
    BEACH a. THE BAY STATE COMPANY.
    
      Supreme Court, First District; Special Term,
    
      May, 1858.
    Statutory Cause of Action.—Act or Negligence in another State.—Statutory Construction.
    The right of a State to give its citizens redress for any personal injury committed without as well as within its territorial limits, when it can obtain the means of exercising jurisdiction on the wrong-doer, is not curtailed because the redress is one given by statute instead of having been permitted by the common law. Whether a remedial statute is extra-territorial with reference to the class of injuries for which it proposes to afford redress or compensation, depends upon the intention of the Legislature, to be gathered from the language employed, the previous state of the law, the mischief to be prevented, and the remedy to be applied.
    Those parts of the acts of 1847 and 1849 (Laws of 1847, 675; Laws of 1849, 388) which are concerned with providing redress for the families of those who have been deprived of life by the wrongful act, neglect, or default of others, are entirely remedial, and to be construed liberally.
    Under those statutes, an action may be maintained in this State to recover for injuries committed without the State and resulting in death, without reference to the laws of the place where the injuries were committed.*
    * See to the contrary efi>et, Van Derwerken a. The New York and New Haven Railroad Company, Ante, 339.
    Demurrer to complaint.
    The action was brought by the plaintiff, who was the widow and administratrix of John 0. Beach, deceased, to recover, under the acts of 1847 and 1849, for the wrongful act or neglect of the defendants, which caused her husband’s death. The complaint alleged that the plaintiff was, and the deceased had been, a resident of the city of New York. It stated the death of the deceased, and the issue of letters of administration, and that the deceased left surviving him the plaintiff, being his widow, and also two brothers and two sisters (naming them); that the defendants were a corporation organized under the law of Massachusetts, and having an office in the city of New York, where it transacted its business; that being engaged in the business of transporting passengers by steam-vessels between Pall Eiver and the city of New York, they, on a day named, received the deceased as a passenger for hire upon the Empire State, one of their boats, to be safely carried from Fall River to New York; that on that day, while on the passage, by the negligence of the defendants and their agents and servants, the boat experienced a disaster by the' explosion or escape of steam, whereby the deceased was greatly injured and wounded, and in about ten. hours died in consequence of the injuries. The complaint further stated that both the plaintiff and the next of kin mentioned had sustained pecuniary damages to the amount of $5000 by the death of the deceased; and that, by reason of the statute of the State of New York in such case made and provided, referring to the acts of 1847 and 1849 by their titles and dates of passage, an action had accrued to the plaintiff. Where the alleged injuries took place, whether within the State of New York or not, was not stated.
    The defendants demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
    
      D. D. Lord, for the defendants.
    I. The act of 1849 embodying that of 1847, gives a remedy not known to the common law. It is a statutory remedy. (8 Mass., 72; 3 Johns., 369; 14 Ib., 338; 10 Wheat., 76 ; 4 T. R., 884; Broom’s Max., 400.) 1. The statute, in giving a remedy against the principals as owners of vessels and the like, gives them a security for the conduct of those in their employ by a heavy penalty. 2. The statutes are local, and only effectual within the limits of the State on acts therein done. Such is the effect of all statutes; they can have no extra-territorial effect. 3. Especially where the statute is a penal statute, as these acts are, both as to owners and agents, engineers, &c.
    II. The complaint shows a contract made in Massachusetts, and a tort on a passage between Fall River and New York. It does not aver the place of the accident to be within the State. 1. Place, under the allegation of this passage, and under the limited effect thereupon of these statutes, is material. It is issuable. Its decision decides the case. 2. It not being averred to be within New York that the explosion occurred, and the place being material to form a good cause of action, the construction of the pleading is, that the pleader could not state the place to be within this State. 3. The generality of language does not cover the omission of a material allegation. (See Cruger a. The Hudson River Railroad Company, 2 Kern., 200.)
    
      Mann & Rodman, for the plaintiffs.
    I. Personal actions for damages can be brought against a person wherever found. If this principle is founded on a universal sense of abstract justice, then it is applicable to the present case. If on the common law, certainly the common law cannot be of greater authority than the statute; and if so founded, it follows that the act of the Legislature can give an action for damages in cases even arising out of the territorial jurisdiction. For the State can create what it is supposed obsolete statutes or customs, which compose parts of the common law, have created. (In Hegeman a. The Western Railroad Company, 3 Kern., 10, the action was for injuring plaintiff in Massachusetts, and no question was raised as to jurisdiction.) The company may be sued in the State where it has its place of business. (Pierce’s Am. R. R. Law, 503; Story’s Confl. of Law, 450, § 538.)
    II. The Legislature and the courts have acted on this principle in relation to the action of replevin. The statute of replevin— prescribing that whenever any goods or chattels shall have been wrongfully distrained, or otherwise wrongfully detained, an action of replevin may be brought for the recovery thereof, and of the damages sustained, &c.—is equally deemed to operate in cases of the unlawful taking of goods, &c., out of the State as within. And injuries to personal property may be brought wherever the defendant can be taken, though the cause of action arose in another State or country. (Glen a. Hodges, 9 Johns., 67.) Courts of this State have jurisdiction of torts committed on board of a foreign vessel on the high seas, though both parties are foreigners. (Gardner a. Thomas, 14 Johns., 134.) Actions for personal injuries follow the person or forum of the defendant. (Ib. See also Johnson a. Dalton, 1 Cow., 543, confirming the above. See also 18 Johns., 257; 14 Ib., 154; 7 Hill, 95.)
    III. The act on which this action is founded merely makes an action survive in favor of representatives, which otherwise ■ would have died with the person, being a mere modification of a common-law principle. The corporation or defendant would have been liable in our courts to the party dying, if he had survived, for any injury sustained, and the merely extending the principle involved to representatives for damages, is within the power of the Legislature.
    IY. The act does not affix a penalty to an act committed out of the jurisdiction of the State, but merely gives an action for actual damages sustained, which does not at all approximate to the idea of a penalty. A penalty is in the nature of a punishment, but the act referred to is merely for the purpose of obtaining compensation for damages.
    Y. It is a mere principle or maxim of the common law, that aotio personalis moritur cum persona. The power that could establish that common-law principle, could certainly establish the principle that the action should survive to representatives. The Legislature can certainly go as far as custom in creating law. As common law, or universal assent, gives rise to the action of assault and battery everywhere without regard to where it was committed, so common or statute law can give the same action to the representatives of the party for damages.
    YI. The contract of the defendant to carry the deceased safely had reference to the laws of this State, and connected the defendant with them, and of itself rendered him subject to the act on which this action is founded, whenever the defendant could be caught within the jurisdiction of the State, so as to be subject to the service of process. A contract, and the rights resulting, are governed by the laws of the place where the contract is to be carried into effect.
    Vil. The negligence of the defendant whereby the disaster happened commenced in the State of Hew York when the boat left it, and where the defendant may be considered as residing; and that negligence continued to Fall River, and on the return passage, when the disaster happened. It is, therefore, not material where the disaster happened. The negligence in causing the death is the material charge: it is no matter where the immediate circumstance occurred which produced the death.
    YM. The action for damages by a citizen of the State is of a transitory nature, and will follow the person and forum of defendant wherever found; and the laws of the State of Hew York having provided the means of commencing an action against a foreign corporation, by attachment of its goods or otherwise, for the purpose of the action, the corporation is found in the State óf blew York, where the action is commenced against it by the service of process on it conformable to those laws. The action is only one means of getting at its property, to answer for the damage caused.
    IX. The act of the Legislature of this State on which this action is founded is general in its terms, so as to include foreign corporations, and should be construed coextensively with the mischief sought to be provided against, and with a view to the intention and motive with which the act was. passed. The corporation or defendant would have been liable to the intestate in the present case, and is therefore liable under the act by its express terms.
    X. The act on which this action is founded is not for the purpose of punishment, but for the recovery of damages to survivors by causing the death of a human being. It is not, therefore, strictly liable to those rules of interpretation which apply to acts passed for the punishment of crimes occurring without the limits of the territorial power of the Legislature.
    XI. The defendant, at the time of the occurrence which gave rise to the cause of action, and during the existence of the act of the Legislature on which this action is founded, having an office in the city of ISTew York, and transacting its business there, and running the steamboat, on which the disaster happened, from and to the city of blew York, as charged in the complaint, impliedly assented to be bound by the terms of that act of the Legislature.
    XII. It is not necessary that the act of the Legislature, on which the action is founded, should specify that it should apply to foreign corporations ; it mentions corporations generally, and it will apply to them in all cases, and certainly to the defendant, who carried on business under that act, and quasi resided within the limits of the legislative power.
    XIII. But the intention of the act, and the mischief it was designed for, sufficiently indicate that the Legislature intended the act to apply to a case like the present, and rendered it unnecessary to be more specific.
    XIY. The Legislature had power to pass an act of the nature of that on which this action is founded, and to make it operative in a case like the present. And having passed the act, which by its terms applies to the present case, the defendant is bound by it. 1. Because the act was intended to regulate and control the business of the nature of the defendants’, as far as making them liable to damages would regulate that business. 2. The defendants by continuing such business to, in, and from the State of New York, and transacting their business and having an office within said State, it owes obedience to the laws of the State. 3. It is the law of nations, that a stranger entering a State becomes subject to its laws. (Vattel, N. Y. ed. of 1796, 238, near 9 1. p. 108.) 4. Since the State may forbid the State being entered when it thinks proper, it has doubtless a power to make the conditions on which it will admit of it. (Vattel, 235.) 5. Even in countries where every stranger freely enters, the sovereign is supposed to allow him access only upon the tacit condition that he be subject to the laws. (Ib., 236.) 6. In virtue of this submission, the stranger who commits a fault ought to be punished according to the laws of the country. (See also Ib., 235, 237, 238, 63, 64,162, 141, 170.)
    XY. It being the duty and the right of a State to pass all laws necessary for the preservation of its citizens and their property, whoever has notice of those laws passed for such purposes, and having acted (even out of the territorial limits of such State) in contravention of those laws, and voluntarily comes within those limits, is bound to answer for that contravention.
    XYI. Foreign corporations who carry on business to and from a foreign State are equally bound as natural persons to conform to the laws of the State which from their nature are applicable to them. Their business is carried on in reference to them.
    XV11. The obligation to make reparation for an injury by negligence, is founded upon an original moral duty enjoined on every person, so to conduct himself, or exercise his own rights, as not to injure another. (Kerwhacher a. C. C. & C. R. R. Company, 3 Ohio. 172.)
    XYIH. Whenever a violated duty necessarily springs from contract alone, the action is quasi ex contractu, though the gravamen is laid in negligence. (Livingston a. Cox, 6 Penn., 360, 362.) Actions for tort, when arising out of matters of contract, as actions for negligence, are subject to all the incidents of actions on contract. (Ib.)
    
   Clerke, J.

It cannot be denied that any one State or nation has a right to give its citizens redress for any personal injury committed without as well as within its territorial limits, when it obtains the means of exercising jurisdiction on the wrongdoer. ■ This has always been recognized in the common law. Many, if not most, of the actions instituted in our courts of justice are transitory and not local; and if the cause upon which any one of them is founded arose in Japan, it would be just as tenable as if it arose in the State of Mew York. The authority of the State in this respect is not curtailed because the redress is given by statute, instead of having been permitted by the common law. They are both alike the expression of the supreme power, equally entitled to obedience and respect.

It is erroneous, therefore, to say “ that statutes (which means all statutes) are local, and only effectual within the limits of the State on acts therein done.” A penal law, indeed, is strictly local, and has no operation beyond the jurisdiction of the country where it was enacted. But whether a remedial statute is extrart&mtovial in reference to the class of injuries for which it proposes to afford redress or compensation, depends, like other statutes, upon the intention of the Legislature, to be gathered from the language employed, the law as it previously existed in relation to the same subject, the mischief to be prevented, and the remedy to be applied ; and we must also bear in mind that every such statute is to be liberally construed.

It has been asserted that the statutes of 1847 and 1849, allowing compensation to the representatives of deceased persons, for causing the death of those persons by wrongful act, neglect, or default, are penal and not remedial statutes. The second section of the act of 1849 is undoubtedly penal. But a penal statute may also be a remedial law (1 Wils., 126); and a statute may be penal in one part and remedial in another. (Dougl., 702.)

But in the redress which these statutes afford to the bereaved families of those who have been deprived of life by the wrongful act, neglect, or default of others, they are entirely remedial, and they are calculated to be most beneficial in their operation, —not only in their compensatory effect in warding off, at least for a season, the destitution of many a family bereft of its provider, but in preventing the frequent occurrence of the melancholy disasters, which are too often the result of the most culpable carelessness and disregard of human life.

I can see no reason to infer that the Legislature intended to confine the operation of these acts, in their remedial features, to injuries committed within the territorial limits of this State, so as to exempt persons, natural or artificial, residing in other States, provided the necessary steps are taken to obtain jurisdiction over such persons. The language is, doubtless, very general, and does not expressly specify injuries committed without the State, and does not specify any thing relative to the residence or citizenship of the perpetrators of the injury; or, if they are artificial persons, the place or country where they might have been organized. But, on the other hand, it does not except such injuries or such persons. And there is no reason whatever to suppose, when we consider the nature of the calamity to be redressed, and the purpose for which redress is prescribed, that the Legislature intended any restriction beyond what the generality of the language itself imports.

With regard to the penal section of the act of 1849, we cannot by that construe the remedial section. Each stands by itself, on the well-known rules of the constitution—a strict construetion for the one, and adiberal construction for the other. And, ■ in the absence of any thing to the contrary, we are to suppose that the Legislature intended that the acts in question should be interpreted according to those rules, which are part and parcel of the law of the land, recognized by the Legislature as well as by the judiciary; and all laws, it must be presumed, are formed in reference to them.

, And, after all, do not these statutes merely provide,' in their remedial character, an extension of the remedy afforded by the common law ?

To be sure, the death of the deceased, and not the injury which caused the death, is the immediate ground of the action.

But the death is the sad result and serious aggravation of the injury by which the family are deprived of the means of support. as the deceased person himself, if he survived the injury, would, according to the extent of it, be deprived of the ability to contribute to their support.

If Mr. Beach were maimed and mutilated by this explosion, and survived the accident, he certainly would, by common law, have a right of action for damages against the defendants, whether it occurred within this State or not. The action would be undeniably transitory. Do these acts, in their remedial features, go any further than to extend and transmit this common-law right, giving compensation, for the injury that produced the death, to the family and representatives of the deceased?

For these reasons, I hold that this action is well brought, even on the assumption that the explosion occurred without the territorial limits of the State of Kew York.

Demurrer overruled, with costs, with liberty to answer within ten days, on payment of costs.  