Mellor, 1 Bradw. 448; Ohio & Miss. Ry. Co. v. Combs, 43 Ill. App. 119; Marshal 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 Pac. 628. In Foot v. Edwards, 3 Blatchf. 313, Fed. Cas. No. 4908, Inger-soll, 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 am 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, them, 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 plaintiffs’ right of recovery against any one, or their canse 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 said to arise in either county. Various authorities state the rule as follows: ‘When an action is founded upon two things in different counties, both material to the maintenance of the action, it may be brought in the one county or the other.’ Com. Dig., ‘Action,’ N. 11. ‘Where an injury has been committed in one county to real property situate in another, or wherever the action is founded upon two or more material facts, which took place in different counties, the venue may be laid in either.’ 1 Saunders’ Pl. and Ev., 413. In the case of Scott v. Brest, 2 Term R. 238, Ashurst, I., in speaking on this subject, says: ‘Supposing the. fohindation of the action to have arisen in two counties, I think that, where there are two facts which are necessary to constitute the offense, the plaintiff may ex necessitate lay the venue in either.’ In Bulwr’s Case, 7 Coke 1, it is thus laid down: ‘When matter in one county is depending upon the matter in the other county, there the plaintiff may choose in which county he will bring his action.’ And, ‘If a man doto not repair a wall in Esses which he ought to repair, whereby my land in Middlesex is drowned, I may bring my action in Essex, for there is the default; or I may bring it in Middlesex, for there I have the damage.’ ” In Slack v. Walcott, 3 Mason 516, Fed. Cas. No. 12932, Story, J., said: “The wrong done by stopping the flow of the water by any obstruction or drain in Rhode Island is an injury done to the well itself in Massachusetts. In a just sense, the wrong may be said to be done in both States, like the analogous case of an injury to the land in one county by an act done in another county.” “If a trench cut in the county of N. causes- the plaintiff’s land to be overflowed in the county of W., although the statute requires all actions to be brought and tried in the county where the cause of action arises, the action may be brought and ’tried in W.” Syllabus in Sutton v. Clarke, 6 Taunt. 29.

Respondent’s counsel, in a supplemental brief, requested that our especial attention be given to Boston & M. R. Co. v. Hurd, 56 L. R. A. 218, note “E” (s. c., 47 C. C. A. 615, 108 Fed. 116), and the cases there cited, as follows: Van Doren v. Pennsylvania R. Co., 35 C. C. A. 282, 93 Fed. 260; Louisville & N. R. Co. v. Williams, 113 Ala. 402, 21 South. 938; Derr v. Lehigh Valley R. Co., 158 Pa. 365, 27 Atl. 1002, 38 Am. St. Rep. 848; DeHarn v. Mexican Nat. R. Co., 86 Tex. 68, 23 S. W. 381; Needham v. Grand Trunk R. Co., 38 Vt. 294; Rudiger v. Chicago, St. P., M. & O. R. Co., 94 Wis. 191, 68 N. W. 661. The note referred to reads as follows: “It is also well established that if the injury occurs in one State, and death results therefrom in another, the cause of action is regarded as having arisen in the former State, and is therefore governed by its laws.” As there is no common law remedy for injuries causing the death of a person, the right of the personal representatives or next of kin of the deceased person whose death has been caused by the negligence or wrong of another, to maintain an action for damages on account of. such death, exists only when granted by statute. A statute of a State has no force beyond ■its boundaries. Therefore such a right in a State is solely dependent upon and governed by the terms of the statute which grants the right therein. For this reason, as held in the cases cited in the note referred to, “the right of action necessarily depends in such cases upon the lex loci of the injury, and not the lex foriIn the case of VanDoren v. Pennsylvania R. Co., supra, the negligence occurred in Pennsylvania, and the death resulting therefrom occurred in New Jersey. The suit was instituted in the latter State. A demurrer was interposed on the grounds: “(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.” The lower court sustained this demurrer, and gave final judgment for the defendant. On appeal to the circuit court, Justice Bradford, in the opinion, said: “We are therefore of the opinion that the widow of ÍEenry Van Doren had, under the Pennsylvania statute, a vested right of action to recover damages for the death of her husband, which unquestionably could have been prosecuted either in a court of that State or in the circuit court for the eastern district thereof. Why should it not be prosecuted in the circuit for the district of New Jersey? It is true that the New Jersey statute has no extraterritorial operation, and does not create a right to maintain an action in that State to recover damages for death resulting from personal injury caused by negligence in Pennsylvania. The right of action necessarily depends in such case upon the lex-loci of the injury and not the lex fon. On the other hand, the Pennsylvania statute could not confer jurisdiction on either the State or Federal courts in New Jersey. That statute, however, created a substantial right capable of enforcement in New Jersey by any court otherwise possessing competent jurisdiction, unless such enforcement would conflict with the policy of that State. In our opinion, there would be no such conflict. The leading ease on this subject is Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439, where an action had been brought under theNew •Jersey statute above referred to in a state court of New York by an administratrix, appointed in the latter State, to' recover damages for the death of her husband, resulting from injury ■alleged to have been caused by negligence on the part of the defendant in New Jersey. The action was removed to- the ■circuit court for the northern district of New York. The circuit court held that the action could not be sustained. -The Supreme Court reversed the judgment. . . . The learned judge below, in sustaining the demurrer on the second ground, namely, ‘because neither the negligence of the defendant, nor the injury to said Henry Yan Horen, from which the said supposed cause of action arose, occurred within the State: of New Jersey, was clearly in error. Confined, as the defendant was, to the two causes specified, the demurrer should have been overruled.” While there is some conflict of decisions on this subject, it is generally held that a right given by the statutes of one State will be recognized and enforced in the courts of another State, when not against the policy of the other State, or whose laws grant a similar right. See Thomas, Negligence, Rules, Decisions, and Opinions, p. 496, et seq. In the case of Louisville & Nashville R. Co. v. Williams, 113 Ala. 404, 21 South. 938, the court said: “The principle is too well established to be brought in question that at common law a civil action does not lie for a wrongful act or omission causing the death of a person. The personal representative of the deceased has no manner of right growing out of such ■wrong, unless it is conferred by statute; and when it is so- conferred the statute has no operation upon acts or omissions done ■o-r suffered beyond the limits of the State enacting it. The le^ gal consequences of a person’s acts are determined by the law obtaining when and where the acts are performed. In this State we have a statute yhich gives the personal representative of the deceased a remedy by suit against the wrongdoer to recover a penalty for a wrongful act or omission causing •the death of his intestate, and it is in virtue of this statute alone that the present action is sought to be maintained. The effort is to have this statute overleap the boundary of the State and convert into an actionable wrong alleged conduct of the defendant, which, in the State where it occurred, did not constitute an actionable wrong. Upon plain principles, such an effort must fail.” The other eases cited in support of the note are to the same effect.

Angelí, in bis work on Water Courses, after stating the rule announced in tbe Bulwer ease, says in section 421: “But though it may be true that a wrong done in one State,, injuriously affecting property situate in another State, is, in a just sense, a wrong in both, yet how stands the law as regards the remedy ? The question is not one of venue, but of jurisdiction. It is hardly necessary to point out the difference there is, as regards actions and suits-, between the relation of counties in the same State and the relation between two distinct and independent States.” In the ease of Pilgrim v. Mellor, 1 Bradw. 452, the court said: “Nor is the case of Thompson v. Crocker, 9 Pick. 59, to the point, for in that case the action was commenced in the county of Plymouth, where the injury was sustained; and it w-as held that the suit was properly brought. What was said about that being the only place to bring the action, was mere dictum, and after-wards overruled in Barden v. Crocker, 10 Pick. 383. The case of Eachus v. Trustees of Ill. & Mich. Canal, 17 Ill. 534, and many other cases of that character, were decided upon quite a different principle. There the land injured was situated in a foreign jurisdiction, and for that reason alone the court refused to entertain the action. Angelí, in his treatise on Water Courses (section 421), remarks that it is hardly necessary to point out the difference there is as regards actions and suits between the relation of counties in the same State and the relation between two distinct and independent States.”'

As both Carbon and Salt Lake county are in the same State, which by statute has granted to the plaintiffs the right to maintain an action for the death of their son, which resulted from the negligence of the defendant, the cases quoted in support of the note specially called to our attention are not in point, and do not affect the doctrine of the Bulwer case, which is applicable to the case at bar.

2. The defendant in this case, without demurring to the original complaint on the ground of a want of jurisdiction. or otherwise raising the question of jurisdiction "of the 4 trial court, filed an answer, in which the material allegations were denied, and upon the issues so formed the parties entered upon the trial, and after the plaintiffs rested, the defendant moved for a nonsuit, which was sustained, and a judgment entered dismissing the ease. That judgment, on appeal, was reversed by this court, and the ease was re* manded for a new trial (22 Utah 138). Afterwards the plaintiffs made and filed by leave of the court below the amended complaint hereinbefore mentioned, and the defendant demurred to the same on two grounds: “(1) That the said second amended complaint does not state facts sufficient to constitute a cause of action; (2) that said second amended complaint is uncertain, in that it can not be determined therefrom whether the said decedent died on account of inhaling the alleged impure air in the car, or inhaling the pure air in the open air.” Notwithstanding this demurrer did not specify as one of its grounds that the court had no jurisdiction, it was sustained on that ground, and the ease was accordingly dismissed. Under article 8, section 7, of the Constitution, the district court, in which the action was instituted, is 5 one of general, original jurisdiction. The clause of 'the Constitution requiring actions arising in .any county to be tried in such county does not affect the general jurisdiction of the district courts. Therefore the court below had' jurisdiction over the subject-matter of the action, and a defendant can waive his right, under the Constitution, to have an action against him tried in the county where the cause of action arose; so that, even if it were conceded that the cause of action in the case at bar arose in Carbon county, the defendant waived -its right to have the case tried there both by failing to object to the jurisdiction of the court at the former trial and by demurring to the amended complaint on the sole grounds specified in its demurrer. St. Louis, etc., Ry. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659; Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Central Trust Co. v. McGeorge, 151 U. S. 129, 14 Sup. Ct. 286, 38 L. Ed. 98; Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272. 40 L. Ed. 401; Putney v. Collins et al., 3 Grant, Cas. 72; Fennell v. Guffey, 155 Pa. 38, 25 Atl. 785; Kenney v. Greer, 13 Ill. 432-449, 54 Am. Dec. 439; Tbe Indianapolis & Mad. R. R. Co. v. Solomon, 23 Ind. 534. In tbe case in 160 U. S. 219, 16 Sup. Ct 272, 40 L. Ed. 401, Mr. Justice Gray, in tbe opinion, said: “Tbe act of March 3, 1887, c. 373, as corrected by tbe act of August 13, 1888, c. 866, confers, upon tbe circuit courts of tbe United States original jurisdiction of all civil actions, at common law or in equity, between citizens of different States, in wbicb tbe matter in dispute exceeds, exclusive of interest and costs, tbe sum or value of $2,000; and provides that, ‘where tbe jurisdiction is founded only on tbe fact that tbe action is between citizens of different States, suit shall be brought only in tbe district of tbe residence of either tbe plaintiff or tbe defendant.’ 24 Stat. 552, 25 Stat. 433 [U. S. Comp. St. 1901, p. 514]. Tbe circuit courts of the United States are thus vested with general jurisdiction of civil actions, involving tbe 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, tbe court, of its own motion, will order tbe action to be dismissed. But tbe provision as to tbe particular district in wbicb tbe action shall be brought does not touch tbe general jurisdiction of tbe court over such a cause between such parties, but affects only tbe proceedings taken to. bring tbe defendant within such jurisdiction, and is a matter of personal privilege, wbicb tbe defendant may insist upon or may waive at bis election; and tbe defendant’s right to object that an action within tbe general jurisdiction of tbe court is brought in the wrong district is waived by entering a general appearance without taking tbe objection.” In tbe case in 145 U. S. 603, 12 Sup. Ct. 905, 36 L. Ed. 829, it appears tbat tbe defendants not only demurred, but answered, and tbe second ground of tbe demurrer was tbat tbe petition did not set out a cause of action, and tbe court beld that under such circumstances the defendants could not thereafter challenge tbe jurisdiction of tbe court on tbe ground tbat the suit bad been brought in tbe wrong district. In tbe case in 141 U. S. 132, 11 Sup. Ct. 982, 35 L. Ed. 659, tbe. court said: “Without multiplying authorities on this question, it is obvious that the party who in tbe first instance appears and pleads to tbe merits waives any right to challenge thereafter tbe jurisdiction of tbe court on the ground tbat tbe suit has been brought in tbe wrong district. Charlotte Nat. Bank v. Morgan, 132 U. S. 141, 10 Sup. Ct. 37, 33 L. Ed. 282; Fitzgerald Construction Co. v. Fitzgerald, 137 U. S. 98, 11 Sup. Ct. 36, 34 L. Ed. 608.” In tbe case in 155 Pa. 40, 25 Atl. 785, tbe court said: “The common pleas of Allegheny county has general jurisdiction in actions of covenant. When tbe court has jurisdiction of the subject-matter, and is only restricted from entertaining tbe individual case by some circumstances peculiar to itself, the objection to jurisdiction may be waived. Putney v. Collins, 3 Grant, Cas. 72. It was said by Mr. Justice Strong, in delivering tbe opinion of tbe court in tbat case: ‘In this case tbe defendant’s objection was tbat tbe cause of action was local; tbat the tort complained of bad been committed in Armstrong county, and not in Clarion; and tbat tbe action could only be maintained in Armstrong. This was only an objection to-the power of tbe court to try tbe particular case, and not to its power to try eases of the same general character.’ If we concede tbe defendant’s position, it was too late to take advantage of it after plea pleaded. It was at most a personal exemption, and tbe point should have been raised before tbe trial. By failing to do so be bas waived bis privilege.” A statute of Illinois prohibited tbe suing of a defendant out of the county where he resided, and in the opinion delivered by Mr. Justice Trumbull in the ease in 13 Ill. 450, 54 Am. Dec. 439, it is said: “Its object was to restrict a practice which had before obtained, of suing the defendant in any county of the State which the creditor might elect, and thereby prevent vexation to' a defendant in being wantonly sued in a remote county. The statute gives the defendant a privilege, and, being a privilege, he has, consequently, the right to waive it, and must be regarded as having done so unless he makes his objection to the writ in apt time; for the exception is not to the jurisdiction of the circuit court, which, as before shown, has cognizance of all transitory actions, but to the writ as sued out and returned in a wrong county.”

The judgment is reversed, and the cause remanded. The court below is hereby directed to reinstate and try the case. It is also ordered that the plaintiffs recover their costs.

BARTCIR J. I concur in the result.