Eingartner v. Illinois Steel Co.

Winslow, J.

Two important-questions arise in this case, viz.: (1) Whether the court could, in its discretion, dismiss the case because the parties were both residents of the state of Illinois and because the cause of action arose in the state of Illinois, jurisdiction of the person of the defendant having been obtained within this state; (2) if the court could not dismiss the case for this reason, then whether the evidence of the plaintiff was sufficient to entitle him to have the case submitted to the jury upon the merits. These questions will be considered in the order indicated.

This is an action to recover damages for injuries to the person. It is therefore purely a transitory action, and the principle that the courts of this state have jurisdiction to entertain such an action, although the cause arose in Illinois and the parties are residents of Illinois, is unquestioned. Curtis v. Bradford, 33 Wis. 190. A court of this state would even have jurisdiction of a transitory action of this nature where it arose in a foreign country, or on the high seas, and both parties to the action were aliens, provided jurisdiction of the person could be obtained. Gardner v. Thomas, 14 Johns. 134; Johnson v. Dalton, 1 Cow. 543; Great W. R. Co. v. Miller, 19 Mich. 312. But, while it is held that a court has jurisdiction and may administer relief in an action between aliens brought upon a cause of action arising in foreign lands, it is also held that there is a certain discretion which may be used by the court in entertaining such actions, and that the court may dismiss such an action if, for any reason, it seems improper to take jurisdiction. In the present case it is practically claimed by defendant that this rule applies to such an action as the present; in other words, that citizens of another state of this Union are to be treated in the courts of this state precisely as if they were aliens, and that a cause of action arising in another state is to be treated as though it arose in a foreign country; and this really is the first question to be settled.

It is provided by the constitution of the United States (sec. 2, art. IY) that “ the citizens of each state shall be entitled to all'the privileges and immunities of citizens in the several states.” The first attempt at a comprehensive definition of this clause of the federal constitution seems to be made in the case of Corfield v. Coryell, 4 Wash. C. C. 371, where Mr. Justice Washington, referring to this section of the constitution, says: “ The inquiry is, What are the privileges and immunities of citizens of the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which, belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. . . . They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through or reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise ; to claim the benefit of the writ of habeas corpus; to instit/ute and maintain actions of every hind in the courts of the state; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxation and impositions than are paid by the citizens of the other state,— may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental.”

The subject was again considered in Ward v. Maryland, 12 Wall. 418, where it is said by Mr. Justice Oliffobd, who wrote the opinion in that case, referring to the words “ privileges and immunities ” in this section: “ Beyond doubt, these words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business, without molestation; to acquire personal property; to take and hold real estate; to maintain actions in the courts of the state; and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens.” In referring to the same subject in Paul v. Virginia, 8 Wall. 168, Mr. Justice Field, in the opinion of the court, after defining the object of the constitutional provision in question in quite similar terms, very aptly says: “It has been justly said that no provision in the constitution has tended so much to constitute the citizens of the United States one people as this.”

These decisions are all referred to with approval in the opinion of the supreme court of the United States in the Slaughter-House Cases, 16 Wall. 36. See, on this same subject, the following cases, which are in harmony with the cases just quoted: Lemmon v. People, 20 N. Y. 608; Campbell v. Morris, 3 Har. & McH. 535. A case almost identical in its facts with the case before us is the case of Cofrode v. Circuit Judge, 79 Mich. 332, where this provision of the constitution of the United States is directly construed as guaranteeing the right to a citizen of another state to bring suits in the state of Michigan in any case where a citizen of Michigan was entitled to bring such suit. Indeed, we have been referred to no cases holding the contrary of this proposition, except, possibly, the case of Morris v. M. P. R. Co. 78 Tex. 17, where it was held that a Texas court might refuse to take jurisdiction of an action between'a Choctaw Indian and a resident of another state, founded upon a cause of action accruing in another state. We do not, however, regard this case as of value as authority on this question, because it was held to be a local action, and not transitory. If this was the case, of course the courts of Texas could not entertain it, whatever the citizenship of the parties. Therefore, what is said at the close of the opinion with regard to the power of dismissing the case on account of the residence of the parties is obiter. Moreover, the question of the rights of a citizen of another state under the constitution could hardly arise in a case where the plaintiff was a member of an Indian tribe, and consequently not a citizen of any state.

We are entirely satisfied that one of the “privileges and immunities” referred to in the constitutional provision is the right to bring and maintain an action in the courts of the state. Any citizen of this state may bring an action in the circuit court of this state upon a transitory cause of action arising in another state', and against a citizen of another state, provided he can obtain jurisdiction of the person of the defendant in this state. This is one of the rights guaranteed him under our constitution and laws. If the words “ privileges and immunities ” in the constitutional clause in question refer to the right to maintain actions, then a resident of another state has the same right to bring an action in the courts of this state upon a cause of action arising in another state, and against a citizen of another state, that a citizen of this state has, because the constitution guarantees him the same right as a citizen of this state. We entirely approve the doctrine held by the supreme court of Michigan in Cofrode v. Circuit Judge, 79 Mich. 332, and therefore hold that the trial court could not dismiss this action merely because the parties were both citizens of Illinois, and the cause of action arose in Illinois.

The question then arises whether the court was right in dismissing the case on the merits, either because no cause of action was proven, or on account of the supposed conflict of the laws of Illinois and Wisconsin.

This court has held, as we have seen, that an action to recover for personal injuries negligently inflicted in another state is a transitory action, and is triable in the courts of this state, provided jurisdiction of the person is obtained. Curtis v. Bradford, 33 Wis. 190. This doctrine is in accord with the decisions everywhere, and it is unnecessary to cite authorities. Another rule has been applied, however, by some of the decisions, with regard to actions founded on a statute of another state where such statute is inconsistent with the law of the forum. Thus, it has been held by this court in Anderson v. M. & St. P. R. Co. 37 Wis. 321, that the courts of this state will not enforce a cause of action arising in Iowa under a statute of that state making an employer liable to his employee for injuries suffered by reason of the negligence of his fellow-servant, because it was the settled law of this state at that time that such an action would not lie. For cases holding similar doctrine, see Story, Conflict of Laws (8th ed.), 844, § 625, note a; Richardson v. N. Y. C. R. Co. 98 Mass. 85. This doctrine has been substantially disapproved by the supreme court of the United States, and by some other courts. Dennick v. Railroad Co. 103 U. S. 11; Herrick v. M. & St. L. R. Co. 31 Minn. 11. The question, however, does not arise in this case, and hence it is unnecessary to consider upon which side the weight of reason and authority preponderates. The present action is not founded upon any statute of one state not existing in others, but upon certain fundamental and well-settled principles of the common law which prevail in most states of the Union. The principles involved are, briefly:

(1) Ordinary negligence by one person, proximately causing personal injury to another, to whom the first owes a duty of care, raises a right of action in the person injured.

(2) In order to recover for such injuries, the injured person must himself have been in the exercise of ordinary care at the time of the injury.

(3) A servant cannot recover damages of his master for injuries caused solely by the negligence of his fellow-servant.

(4) When the master undertakes to furnish the servant a place to work, with the preparation of which place the servant has nothing'to do, then it is the master’s duty to furnish a reasonably safe place to work, and this duty cannot be delegated; and the servant who prepares such place for work is not, in the eye of the law, a fellow-servant with the other.

These principles are well established in this state, and the decisions of the supreme court of Illinois offered in evidence on the trial show that they are recognized in that state. Lake Shore & M. S. R. Co. v. Hessions, 150 Ill. 546; Pullman Palace Car Co. v. Laack, 143 Ill. 242; Libby, McN. & L. v. Scherman, 146 Ill. 540.

Now, the complaint in the present case clearly states a cause of action under the common law for negligence, and the plaintiff’s evidence was sufficient to go to the jury under the foregoing principles of the common law, recognized alike in both states. The evidence, in brief, tended to show that the floor upon which the plaintiff tripped was a place for him. to work in, with the preparation of which he had no duty to perform. If this was so, then, under the principles laid down in Cadden v. Am. S. B. Co. 88 Wis. 409, and Libby, McN. & L. v. Scherman, 146 Ill. 540, we think the “carpenter gang,” whose duty it was to replace the planks, were not fellow-servants of the plaintiff. If they were not fellow-servants, but were simply discharging a duty of the master, then, if they left the plank in question loose, and the plaintiff, without contributory negligence, suffered injury thereby, their failure was failure of the master, under the principles settled in the last-named cases.

We are not to be understood as attempting in advance to lay down rules for the retrial of this case. We have proceeded thus far in the discussion of certain fundamental principles of the law of negligence for the purpose simply of showing that upon these questions, which are the leading .and important questions in this case, the law as expounded by the courts of last "resort in both states is in substantial accord. The case, then, is this: A transitory cause of action arose and became vested in Illinois, under principles of >the common law recognized in both Illinois and Wisconsin alike; and the question is, Can it be prosecuted to judgment in the courts of Wisconsin, jurisdiction of the person having been obtained? We are clearly of the opinion that there can Re but one answer to this question, and that in the affirmative.

It is said, however, that there are some differences in the law as administered in the two states with reference to the question of whether a person employed by the same'master is a fellow-servant or a vice-principal, and that in this respect the laws of Illinois are more favorable to the plaintiff than those of Wisconsin. Upon this basis the trial court held that the case depended upon principles of law which are obnoxious to the law of this state, and that it had no jurisdiction to administer the law of Illinois. It is well known that courts are frequently called upon to administer and enforce the laws of another state. Doubtless upon the trial of this case the plaintiff’s right of action will depend upon the law of Illinois as it shall be shown to be. There is no inherent difficulty in finding out or applying the legal principles governing the cause of action in Illinois when the accident happened. The same objection was made in the case of Walsh v. N. Y. & N. E. R. Co. 160 Mass. 571, and was overruled. We fully agree with what was there said by Holmes, J., in the opinion of the court: “As between the states of this Union, when a transitory cause of action has vested in one of them under the common law as there understood and administered, the mere existence of a slight variance of view in the forum resorted to, not amounting to a fundamental difference of policy, should not prevent an enforcement of the obligation admitted to have arisen by the law which governed the conduct of the parties.” Thus far we go in the present case, and, going thus far, we hold that the trial court should have entertained and tried the case. As to the form of the remedy, the conduct of the trial, and the rules of evidence, the law of the forum would unquestionably prevail.

An Illinois statute of limitations was set up in the answer .as a defense, but the statute was not offered in evidence. Consequently, the question as to its effect upon the plaintiff’s cause of action in this suit was not before the court below, is not before us, and hence is not decided.

By the Cowrt.— Judgment reversed, and action remanded for a new trial.