136 Ky. 162 | Ky. Ct. App. | 1909
Opinion of the Court by
— Reversing.
The petition contains, in substance, the further averments that appellees’ lines of railroad respectively run through Kentucky and Tennessee, and through Whitley county, in the state first named, to the city of Jellico, which is situated' in both states and divided by an invisible line separating them; that the depot yard in Jellico is partly in Kentucky and partly in Tennessee, and contains many railroad tracks and switches, some of which lie in Kentucky and some in Tennessee; that the depot yard as well as the tracks and switches in the yard are jointly owned, occupied, and used by appellees, Southern Railway Company and Louisville & Nashville Railroad Company; that the car containing the dynamite- or nitroglycerine was at the time of the explosion of its contents standing on a track of appellees’ depot yard that was situated in Whitley county, Ky., and that appellant’s housé destroyed by the explosion
In refusing to take jurisdiction of the case, the circuit court seems to have acted upon the theory that the action is one for an injury to real property, and, therefore, it should have been brought in the state and county where the property is situated as provided by section 62, subsec. 4, Civ. Code Prac. The Code of this state can not regulate the venue of actions that may be brought in Tennessee. Its provisions apply to actions that arise or may be brought in this state; so the question whether appellant has a cause of action in Tennessee for the destruction of his house and in what county thereof it should be brought, would have to be determined by the laws of that state, or by the common law. The question here presented for decision, however, is not whether appellant has a remedy under the laws of Tennessee, but whether he may maintain an action in this state for the alleged destruction of his house, and, if so, where. Accepting as true the averments of the petition, and this we must do upon demurrer, even for the purpose of determining the question of jurisdiction, that the negligence which caused the explosion and the explosion itself occurred in Kentucky, instantaneously, resulting in the destruction of appel
It has long been a familiar rule of the criminal law, and.is now a part of the statute law of this state, that when an offense grows out of an act or acts begun in one county or state, and completed in another, such offense shall be deemed, to have been committed in either county or state, and may be dealt with in a court of competent jurisdiction in either in the same manner as if actually and wholly committed therein. Thus, if a person wrongfully intending to kill another stand in one county or state, and with a gun shoot and wound or kill his victim while the latter is in an adjoining county or state, the wrongdoer can be tried and punished for the crime in either jurisdiction. Ky. St. Sec. 1147; Crim. Code Prac. Sec. 24; Commonwealth, etc. v Jones, Judge, 118 Ky. 889, 82 S. W. 643, 26 Ky. Law Rep. 867, Commonwealth v. Ball, etc., 126 Ky. 542, 104 S. W. 325, 31 Ky. Law Rep: 325. The rule stated has, as we shall presently see, been applied to injuries to real estate sustained in one jurisdiction from an act committed in another jurisdiction. While at the common law and by section 62, subsec. 4, Ky. Civ. Code Prac., an action for injury to real property is made local, and must, therefore, as a general rule be brought in the county in which the land is situated, this rule is not to be arbitrarily enforced where the injury to the real estate results from a cause or act arising or occurring in a county or state other than the one in which it is situated,
This right of election seems to have first been recognized in England, in Bulwer’s Case, mentioned in 7 Coke, 1, wherein it was said in applying it to a state of case in which the injury was sustained in. one county from a cause arising in another: “He (the plaintiff) may unquestionably maintain his action in either county, in Bristol, where the obstruction was raised, as well as in Plymouth, where the injury was. sustained. * * * Where one matter in one county is depending upon the matter in another county, the plaintiff may choose in which county it will bring the action.” In Barden v. Crocker, 10 Pick. (Mass.) 383, Ruckman v. Green, 9 Hun. (N. Y.) 225, Supreme Court, and Pilgrim v. Mellor, 1 Ill. App. 448, the doctrine announced in Bulwer’s Case was elaborately discussed and fully approved. The question was again before the Illinois Court of Appeals for consideration in the case of Ohio, etc., R. R. Company v. Combs, 43 Ill. App. 119, in the opinion of which it is said: “The objection that the suit can not be maintained in St.' Clair county, the land alleged to be injured lying in Madison county, is not sustained, as, when an injury has been caused by an act in one county to land situated in another, the venue may be laid in either. * * * And the obsl ruction complained of in this case is in St. Clair county.'’ ’
The conclusion thus expressed in the opinion, supra, is supported by the following citation of.authorities: Gould on .Pleading (5th Ed.) c. 3, Sec.
In Thayer v. Brooks, 17 Ohio, 489, 49 Am. Dec. 474, the plaintiff sued in Ohio to recover damages for a nuisance resulting in the diversion of the water from his mill. The mill was situated in Ohio, but was operated by a stream having its source in part on the land of the defendant situated in Pennsylvania. By ditching his land, the latter so diminished the supply of water at the plaintiff’s mill as to materially interfere with its operation and injure the property. In passing upon the question whether the action could be maintained in Ohio, the court said: “The error first assigned presents for our consideration the question whether case for nuisance can be maintained in this state, the property injured lying wholly within the jurisdiction of this state, but where the acts causing the injury complained of were done wholly without the jurisdiction and in another state. The actions of trespass and trespass on the case for. injuries to land are local, and in all cases where the act done and the injury sustained are wholly in a
“This rule is universally recognized as a rule of the common law. Watts v. Kinney, 23 Wend. (N. Y.) 484; Doulson v. Mathews, 4 T. R. 503. It was sustained by Chief Justice Marshall, after a full examination, in Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8,411. The action in that case was for trespass upon lands in New Orleans, and was brought in Virginia. It was dismissed for want of jurisdiction. Judge Story affirms the doctrine in his Conflict of Laws, sec. 554: ‘Real actions must be brought in the forum rei sitae.’ * * * The position has been presented by plaintiff’s counsel as conclusive of the case upon the first assignment of error. We have not so considered the law. The act was done in Pennsylvania. The injury which was occasioned by that act was sustained in Ohio. In such a case it is believed the suit would well lie in either state. ‘When an injury has been caused by an act done in the county to land, etc., situated in another, the venue may be laid in either.’ Chit. Pl., 299, and cases referred to.” In Rundle v. Delaware and Raratan Canal, 1 Wall. Jr. 275, Fed. Cas. No. 12,139, the other side of the rule declared to be the law in Thayer v. Brooks, supra, and by Chitty, viz.: That the action may also be brought where the wrongful act is done was approved in an able opinion by Justice Grier of the Supreme Court, presiding at the time in the Circuit Court of the United States for the state of New- Jersey. It was here held that a person residing in Pennsylvania and owning mill property in that state might maintain an action in the Circuit Court of the United States in New Jersey for injuries to his mill property caused by the wrongful
“It has been objected to the application of the doctrine to the present case that it refers to counties which adjoin, and not to sovereign states. This is a distinction, it is true, between the cases cited and the present case, but we have heard no reason given why it should make a difference. An action may be maintained in a court of New Jersey by a Pennsylvanian to recover a debt or damage for a personal injury; and why not for the injury to real property? The question must be because the action is local, and not transitory.. The difficulty is caused, not by any principle of international law, but of common law which is the same in both states. By the common law, then, it must be solved. The objection is founded not on the plaintiff’s right to the remedy, but on the mode of the trial; and it is, after all, but an objection to the venire. But I have shown the venire as well laid in New Jersey (which as regards the court forms one county) because the nuisance complained of was created in that state. If, then, the action be local, and this is the proper venue, what is the value of the distinction? The plea to the jurisdiction must be overruled.” It may be remarked that this case went to the Supreme Court, and the judgment as to the question of jurisdiction was affirmed. 14 How. 80, 14 L. Ed. 335.
The Supreme Courts of Tennessee and Texas have passed upon the question under consideration with a
Therefore, it occurred in both at the same time, and for that reason should be regarded as having occurred wholly in either. This being true, it can well be said that the action was properly brought by appellant in Whitley county, Ky., the’ place where the injury complained of was in contemplation of law received. The petition is silent as to the place of appellant’s residence, but does allege that appellees’ railroads, respectively run through Whitley county, and these averments, together with our finding from -the
For the reasons indicated, the judgment is reversed and cause remanded that the demurrer to jurisdiction may be overruled, and such further proceedings had as may be consistent with the opinion.