Gunther v. Dranbauer

McSherry, C. J., delivered the opinion of the Court. This suit was instituted by the appellee against the appellant in the Superior Court of Baltimore City. The declaration contains three counts. In the first it is alleged that the defendant placed or caused to be placed in a public highway of Baltimore County, at the intersection of Third and O’Donnell streets in Canton, a block or wooden beam which was so placed as to obstruct the highway, and during the night time was left without placing any light to indicate danger, and that in consequence of such negligent and improper conduct of the defendant the plaintiff in passing along the highway and using due care himself, drove over the obstruction and was thrown out of his wagon and seriously injured.

The second count charges that the defendant constructed a footwalk in front of his houses, leaving a portion of his land to be used as a roadway, and upon said roadway» where wagons passed, he placed a block or wooden beam so as to obstruct the roadway, whereby the plaintiff using due care, &c., as in the first count. The third count sets forth that the defendant placed or caused to be placed at the edge of the public highway a block or wooden beam, so as to cause a dangerous obstruction to those using the said road or highway, and placed the same in an improper and negligent manner and left the same upon the night of a certain day without placing any light or signal of danger thereupon, and that the plaintiff whilst driving along the road in a wagon, accidentally and without fault on his own part drove said wagon against the said block or beam whereby he was thrown out and injured, &c. To the whole declaration, and not to each count thereof, a demurrer was filed ; and it is insisted that the demurrer should have been sustained because the injury having occurred in Baltimore ⁶ County, and the action being a local and not a transitory-one, the Superior Court of Baltimore City had no jurisdiction to try it. The Court below overruled the demurrer and in doing so committed, it seems to us, no error whatever.

It is undoubtedly true that local actions must be brought in the jurisdiction where they arise; whilst transitory actions may be instituted wherever the defendant happens to be. The difficulty met with in practice consists not so much in a dispute over this elementary principle as in the application of it; and the chief perplexity encountered in its application springs from a failure to clearly distinguish between what are local and what transitory actions. Speaking generally, it has been said: “ If the cause of action could only have arisen in ¡j. particular place the action is local, and the suit must be brought in the county or place in which it arose. Actions for damages to real property, actions on the case for nuisances, or for the obstruction of one’s right of way are, according to all the authorities, local.

On the other hand, actions for injuries to the person or to personal property, actions on contracts, and in fact all actions founded on transactions which might have taken place anywhere, are transitory.” Crook v. Pitcher, 61 Md. 513 ; 1 Chitty Pl. 268 (8th ed.) But there must be a test by which it may be determined whether a particular cause of action sounding in damages is local or transitory; and an unerring one inheres in the nature of the subject of the injury as differing from the means whereby and the mere place at which the injury was inflicted. If the subject of the injury be real estate or an easement such as a right of way, whether private or public, obviously the action must be local, for the reason that the injury to that particular real estate or easement could not possibly have arisen anywhere else than where the thing injured was actually situated. But if the subject of the injury be an individual, then an injury to that individual’s person, no matter by what .means occasioned or where inflicted, is essentially an injury to a subject not hav ⁷ ing a fixed, stationary, immovable location; and an action to recover damages therefor would necessarily be transitory. To borrow an apt illustration used in Mason v. Warner, 31 Mo. 508 : “ If an agistor of cattle open a pit in his field and negligently leave it open, whereby my horse at pasture is permitted to fall into it and is killed, the means and place of injury are local, but the subject of injury—the horse—is; transitory and capable of injury as well at one place as another.

But if my horse trespass upon the agistor’s field, break the close, and tread down and eat the grass; here the means of injury—the horse—is movable, transitory, but the subject of injury—the realty—is immovable, local and therefore not capable of being injured at any other place.” It is apparent that an injury to a person on a highway is not an injury to the highway. It does not follow that because an injury to a person occurs on a highway that the right of such person to use the highway is indispensably at issue. An action founded on and growing out of an obstruction of a highway, and raising distinctively and specifically the plaintiff’s right to use the way is essentially a local action, because it involves an interest in the local, fixed subject itself; but an injury happening to an individual on that same highway by reason of any tort or wrongful act of another is not necessarily an injury to the bare right of user, even though an obstruction of the highway may be incidently concerned as a mere instrumentality immediately producing the injury complained of. If the pending action involved the right of the plaintiff to use the alleged highway—if he claimed a right to use it and the defendant obstructed the way, and by that or other means denied the existence or interfered with the exercise of the asserted right—the cause of action would indisputably be local.

The right of the plaintiff in or to the use of the highway would then be the subject of the injury. But there is no issue here as to the right of the plaintiff to use the highway. The suit was not brought to recover damages for an interference with the plaintiff’s right of user, but to recover for a personal ⁸ injury sustained on the highway by reason of the defendant’s negligence in placing and leaving either on or near to the highway an instrumentality calculated to cause, and in this instance actually causing, a personal injury. The subject of the injury is the person and not the highway.

The highway can only be injured as a highway where it is, for it has a fixed location there and can be no where else—the person could have been injured there or elsewhere, for the person is transitory. The authorities relied on in support of the demurrer are not in conflict with these views. The form in 2 Chitty's Pl. 581 (16th ed.) cannot be regarded as controlling. It is true the form there given strongly tallies with the first count of this declaration, and it is stated that the venue is local ; but precisely the same form is given in vol. 2, p. 599, 8th ed. of the same work, and it is not stated that the vemte is local.

In Greasly v. Codling, 2 Bing. 263, it is expressly shown that “ the object of the action was to establish a right of way,” and, of course, therefore, the action was necessarily local. But it is needless to review the cases in detail, for Mr. Poe in his excellent work on Pleading, p. 29 (1st ed.) sums up the law in these words : “ The local actions are Ejectment, Dower, Replevin and Trespass to real property. All the other actions are transitory.” Let us go one step further. Even if it be conceded— though it is not—that the first and second counts declared for an obstruction of and injury to a thoroughfare in such a way as to indicate that the injury complained of could only be sued for in Baltimore County ; still the third count manifestly does not involve an interference with a right of way, but proceeds upon averments imputing to the defendant negligent acts done by him outside of the right of way, whereby a personal injury was occasioned to an individual rightfully using the way.

Under this count no question of impeding Ravel over the highway is raised, and the single inquiry presented by the third count is whether the defendant had been guilty of such negligent conduct—not in ob ⁹ structing a highway—but in producing a personal injury by a wrongful act as would give the plaintiff a cause of action. Planting a post so near the highway as to cause personal injury to another who is lawfully using the highway though not a physical obstruction of the highway is, if injury does ensue therefrom, an actionable wrong differing in no respect from a similar injury caused by the same post if held in the hands of the defendant instead of being planted in the soil near the highway. Inasmuch, then, as the third count does not set forth a cause of