71 P. 593 | Utah | 1903
Lead Opinion
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
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
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
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-
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
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.
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.
Concurrence Opinion
(concurring in judgment). — I agree fully with the view that the word “business” in the clause of our Constitution in question should be construed as though the words “causes of action” were substituted therefor. In support of the rule that the constituent elements of a cause of action consist of a wrongful act of omission or commission resulting in implied or actual damages, it may not be out of place to suggest that the same is in harmony with the rule stated by Bliss in his Code Pleading at section 113, that “the cause of action is the wrong;” and is likewise in accordance with the doctrine supported by the recent book of Judge Sibley on “The Right to and Cause for Action.” In brief, the doctrine of the latter work is that there is a difference between primary or substantive law defining rights which it will establish and secondary or adjective law, which provides a remedy in aid or protection of the antecedent right; that primary and remedial rights correspond with these two great
In considering the question whether this action should have been brought in the county where the injuries are alleged to have been sustained or in the county in which deceased came to his death, the rule in murder cases may be considered as closely analogous. At the very early common law the more common holding was that, where the mortal blow was given in one county, and death ensued in another county, the offense should be prosecuted in the county where the blow was given. U. S. v. Guiteau, 47 Am. Rep. 247, and cases there reviewed. In 1548 the statute of 2 and 3 Edw. VI, c. 24, which is common law in our country, enacted that in such a case the trial might be in the county of the death. Our statute (section 4585, Rev. Stat. 1898) provides that the action shall be brought in the county where the blow is struck. Mr. Bishop, in 1 Crim. Law, sec. 115, note 2 (5 Ed.), says: “The true view, therefore, is that the infliction of the mortal blow, constitutes the crime in felonious homicides, yet until death the mortality of the wound can not be established in evidence.” In the same elaborate note he argues in favor of his view as follows: “And it- is not generally among men recognized as sound to hold that a wound not even described
Tb refer the cause of action to the wrongful act has an important bearing upon the law of pleading as to joinder of actions. To illustrate: The case of King v. Chicago, M. & St. P. Ry. Co. (Minn.), 82 N. W. 1113, 50 L. R. A. 161, 81 Am. St. Rep. 238, holds that “injuries to the person, and injuries to the property of the person injured, both resulting from the same tortious act, are separate items of damages, constituting but one cause of action.” A note to this case says: “The rule supported by the greater weight of the American authorities treats a single act causing injury as giving rise to but a single cause of action, whether or not the act infringes upon different rights, or causes different injuries.” To reach this view it would seem to be necessary to regard the wrongful act as the principal ingredient in the cause of action, and the resulting injury as subsidiary or incidental. While the question' is a very close one, and men 'may reasonably differ in judgment thereon, I am inclined to give preference to the rule requiring the action in such a case as the one at bar to be brought in the county of the alleged wrongful acts of defendant, for the reasons that the same is in analogy to our statute governing the trial of murder cases under like conditions; that the same is in accordance with the more general rule of the early common law; that the same is conducive to certainty in determining where a cause of action arises and what actions may be joined (Bliss, Code Pl., sec. 113); and that the same seems to be supported by the weight of reason, and the decisions in civil and criminal cases, so far as they bear upon the rule.
On the question as to whether the clause of the Constitution in question is so far jurisdictional that the same can not be waived in any case, I see no reason for holding that the
Being of the opinion that defendant has waived the question of venue, and that in such a case as this the same can be waived under our Constitution, I concur in the judgment of reversal.