Baltimore & O. R. Co. v. Chambers in their refusal. Charge 39 was faulty in form, and for this reason was properly refused. Charges 23 and 37, requested by the defendant, were not abstract, as contended in argument by counsel for appellee, and on the facts hypothesized correctly stated the law. The trial court committed error in refusing to give each of said charges. It is insisted by counsel for appellee that charge 38, refused to the defendant, was substantially covered by written charges given at the instance of the defendant. We fail to find in the record any substantial duplicate for charge 38 in the written charges given for the defendant. This charge should have been given as requested. The definition of wantonness as contained in the charge is supported by Brown's Case, 121 Ala. 221, 25 South. 609, and Bank's Case, 132 Ala. 471, 31 South. 573. By the introduction in evidence on the part of the defendant of the showing as to the witness Shafer, the defendant tendered an issue of suicide by the plaintiff's intestate, and in so doing made it competent for the plaintiff to offer evidence in rebuttal of this theory; and such was the character of the evidence objected to by the defendant. The general rule of the relevancy of evidence is that all facts are admissible in evidence which logically tend to prove or disprove the fact in issue. 11 Am. & Eng. Ency. Law (2d Ed.) 502. We find no error in the rulings of the court on the objections to evidence along this line. It was competent to show the condition as to the frequency and numbers of persons passing along the defendant's tracks at the time and place in question, and there was no error in the rulings of the trial court on the defendant's objection to evidence offered along this line. For the errors pointed out, the judgment of the court below must be reversed, and the cause remanded. Reversed and remanded. HARALSON, SIMPSON, and ANDERSON, JJ., concur. BALTIMORE & O. R. Co. v. CHAMBERS. (Supreme Court of Ohio, Oct. 31, 1905.) Death-Wrongful Act-Right of Action.*-No action can be maintained in the courts of this state upon a cause of action for wrongful *For the authorities in this series on the question whether there can be a recovery for wrongful death at common law, see foot-note appended to Gregory v. Illinois Cent. R. Co. (Ky.), 11 R. R. R. 380, 34 Am. & Eng. R. Cas., N. S., 380. For the authorities in this series on the subject of transitory actions and the extraterritorial effect of statutes creating a right of action, see foot-notes appended to Bain v. Northern Pac. Ry. Co. (Wis.), 12 R. R. R. 31, 35 Am. & Eng. R. Cas., N. S., 31; Kansas City So. Ry. Co. 7. McGinty (Ark.), 17 R. R. R. 71, 40 Am. & Eng. R. Cas., N. S., 71; Raisor . Chicago & A. R. Co. (Ill.), 16 R. R. R. 96, 39 Am. & Eng. R. Cas., N. S., 96. Baltimore & O. R. Co. v. Chambers death occurring in another state, except where the person wrongfully killed was a citizen of the state of Ohio. (Syllabus by the Court.) Error to Circuit Court, Mahoning County. Action by Elizabeth M. Chambers against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed. Suit was brought by Elizabeth M. Chambers in the court of common pleas of Mahoning county, Ohio, against the Baltimore & Ohio Railroad Company, to recover damages from said company for negligently causing the death of her husband, Harry E. Chambers, who, she alleged, was killed on the 19th day of September, 1902, on the line of defendant's railroad in the state of Pennsylvania. Plaintiff in her petition pleads certain statutes of the state of Pennsylvania, and avers that under and by virtue of such statutes there accrued to her, because of the matters complained of in her petition, the right to maintain an action and recover damages in respect thereof against the defendant company in the state of Pennsylvania. She therefore claims the right to maintain such action in Ohio. At the trial of this cause in the court of common pleas of Mahoning county, at the May term, 1904, it was admitted by the plaintiff that at the time of the grievances complained of in her petition, and for a long time prior thereto, she and her said husband, Harry E. Chambers, were and had been citizens and residents of the state of Pennsylvania. On the trial of said cause the plaintiff, Elizabeth M. Chambers, to maintain the issues on her part, offered in evidence the deposition of J. J. Green. Thereupon, and before said deposition was read, the defendant objected to the introduction of any testimony in the case, assigning as reason therefor "that the averments of the petition do not constitute a cause of action against the defendant, and that, as the plaintiff and her husband were at the time of the occurrence of the grievances complained of citizens and residents of the state of Pennsylvania, and the negligence complained of and the injury inflicted occurred in the state of Pennsylvania, therefore no right of action accrued in this state." The court overruled the objection, and the testimony offered by the plaintiff was introduced, to which the defendant at the time excepted. Further testimony was offered and received over the objection of the defendant company, and after the arguments of counsel and charge of the court the case was submitted to the jury, who returned a verdict in favor of the plaintiff, Elizabeth M. Chambers. The defendant, the railroad company, within three days made and filed its motion for new trial, which motion was overruled by the court and judgment was entered on the verdict. Thereupon the railroad company prosecuted error to the circuit court of Mahoning county, which court affirmed the judgment of the court of common pleas. The company now brings error in this court. Baltimore & O. R. Co. v. Chambers Arrel, McVey & Tayler, for plaintiff in error. Murray & Koonce and W. S. Anderson & Son, for defendant in error. CREW, J. The record in this case presents the question whether the widow of a decedent, who at the time of his death was neither a citizen of nor resident in the state of Ohio, can maintain an action in the courts of this state to recover damages for his wrongful death occurring in another state, where the statutes of the state in which he was killed gives her the right to maintain such action in that state. Or, differently stated, the question here to be determined is, will the courts of this state take and entertain jurisdiction of actions to recover damages for wrongful death under the statutes of a sister state, where, as in this case, the decedent and his next of kin were, at the time of the injury and death for which a recovery is sought, all citizens of, and residents in, such sister state. As appears of record in this case, the cause of action relied upon and pleaded by plaintiff in her second amended petition is not one arising in, or founded upon any statute of, the state of Ohio; but said cause of action is one that accrued to her in the state of Pennsylvania, and is founded upon certain statutes of that state set forth and pleaded by her in said amended petition as follows: "That by reason of the premises a right of action accrued to plaintiff upon the death of her husband, the said Harry E. Chambers, in the manner aforesaid, by the means aforesaid, under and by virtue of the act of the General Assembly of the state of Pennsylvania approved April 15, 1851 (P. L. 669) and the act of the General Assembly of said state, approved April 26, 1855 (P. L. 309). "Sections 18 and 19 (page 674), of the act of April 15, 1851, are as follows: "Sec. 18. No action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction. ''Sec. 19. Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured, during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.' 66 "Sections 1 and 2 of the act of April 26, 1855, are as follows: 'Sec. 1. The persons entitled to recover damages for any injury causing the death, shall be the husband, widow, children. or parents of the deceased, and no other relative, and the sum recovered shall go to them in the proportion they take his or her personal estate in case of intestacy, and that without liability to creditors. "'Sec. 2. That the declaration shall state who are the partics Baltimore & O. R. Co. v. Chambers entitled to such action; the action shall be brought within one year after the death and not thereafter.' "Plaintiff further says that by section 21, art. 3, of the Constitution of the state of Pennsylvania, of 1874, it is provided as follows, to wit: "Sec. 21. No act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to person or property, and in case of death from said injuries, the right of action shall survive and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.'" A comparison of the foregoing statutes with the wrongful death statutes of our own state, independent of section 6134a (Bates' Ann. St.), which is hereinafter specially considered, will disclose the fact that, although they belong to the same general class of legislation, they are nevertheless in many of their provisions wholly unlike the Ohio statutes. And, while in the present case we entertain the opinion that this dissimilarity in provision is not such as of itself to defeat jurisdiction, yet the fact that such dissimilarity exists is at least, we think, worthy of note. The following are some of the points of difference: Under the Pennsylvania statute the action for causing wrongful death must be brought by the widow, if there be one. Under the Ohio statute (section 6135, Rev. St. 1892) such action can only be brought by the personal representative of the deceased person. In Pennsylvania the action must be brought within one year from decedent's death, and there is no limit to the amount of the recovery. In Ohio (section 6135, Rev. St. 1892) the action must be brought within two years from the death of the decedent, and the amount that may be recovered is expressly limited to a sum not exceeding $10,000. Plaintiff's action in the present case being in its nature special and one founded exclusively upon the statutes of the state of Pennsylvania, and being for a cause of action arising wholly within that state for wrongfully causing the death of a citizen of that state, even though such cause of action be held to be transitory in its nature, the only principle upon which plaintiff may invoke the jurisdiction of, or may maintain such action in, the courts of this state, in the absence of express legislative permission so to do, is that of comity, and, if her action be not sustainable upon that ground, she must be held to be without right to bring or maintain the same in the courts of Ohio, for it must be conceded that the statutes of Pennsylvania cannot operate to confer upon her any such right; they being without authority or binding force beyond the terri torial limits of that state. Judge Story, in his treatise on the Conflict of Laws, lays down, as the basis upon which all reasonings on the law of comity must necessarily rest, the following maxims: First, "that every nation possesses an exclusive sovereignty and jurisdiction within its own territory"; secondly, "that no state or nation can by its laws directly affect or bind property out of its own territory, or bind 18 R R R-49 Baltimore & O. R. Co. v. Chambers persons not resident therein, whether they are natural born subjects or others." The learned judge then adds: "From these two maxims or propositions there follows a third, and that is that whatever force and obligation the laws of one country have in another depend solely upon the laws and municipal regulation of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.' Story on Conflict of Laws, § 23. And Minor, in his very recent work (Conflict of Laws, p. 10, § 6), in discussing the exceptions to the enforcement of a foreign law in the state of the forum, says: "Few general principles of private international law are so well settled as the rule that no foreign law (even though, under ordinary circumstances, it be the "proper law") will be enforced in a sovereign state, if to enforce it will be to contravene the express statute law or an established policy of the forum, or is injurious to its interests." The doctrine of the foregoing authorities and many more might be cited to the same effectleads to the conclusion that an action may only be brought and maintained in a jurisdiction other than that in which the cause of action arose, when the cause of action is itself transitory, and its enforcement not inconsistent with, or obnoxious to, the laws or public policy of the jurisdiction in which the suit is brought. In other words, the law of comity, so called, is not a law of absolute obligation, and its principles can never properly be invoked in aid of the enforcement of a foreign statute, where the effect of the enforcement of such foreign statute would be, or is, to set at naught the positive law or public policy of the particular forum to which resort is had. Logically, then, the inquiry suggests itself in the present case, is it in harmony and accord with the laws and public policy of the state of Ohio to permit the enforcement in the courts of this state of a cause of action arising under the wrongful death statutes of the state of Pennsylvania in favor of the next of kin of one who at the time of his death was neither a citizen of nor resident in the state of Ohio. Primarily the Legislature must be held to be the judge of questions of public policy, and, if it has spoken plainly, either for or against the enforcement of a statute of a sister state in a given case, the courts must obey its mandate. It is well understood that at common law, in pursuance of the maxim "Actio personalis moritur cum persona, no right of action existed in favor of the heirs, distributees, or personal representative of a deceased person for damages for his wrongful death. The right of action which the injured person had abated with his death. This unsatisfactory state of the common law, with respect to the right to recover for death due to negligence or wrongful act, led to the passage of statutes giving a right of recovery in such cases. The earliest of these statutes was the English act of 1846 (St. 9 & 10 Vict. c. 93), commonly known as "Lord Campbell's Act," and this enactment has served as the model for much of the subsequent legislation on this subject, now to be found in most, if not in all, of the states of the Union. |