NONCE' tl.· RICHMOND & D. R. CO.
429
and if suit is brought on such causes of action in a 'foreign jurisdiction the limitation act of the state which created the cause of action may, of course, be pleaded. Boyd'8 Adm'r v. Clark. 8 Fed.Rep. 849. ' The rule is different, however, with respect to actions given by the common law. As suits may be brought upon causes Of action arising under the common law wherever service can be obtained, it difficult how a statute of limitation of one state, even though it exto tinguishes a cause of action after the lapse of a certain period, can have any extraterritorial effect unless both parties to be Il-fI'ec,ted by the reside within the state where the law prevails for the full statutory ,period. In that event, if they remove to a jurisdiction and suit is brought upcm the cause of action, it is reasonable to hold them bound by w1).ich they both lived and which the laws of the state the cause of action before they removed therefrom. As soon as the tiff in the suit at bar sustained the injury of which he turned to .the s.tate of Missouri, of which state he was lj.resident... He had a cause of action for the wrong done. him under the laws of this state, and. under the laws of every other state where the common law moment theinjurywa88u.stained, although was sustained in the statute of Kansas did not, in my opin,ion, extinguish, of action in Missouri because he did not remain for ;the period of two, years . , ., . subject to the operation of that statute. The result is that the objecti9n to the admission of the will be sustained.
NONCE ". RICHMOND
& D.
R.
Co.
(Oirouit Oowrt, 1.
w: D. North
Oarolina. October Term, 1887.)
LIMITATION OF ACTIONS-LEX FORI-ACTION FOR PERElONAL INJURIES.'
In an action against a railway company to recover damages for personal injuries sustained. the right to relief is governed by the laws of the, state in which action is brought, although it may be barred under a statute of limitation of the state in which the cause of action accrued. 1
2.
NEW TRIAL-OBJECTIONS TO VERDICT-WEIGHT OR. EVIDENCE.
. When evidence is conflicting. and the witnesses are of good character, the verdict of the jury, if not or improperly obtained, onght not to be set aSIde by grantmg a new trIal. .
At Law. Action for personal injuries. This was an action brought by W. H. Nonce against the Richmond & Danville Railroad Company to recover compensation for persolllil Injuries sustained while performing his duties as an eD;1ploye of the defendant. Judgment for plaintiff. 'Defendant moved for a new trial. 1 A statute of one state, by which 8 right of action for persolial injuries n.ot be eIlforced by the courts of another state, where the common law, by·whicb 8lIch cruse of action dies with the person, is unchanged. Railw&y.Co. v. ,(Tex.) 40 S. W. Rep. 627. . ·.
'i,
,c.,:
,"J
Before d ;" "
.aQd Oharlea for defendant. and DlCK, JJ; ',' , ';": ;: ,ON ,,'fE;F.l TRIA:J:,..
S; Balkfo,r,pl,aiJiltifl'. '
:BoND, J., (charging jury.): Ifthejur)T find from that the plain:tiff/1>eing iiIl employe of 'defendant company, was injured in the mannel'alleged in: hiscomplaiht:while he was in the performance of his duty as such employe, by means of the fault or negligence of another employe of oompany (whose orders he was bound to obey) engaged making then he is entitled to a verdict the jurymay:f!rid will compensate him for his juries. 'But iif','the juryfiild froin: the evidence that the injury to the CiooasioI}ed by his own cil.relessness and disregard of the ulations of Ithe'oompany prescribing and regulating his duties, or that this disregard Ofirules .contributed to the injury, then he is not entitled,:though the j urr may find his co-employes were equaIly careless'.' ' ! oj Action; If thejnry findfrofu the evidence that the plaintiff w9.s 1 ,required to ,remove a filultycimpling pin, (by the yardniastet;} he 'is not entitled to recover, unless the jury find further that the faulty condition of the pin caused the injury to him, arid that the plaint1fl':tfid ilotLkoow of its faultiness, and 'had llot used it before. The jury in their verdict found the issues in favor of the plaintiff, and assessed damages at $1,5'00;-' The defendant's counsel then entered a motion for a new trial and assigned as grounds for the motion: (1) The cause of action thert;}, ia a statute of limitation in that statel:iiurihg any'such action,un!Elss brought in one year ;l:>ro?ght two aftflr after the the cause of actIOn arose. (2) The verdIct IS contrary to the weIght of the (3,) The damagesareexcessive(being more than'a,rea.'ooll:!petlIJtt;1ionfor tire, injur)l'sustained'::,Th,is motion !aB. conhea#1;.9nargumeI;lt. at Charlotte, at ,the term .of the court. ' , ON MOTION' Ji'ORNEW ,'1 ' 'i.
injtll'ycomplained :ofoccurredin state of Virginia, more than two years before the'commencement of thiS action. There is in that state a statute of limitstiOlls.thst w()ul.? ?ot surv:ive u,p,onJhedeatn (jUlle varty lDJured "shall one This ac#on i,n' sllid ,proyision, alld[ under a plea 01 the statute of limitations, insisted' 'on' tHe trial that 'the said t4iijcau,se,ofactjo:t;l,andrntrs remmore than t'r0' yearS had 'elapsed frorii'thetitne df'th"tdrljuryalleged to tne comrHel1ctimerlt ofthjssuit. .At Lf'DilJIt,
NONCE.V. RICHMOND cit D. R. CO.
431
the request of the counsel this question of law was reserved for further argument and consideration on a motion for a new trial, if such motion should become necessary. The jury found the issues of fact favor of the plaintiff, and assessed damages for the injury sustained at 811;500. This reserved question of law was argued at this term befurethejudges who presided at the trial at Greensboro, and they concurred .in: opinion that the statute oflimibitions of Virginia did not apply to this action. As this question was discussed with ability and learning by the counsel (If the parties, I deem it proper ,to file an opinion setting forth)somerea·sons and principles of law upon which the decision of the' court was · founded. This action was brought within three years, the period oflimitati()D prescribed by the statute· of this state; llndsuch statute is a rule of dedsiori:in this court in trials at commonla.w iw caseBwMr:eit appfMs. tAng. Lim. § 24; Amy v. Dttln.tque, S.470. Every sUitl'lthathasi a well regulated and enlightened- systelll; of jUl'ispt'IUderice'hasi enacted wise and :salutary-statutes of limitation,Qlnd has providedconvenientformsa:nd modes of procedure and remedy in Hs .courts; andwiJl not in a mere spirit of comity adopt and-enforce the laws of otherS1:areS,uponthis sub, ject, which la:ws the courts Cluinot judicially know exclllpt of fact - proved by ev:idence. Hcaperv; MoOre, 5 i J'one8, (N. C.) l30 f Haws'vl- Or., 4 J onesj(N. C.) 394. All statuteS oflimitations areubitmty intheiir char· aeter; and represent the legislative opinion of a state as ito the beat policy of promoting and securing thewelfareofits own citizetls!by giving. repoSe to society'in matters oflong4:le1ayed litigation. They ,statutes of the fOruID, and operate alike on persollsand' things witbin the lo01il Jurisdiction they arQlaw$.' When pleaded by waydf-defense they:ap,ply Qrilyto the remedy:, Q.nd.do,I1otcohtrovert the merits of the-cause of · action.. They do notextiriguish rightssarid in the case, of contraatsla 8ubsequentpromise, ifsufficiently definite; will remedy I':It was'a 'rlileof: the common law that a right neverdies'land there no . -:limitationto actions on :contracts,'and -Only one as to-torts. in; the maxim actio per80nalis 'l'lWt"itur: perstma.· Human -experience "and the wisdtim of the advanced civilizati(jn of modern! -gave' rise to the beneficial policy of statutes of limitation. intended to operate as statutes of rep08e, :not by extinguishing rights; but by restricting the remedies ofthe courts to persohs;i..:diligent in business-who in the reasonable· per-iods Prescribed would seekthe'enforcement ()f>their rights,and thus settle-mati terstlf vexatious controversy'and litigation. The: several states of' the union have enacted statutes-limiting remedies in their courts,"anl:bwhen they operate prospectively; and al1owi-emedies that are' reasonab1e and convenient, they not impairing the validityand'obligations of contracts or unjustly disturbing vested right!!. . A state may in suchatatutes discriminate against. _proviged some convenient and reasonable time is allowed: them forbril1gingtheiti actions 'in such'state. Bacon v · .Hoioarf), 20 How. 22. ' J:t is the d'\1tiy ohvery state toprotect,sEJcilre, and enforce'the;natural-inherent,rightS'of'personal soourity; personal liberty; and .privaterproperty:ofeveryperson·!re-
in
are
cum
432
FEDERAL REPORTER.
ai.ding permanently or temporarily present within its territorial limits; but it oan do so in accordance with its own views of expediency, propriety, and justice in legislating for its own citizens. Statutes of limitations .are universally regarded as peculiar and local laws, operating exclusively within the. bounds·of the state that enacts them. Haws v. Cragie, 4 Jones,eN. C.) 394. There .are some rights and some injuries strictly loOll.l, and can be enforced and remedied only in thestateip which they subsist or occur. This class of cases includes rights and injuries relating to real property, to penalties and forfeitures, to prosecutions for crime, to proceedings in rem, to claims against executors and administrators, and other local public officers; and to rights that do not exist at the commOn .law,.but are created, by statute and expressly limited in their enforcem:ent to the courts ,of the sovereignty conferring sucbnew: rights. In these cases, if an action is,liot instituted within the period prescribed by the local statutes ;ofliniitation, lapse of,time asa barto the remedy, but As'an ,extinguishment of the right 'of the negligent clahnant, as he can seek no either forum for redress. In most, if not in all, of the states there are statutes operating in the nature of prescriptions, which provide that when property is openly.and adversely held for a specified period of time, holder shall acquire llititle by such adverse possessionjand such title will be: regarded valid everywhere against theorigirmLowner, where he has bad reasonable opportunity of his rights ,and has failed so , to do. There is a. clear distinction bEJtween statutes .givinp; title by prescription arising frum adverse possession, and such as only limit the iena:edyaato the time of bringing suit. This distinction has. been clearly ,defined and established by,many adjudged cases. TQU}nsend'v. Jemison, 9 How. ,407; Campbell v. Holt,H5 U. S. 620,6 Sup. Ct. Rep. 209. Parties to contraots may, within the Tules'of law, make almost any terms they please: about performance df the obligation. They may expressly stipulate that an action on such contract shall be brought within a certain pelJiod:Of time,-less than is prov.ided in the localstatutes of Ihnita,thedelinquentparly shall be extinguished; and iffree from fraud, will bind the parties, and be rt'garded as valid in courts of law. The essential elements in every contract are the intention and .agreement of the .parties, and, when: clearly ascertained by, tne teasont\ble rules ofconstruction, will beCl!-rried out in legal proceedhlgs.Riddlesbarger V. 00., 7 Wall. 386. tWehavethus briefly referred to these causes afaction that are ora speoiaLorlooalnature, in order to mote clearly observe the distinction :between local and transitory actions. In the early ages ,of the common ·law a.ll;aetiotls were Idcal,and all issues of fact were required to be tried 'and uetermined by a jury of the vicinage; but, in the CQurse of time, the eourtS, and'influenced by the dictates of:reason, the principles ,,.of justice! ithe cirCulllstances!of the nation, anddtber oonsiderations, motives"ang. ,purposes so well expressed by Chief JustiaeMARsHALL in the {'Slfeof Livingston 11 Myenl, Fed. Dec·. § 1695, established a ard transitory actions·.. "The distinction taken .distincti9n between
NONCE V. RICHMOXD & D. R. CO,
433
is that actions are deemed transitory when the transactions on which they are founded might have taken place anywhere, but are local where their cause is in its nature necessarily local." This distinction has been recognized in the courts of England and this country in many decisions. I think the rule is universal in its application that, if there is no statutory prohibition, a plaintiff in a transitory action may seek his remedy in any state where its courts, by due service of process, properly acquire jurisdiction of the parties defendant; and the laws of the place of the venue regulate all matters pertaining to the remedy. In matters relating to contracts, to torts to the person or to personal property, or I when a statutory personal right is not expressly confined to the territorial limits of the sovereignty that created it,-the right of redress and enforcement accompany the person and may be made available in any country where the wrong-doer may be found. Dennick v. Railroad Co., 103 U. S. II. , In such tramlitory actions defendants are not deprived of any means or opportunities of defense that go to the merits of the action, unless such merits have been determined bya previous judgment; but they can only avail themselves of the statutes of limitation that are in force in the forum w!lere .the suit pending. They may have contracts construed, and their validity determined, by the laws of the place where such contracts were made. In matters relating to the performance of contracts, the laws .of the,place of performance will prevail. Mattet's the remedy.depend upon the laws of the place where the suit is brought. Scudder v. Bank, 91 U. S. 406. For the purpose of showing how strictly the supreme court of the United States has adhered to these principles of law in regard to the application of the limitation laws of the forum as a matter of remedy in actions there pending, I will refer to two cases that may be regarded as extreme and "hard cases." In Bank v. Dalton, 9 How. 522 i the plaintiff sued upon a judgment which had been obtained in Alabama, and was in full force in that state, where both parties had been residents until the day before the bringing of the action in the United States circuit court for the district of Mississippi. The laws of Mississippi did 110t operate on either party, nor on the judgment, until .the day on which the suit was commenced, and yet the court was constrained to decide that this statute of limitations. when pleaded by this new citizen of the state, was a rule of decision that could not be disregarded. The case of Ohristrnaa v. RU88eU, 5 Wall. 290, presents a ditferent phase of the question, and one seemingly at variance with the general policy of statutes of limitation as statutes of repose in matters of long delayed litigation. The action was brought in the United States circuit court for the district of Mississippi,.upon a judgment obtained in the state of Kentucky. The note upon which the judgment was obtained was executed in the state of Mississippi, the residence of the original parties more than ten years before the commencement of the action in Kentucky I and five years lifter the local statute of limitations had barred a temedy. The note was assigned to a citizen of the state of Kentucky I who instituted an action,and was served on the defendant while on a visit to v.33F.no.7-28
'434
FEDERAl. REPORTER.
that state. The local sta,tute did not bar this action, and the defendant, without ,succe88,'pleaded the statute 0] Mississippi, theplMeoJtM contract. The judgment in this action concluded the subject-matter between the parties. The original note was merged in this second debt of a higher nature, but it could be enforced in another state only by a new In a short time afterwards an action was brought on this judgment in the United States ,circuit court for the district of Mississippi, and the defendant pleaded a statute of that state, barring actions on all judgments ob, tained under such circumstances as' attended this judgment. This statute was held ,to be unconstitutionalj as it was not in the nature of statutes of limitation, as it attempted to destroy the fight withoutllft"ording any remedy to such judgment creditor. I deem it unnecessary to cite other cases to show how well settled is the principle, as to actions on contract, that the constitutional Iawsoh state wheJ;'esuit is brought regulate all matters IielatiJ;lg toprooess, pro.' cedure,and remedy. The counse1ofthe defendant on the argument conceded that this doctrine was established as to actions on, contract, but insisted that it had not been applied to actions ex delicto by anye:ipress decision of the courts. In my ,limited investigatiolil 1" was sutiprised at not finding Borne direct adjudication upon:the question involved in this . matter; 'but r: know of noreasoo, why the principles that'regnlate Mtions on contracts should not be applidabie to ,the remedy my mind, the' fact that no adjudicatiorls aan be fuuhdfu:tnishesstrQngevi,deuce that; t.hereis no distinction: bnthis ,subjectbetweena<ltidriS ex con:tvractUiand;ex:delicW. 1£ such distinctionexists,it certainly'would have 'been observed by able and acute lawyers, and would have been settled by the courts.:I:fee1sure that many learned 'and able 'judj!;es and accurate text writers would not,have'so often stated asaigeneral principle of.law; well established .inEngland andtbiseountrYlthat the defens,eofcthestatuteoflihlitationsis: governed by thekx Jon, ihc, tions' of tort,. which have been:oI such ftequent ocourrence, were exceptionsto the general rule, ,There are brore, plausible reasons why this doctrine oithe 1ezJori governing the remedy should not· apply to con, tracts than there are as to torts to the person. Contracts are' nuide by the parties with care and deliberation, and with a :clear understanding 'as to their: rights and obligations; and .they generally have reference to the law of the place where the, contracts are made.. Such laws enter into and form a part of cdntracts, ,subject to the power :of'the legislatureof such state to change ,the remedy,provided no S1:lbstalltial right secured bytbe contract is impaired. Walker v. Whitehead; ,16 !Wall. 314. The lex Jori is by tIle parties unless they make a particular state the place of perfofmance;and it may well be ,insisted that contracts should always be enforced in accordanoe with ;the original ,understanding and situation 'of the parties: ,Such a: doctrine seems to hil.vethespirit of natural equity and justice. Delay'in the enforcement 'of. cont,ractsi'nore frequently oecms frdril'akindlyspirit ofiridulgence than: from carelessness and negligence, and'itseems to be only Mmmon , justioe 'that the indulgent creditor: should ha.ve the benefits ,ofsu(jh rem· .'
v
NONCE. V.RICHMOND & D.R. CO.
435
edy as was provided by the lex loci contractus, weH known to tbe debtor whe.n he assumed the obligation. Different considerations and elements are involved in remedies for civil torts. They are wrongs independent of contract, and are generally caused by acts of misfeasance or malfeasance that result in injury to the person or property of another. Where they affect the person, the party injured has a natural inherent right of redress that should be recognized and enforced in any court that can acquire jurisdiction, and administer justice in accordance with the principles of the common law. Where a wrongful act to the person amounts to a crime there are good reasons why the prosecution should be local. It is an act done in disregard of social duty,-is an offense "against the peace and dignity of the state,"-and causes public and alarm. One of the principal objects of punishment is to deter others from committing offenses of the same kind, and the exaJDpIe will be far more effectual if made in the community where the wrongful act was committed. But a tort to the person, although alleged in thl;' formal and technical language of pleading as conbl"a:pacem, is only a civil injury in contemplation of law; and the right of redress, .like any other personal right, accompanies the party. injured wherever he may go and have opportunity to.enforce his remedy. Torts to the person often unexpectedly occur when the injured party is absent from home in the midst of strangers, and cannot conveniently, promptly, and effeptually seek redress for his injury in the local court. It certainly would be a fjtrangeInconsistency in the law to allow a person to bring a transitory action for the breach of a contract in the forum. of his choice and have the facilities and benefits of its remedies, and then deny to him such advantages in an action for an injury to his absolute; right.of personal security against wrong. The law is well settled by numerous decisions in England and America that an action for a tort to the person, to personal property, or to reputatioll,recognizedas. injuries at the common law, can be maintained whereverth.e wrong-doer is found, without regard to tlW place the cause of action originated. Moatyn v. Fabrigas, 1 Smith, Lead. Cas.. 1027; Bernhard v. (}reene, 3Sawy. 233; Dennick v. Railroad Co., 103 U. S.ll; Cooley, 'l'orts,470. This:doctrine also applies to causes of action arising out of contracts and torts on navigable inland waters and on the high seas in any part of the globe, and courts of common law have concurrent jurisdictiopwith courts of admiralty, and may proceed in to furnish adequate redress. Schoonmaker v. Gilmore, 102 U. S. 118; Wil-. Bon v. Mo!{amee, Id.. 572. The.act complained of mnst,however, be a tort at common law or by statute place where committed, for the merits of the cause qf actionl\re determined by the laws of the place wbere it arose; but the mode of procedure and remedy, including utes of liInitation, are solely regulated by the laws of the place where the brought. A caUlle of action ariE!ing .under a statute may be made localbytJ1e express· terms of the statute; and, if the provisions o( sp.ch law are not c()mplied \Vi th, the rightEl thus conferred may be 'extiD,,,: 3J;1d cannotbeenfQrced: in·the c()urts state..
436
of the states,.if not all, have enacted' statutes taking certain torts resulting in death out of the common-law maxim, actio personali8 moritur (MTn per8rnia; aild . allow actions to be brought by personal representatives for the oenefitofthe wife and children of the deceased. Some of these statutesthake this new right and remedy local, while others crel}te the right withol1t'any local limitation, and suit may be brought like the ordinary transitory: actions at common law. Dennick v. Railroad, supra. Every state' 'has: enacted limitation laws applicable to torts committed within its own limits. and provided its own forms of action and modes of procedure for the redress of injuries in its own courts. As a state court can, by due service of process, acquire jurisdiction to try actions for' torts in other countries, and even upon the high seas, where all nations have a common jurisdiction, and are interested in the prevention and redress of wrongs, I can conceive of no good reason why it should not exercise complete, independent, and uniform jurisdiction, in accordance with its own forms and mode of procedure and remedy amply sufficient for the administration of justice between the parties to an action. It could not conVllniently 'and uniformly apply any other limitation laws to actions for torts committed out of the state than those provided for the same kinds of local torts. A court cannot know the limitation laws of other states, and the construction placed upon them by the local tribunals, and must depend upon evidence for such knowledge, and not upon judicial learning. If, in trying cases, it is bound to recognize and ,enforce the limitation laws of other states and nations iIi which torts have occurred. then its administration of justice would be greatly wanting in regularity, uniformity, and consistency,-matters deemed so essential in judicial proceedings. Many onhe states, influenCed by the suggestions of eminent text writers and judges, have made provisions in their statutes of limitation that, where an action is barred by the laws of another state in which a defendant had resided during the entire period of limitation in such state, then it shall also be barred in those states. As far as I have been able to examine such statute provisions, they apply only to actions on contract, and are regarded as departures from the general policy of statutes of limitation, and are strictly construed; and defendants must show that, in all respects, they come within' such provisions. The enactment of such statutes is an expression of legislative opinion that foreign limitation laws cannot be made available in a state court without special statutory ., provision to that effect. The plai.ntiff in the case before us brought his action in a court of this state for a fort at common law, which occurred in the state of Virginia, while he was in the employment of the defendant. He is a citizen of this state; and in a few months after the injury he returned to his home, where he remained in the service of the defendant fOr more than a year, when he was discharged. This action was commenced within the period prescribed by the statute of limitations of this state, and it was removed on the petition of the defendant to this court, and in our decision upon this reserved question of law we felt it to be our legal duty to rec-
LACROIX V. LYONS.
487
ognize and enfo;ce his rights in accordance with the remedy afforded by the laws of this state. On the second ground set forth in the motion for a new trial the court was of opinion that the facts found by the jury could not be re-examined otherwise than according to the rules of the common law as they prevail in this state. A court can properly decide questions as to what evidence is admissible, and whether any evidence has been offered tending to prove particular facts in issue; but it is the peculiar province of a jury to determine the weight and sufficiency of evidence; and in civil cases, where the testimony is conflioting, find their verdict in accordance with the preponderance. Unless a verdict was influenced by partiality, prejudice1 or some other improper cause, or is manifestly wrong, a court ought not to set aside the deliberate finding of a jury on matters of fact, by granting a new trial. In this case the testimony was conflicting, aU the witnesses were proved to be men of good characters, and the intelligent jury, after hearing the able argument of counsel, found the preponderance of testimony in .favor of the plaintiff; and the court could see no good reason why their verdict should not be conclusive as to thefacts inVOlved. Upon the question as to the amount of damages assessed by a jury a court has a more enlarged discretion, and a sense of duty often influences a court to set aside a verdict for damages clearly excessive. In this case there was no conflicting testimony as to the extent of the injury, and the court was of opinion that the amount assessed by the jury was more than a reasonable compensation for the injury sustained, and there were no grounds for exemplary damages. The court informed the counsel of the plaintiff that unless they would consent that the amount of damages assessed by the jury be reduced to the sum of $750, the verdict would be set aside, and a new trial granted. The terms were accepted by counsel, and judgment was signed for the indicated by the .court.
I I
·1
LACROIX
v.
LYONS}
(Oi'l'c'Uit OOU'l't, E. D. Louiliana.
January 11, 1888.)
.JUDGMENT-RES ADJUDICATA-INFRINGEMENT SUIT-ACTION AGAINST DEFENDANT'S VENDEE.
Plaintiff sued to enjoin defendant from using the former's trade-mark. Defendant pleaded that in a previous suit upon the same grounds, to enjoin defendant's vendee from selling the article complained of, judgment had been rendered against plaintiff. Held that, for the judgment to be a bar to the maintenance of the present suit against defendant herein, it should also appear that he openly defended in his own interest the suit in which the judg. ment was rendered.
In Equity. .1
Bill for injunction·
k p Jrted by Charles B. Stafford, Esq., of the New Orleans bar.