§ 195. Situs of Tort or Locus Delicti. -It is not always easy to ascertain the situs of a tort, the locus delicti, which is to furnish "the proper law" of the case. If the whole injury is caused by one single act, or by several acts, all of which occur in the same jurisdiction, there is no trouble usually in locating the tort, as having its situs at the place where the injury occurs. But if the tort is committed upon the high seas, or if the cause of the injury arises partly in one State and partly in another, there is more difficulty.

In case of torts committed on board of merchant vessels on the high seas, the tort must be regarded as committed in the territory of the State or country to which the vessel belongs. The "law of the flag" is the lex loci delicti.' But if, when the tort is perpetrated, the vessel is in a foreign port or in the ter ritorial waters of a foreign State, it is generally regarded as becoming subject to the foreign law, and no longer as itself a part of the territory of the State whose flag it flies. The law of the foreign port would in such cases be the lex loci delicti."

If the injury complained of, though committed on the hight seas, does not occur aboard a vessel (to which the principle of exterritoriality may apply), as where it results from a collision between two ships belonging to different countries, the tort not occurring wholly on either ship, the general maritime law, as administered in the forum, must govern.3

Another case in which there may be doubt as to the situs of a tort arises where the injury is the result of a series of acts, some of which occur in one State, while the culmination takes place in another.

Tel. Co. v. Phillips, 2 Tex. Civ. App. 608, 21 S. W. 638. See Machado v.
Fontes, 2 L. R. Q. B. D. 231.

1 Dicey, Confl. L. 663; Whart. Confl. L. § 473; McDonald v. Mallory, 77 N. Y. 546, 33 Am. Rep. 664; Cavanagh v. Nav. Co., 13 N. Y. Supp. 540; Dupont v. Quebec S. S. Co. (Canada), 11 S. C. 188. A fortiori would this be true, under the rules of public international law, of torts committed aboard public vessels.

2 Geoghegan v. Atlas S. S. Co., 22 N. Y. Supp. 749; Robinson v. Nav. Co, 43 U. S. App. 191, 73 Fed. 883. But see Dupont v. Quebec S. S. Co. (Canada), 11 S. C. 188.

The Brantford City, 29 Fed. 373, 383; The Scotland, 105 U. S. 24.

The rule in such cases is that the place where the liability of the perpetrator first becomes fixed is the locus delicti, or situs of the tort.

Thus, if the cause of a railway accident is an omission or neglect transpiring in one State, as the result of which the accident and consequent injury occur in another, the seat of the tort is the place where the accident and injury occur which fasten the liability (if any there be) upon the defendant, not the place where the negligence or omission transpired, which of itself would fix no liability upon the defendant, save for the subsequent injury resulting therefrom. The negligence or omission is not in itself actionable, unless and until it is followed by resulting injury.5

If the accident and accompanying injury take place in one State, while death results from the injury in another, and suit is instituted to recover damages for the death, the situs of the tort will depend upon the question whether the tort complained of is the injury or the resulting death. Where the laws of the two States differ, this may become of importance. Following the general rule already laid down, since an independent liability is fastened upon the defendant by reason of the injury, such guilt as there is attaching to him at that time, the place

Alabama, etc. R. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 806; Railroad Co. v. Doyle, 60 Miss. 977; Louisville & N. R. R. Co. v. Williams, 113 Ala. 402, 21 So. 938, 939; Rudiger v. R. R. Co., 94 Wis. 191, 68 N. W. 661; McCarthy v. R. R. Co., 18 Kan. 46, 26 Am. Rep. 742; De Ham v. R. R. Co., 86 Tex. 68, 23 S. W. 381; Needham v. R. R. Co., 38 Vt. 294.

5 Alabama, etc. R. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803, 806; Railroad Co. v. Doyle, 60 Miss. 977. But see Cin., H. & D. R. R. Co. v. McMullen, 117 Ind. 439, 20 N. E. 287; Louisville & N. R. R. Co. v. Williams, 113 Ala. 402, 21 So. 938. In the last case, thegligence occurred in Tennessee, and death resulted therefrom in Alabama. It was held that the law of Tennessee should determine the defendant's responsibility. But it does not clearly appear from the opinion whether the accident and injury occurred in Tennessee or in Alabama. Upon this point the correctness of the decision depends.

For analogous principles with respect to crimes, see post, § 204; Alabama, etc. R. R. Co. v. Carroll, supra; Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, and note.

of the injury is the true locus delicti. The death may increase the liability, but it does not create it."

An injury resulting from the act of a living agency will be referred to the place where the act is done. This principle applies not only to the tortious acts of an agent, for which it is sought to hold the principal responsible in another State," but to cases where the defendant is the owner of an animal which strays into another State and there does an injury for which the owner is held responsible. The place of the injury is the locus delicti.

8

Thus, in Le Forest v. Tolman, a Massachusetts statute provided that "every owner or keeper of a dog shall forfeit to any person injured by it double the amount of the damage sustained by him, to be recovered in an action of tort" (without regard to the scienter). The defendant lived in Massachusetts and the plaintiff in New Hampshire. The defendant's dog strayed over into New Hampshire and bit the plaintiff, who thereupon sued the defendant in Massachusetts. There was no evidence of any New Hampshire statute on the subject, and by the common law presumed to be in force in New Hampshire the scienter was an essential element of the cause of action. No scienter was shown. The court held that the action could not be maintained in Massachusetts, since the New Hampshire law must control.

It is to be observed furthermore with respect to the situs of torts, that every crime against an individual is also a tort. In such cases, if a private action is brought upon the tort, its situs is the situs of the crime, which will be discussed in a subsequent section.

The situs of torts to real property will of course be the situs of the land against which the tort is committed. Nor can any

Rudiger v. R. R. Co., 94 Wis. 191, 68 N. W. 661; Needham v. R. R. Co., 38 Vt. 294; McCarthy v. R. R. Co., 18 Kan. 46, 26 Am. Rep. 742; De Ham v. R. R. Co., 86 Tex. 68, 23 S. W. 381. Perhaps also Louisville & N. R. R. Co. v. Williams, 113 Ala. 402, 21 So. 938, may be referred to this principle. The facts of that case are not clearly stated.

7 As in case of railway accidents like those above mentioned.

8 117 Mass. 109.

⚫ Post, § 204.

serious doubt arise that the situs of torts to personal property is the actual situs of the property, not its legal situs at the domicil of the owner, unless that is also its actual situs.10 But so far as the liability of the defendant for the conversion of goods depends upon matter of title, etc., the "proper law" regulating the title or other ground of defense is to be looked to, which may or may not be the lex loci delicti.11

§ 196. Law governing Torts in General. It is a general rule subject to but few exceptions that the lex loci delicti governs the right of an injured party to sue for a tort, the liability of the perpetrator, and the defenses he may plead. The modern tendency, as we have seen, is in favor of regarding actions for torts as of a transitory nature, not confined to the place where the tort occurs. These principles give birth to another well worthy of notice; namely, a tendency to support an action for a foreign tort, if actionable by the law of the State where it is committed, and subject to that law, regardless of the law of the forum; the only proviso being that it is not expressly contrary to the law or to some very pronounced policy of the forum. The courts are inclined to be very liberal in sustaining such actions.

The tendency of the recent decisions is especially observable in respect to the liberality shown in refusing to set aside the operation of a proper foreign law because of mere dissimilarities

10 Carson v. Smith, 133 Mo. 606, 34 S. W. 855; Southern Pac. Co. v. Graham, 12 Tex. Civ. App. 565, 34 S. W. 135. In Hoffman v. Carow, 22 Wend. (N. Y.) 285, an action was brought in New York by a plaintiff resident there against certain auctioneers, citizens of Maryland. The action was trover for certain goods stolen from the plaintiff, and put in the defendants' hands by the thief for sale, they being ignorant of the felony. It was held that the law of the legal situs of the goods (the owner's domicil) should determine the liability of the defendants for the conversion of the goods, not the law of Maryland, where the conversion occurred. It is submitted that the court here confused two distinct principles. It is generally true that the situs of chattels, for the purpose of transfers or dealings with them by the owner, is the situs of the owner. But so far as the dealings of third persons therewith are concerned, as where they steal the chattels situated abroad or convert them to their own use, the actual situs of the chattels is the locus delicti, and furnishes the ". proper law" to govern both the crime and the tort.

11 See Martin v. Hill, 12 Barb. (N. Y.) 631; Edgerly v. Bush, 81 N. Y.

to the law of the forum. Thus, it was formerly laid down as a rule in these cases that, in order for the courts to enforce a foreign lex delicti, the tort must not only be actionable in both States, but the laws of both States must be substantially similar, if not identical.1 The presumption was rather against the right to recover for a foreign tort than in favor of it. At present, however, the reverse of this is true, the courts favoring the right to recover in such cases, unless the right is vetoed by the lex fori. It may even be doubted whether it is necessary that the lex fori should make the tort actionable at all, provided its policy does not emphatically prohibit a recovery. However this may be, it is quite certain that it is no longer requisite that the laws of the two States should be substantially similar. If the lex delicti is not opposed to the settled policy of the forum, it will be enforced there, provided the court has jurisdiction of the defendant.3

4

2

Thus in a recent Canadian case, the action was for false imprisonment against a foreign customs officer. He had arrested the plaintiff without a warrant, under a law of his own country authorizing such arrests in case of persons suspected of violating its customs laws. The point was made that this foreign law (lex loci delicti) was contrary to Canadian notions of justice and propriety and contrary to its policy, but the court ruled that it was not so manifestly unjust as to be rejected as a defense to the action.

§ 197. Defenses to Actions for Tort. Not only does the lex loci delicti control the plaintiff's right to sue and the grounds

1 See Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771; Leonard v. Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491; St. Louis, etc. R. R. Co. v. McCormick, 71 Tex. 660, 9 S. W. 540; Hamilton v. R. R. Co., 39 Kan. 687, 18 Pac. 57, 60; Cin., H. & D. R. R. Co. v. McMullen, 117 Ind. 439, 20 N. E. 287; O'Reilly v. R. R. Co., 16 R. I. 388, 19 Atl. 245; Morris v. R. R. Co., 65 Ia. 727, 23 N. W. 143.

2 See Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771; Nelson v. R. R. Co., 88 Va. 971, 14 S. E. 839.

8 Herrick v. R. R. Co., 31 Minn. 11, 47 Am. Rep. 771; Evey v. R. R. Co., 52 U. S. App. 118, 81 Fed. 294, 38 L. R. A. 387; Huntington v. Attrill, 146 U. S. 670; Law v. R. R. Co., 91 Fed. 817.

May v. Smith, 32 N. B. 474.