| Mich. | Oct 26, 1869
Miller sued the Kailway Company for damages on account of his expulsion from their cars, which he averred to have been done ' at a distance from any dwelling or usual stopping place. All of the counts in the declaration alleged him to have been a passenger who had complied
He stated on the trial that he then resided in Chatham, Ontario ; but in answer to an inquiry whether he was a citizen of Canada, said-he was a native of Michigan and a citizen, as he supposed.
A statute of Canada was given in evidence providing that “any passenger refusing to pay his fare, and his baggage, may, by the conductor of the train and the servants of the company, be put out of the cars at any usual stopping place, or near any dwelling house, as the conductor elects, the conductor first stopping the train, and using no unnecessary violence.”
Evidence was given and met by counter evidence, concerning the facts which would determine his right as a passenger.
The case was also, put to the jury on the claim that, even though not complying with his duties as such, he was entitled to damages for having been put off contrary to the statute, at a distance from any station or house. And on this the Court charged “that if the jury find that the plaintiff was put out of the defendants’ cars, not at any usual stopping place, or not near any dwelling house, the plaintiff is entitled to recover, even though he had no ticket, and had made no valid tender of his fare.” Error ■is assigned upon this ruling. The jury rendered a verdict of three thousand dollars against the defendants.
■ As the view we take of the. case will require a new trial, it will become necessary for us to consider all the principal questions presented, and which will be raised again unless now disposed of.
The liability for putting a person off from the cars at a'distance from any dwelling, or station, is purely statutory, and no damages can be recovered for that specific grievance, unless the statutory provision is set out and a case made out under it by the pleadings. A carrier is not
While in his special counts the plaintiff has alleged that he was expelled from the cars at a distance from any station or dwelling, he has not averred-any thing to show that the law of Canada has made this a distinct grievance, and has not set up any cause of action depending upon it in whole or in part. He has throughout placed himself on the footing of a passenger rightfully in the cars, and entitled to complain of any expulsion whatever as wrongful.
The charge complained of, authorized him to recover, although he might have been on the cars without any pretense of right, and there is nothing in the declaration to warrant it.
It was urged on the hearing that the Railroad Company could not be held liable for any wrongful expulsion under this statute, because it would be the personal wrong of the conductor in violation of law, for which he must be held to have exceeded his known agency. And the same exemption was claimed for them from liability for any expulsion, unless under circumstances where they may be supposed to have authorized it by their instructions general or special. There is, however, so far as we have seen, no authority Avhich would exempt them from some amount of responsibility for any wrongful expulsion of a passenger by a conductor. He represents them in the whole management of his train, and the power to do any serious mis
But it does not follow that the responsibility of his employers is the same as his. For those aggravations which may arise out of his wantonness and malice we have held that the employer is not on the same footing with the agent. The subject was discussed in Detroit Daily Post Company v. McArthur, 16 Mich. R., 447. This case does not seem to have been noticed on the trial, as we infer from the amount of the verdict, and the omission of counsel to cite it.
The voluntary appearance of the defendant below renders any discussion of the subject of the venue unnecessary. There can be no doubt that the locality of the trespass does not of itself oust the jurisdiction, where the Court has lawfully obtained control over the parties. But where the parties are not residents of the United States, and the trespass was committed abroad, the right of action in our courts can only be claimed as a matter of comity, and they are not compellable to proceed in such cases. It is not to be denied that much hardship is likely to arise where a person is called upon to defend himself against a charge arising out of transactions occurring at a distance? and out of the jurisdiction. Witnesses cannot always be compelled or induced to be present at the trial, and where a knowledge of localities becomes essential it is impossible to obtain a view by the jury. Questions of foreign law may, as in this case, become important elements of decision. We think that when by the pleadings, or upon the trial, it appears that our tribunals are resorted to for the purpose of adjudicating upon mere personal torts committed abroad, between persons who are all residents where the tort was committed, the inconveniences and the danger of injustice
The judgment must be reversed with costs and a new trial granted.