FIRST DIVISION

[G.R. No. 122191.  October 8, 1998]

SAUDI ARABIAN AIRLINES, petitioner, vs. COURT OF APPEALS, MILAGROS P. MORADA and HON. RODOLFO A. ORTIZ, in his capacity as Presiding Judge of Branch 89, Regional Trial Court of Quezon City, respondents.

D E C I S I O NQUISUMBING, J.:

This petition for certiorari pursuant to Rule 45 of the Rules of Court seeks to annul and set aside the Resolution [1] dated September 27, 1995 and the Decision [2] dated April 10, 1996 of the Court of Appeals[3] in CA-G.R. SP No. 36533,[4] and the Orders[5] dated August 29, 1994[6]and February 2, 1995[7] that were issued by the trial court in Civil Case No. Q-93-18394.[8]

The pertinent antecedent facts which gave rise to the instant petition, as stated in the questioned Decision[9], are as follows:

“On January 21, 1988 defendant SAUDIA hired plaintiff as a Flight Attendant for its airlines based in Jeddah, Saudi Arabia. x x x

On April 27, 1990, while on a lay-over in Jakarta, Indonesia, plaintiff went to a disco dance with fellow crew members Thamer Al-Gazzawi and Allah Al-Gazzawi, both Saudi nationals.  Because it was almost morning when they returned to their hotels, they agreed to have breakfast together at the room of Thamer.  When they were in te (sic) room, Allah left on some pretext.  Shortly after he did, Thamer attempted to rape plaintiff.  Fortunately, a roomboy and several security personnel heard her cries for help and rescued her.  Later, the Indonesian police came and arrested Thamer and Allah Al-Gazzawi, the latter as an accomplice.

When plaintiff returned to Jeddah a few days later, several SAUDIA officials interrogated her about the Jakarta incident.  They then requested her to go back to Jakarta to help arrange the release of Thamer and Allah.  In Jakarta, SAUDIA Legal Officer Sirah Akkad and base manager Baharini negotiated with the police for the immediate release of the detained crew members but did not succeed because

plaintiff refused to cooperate.  She was afraid that she might be tricked into something she did not want because of her inability to understand the local dialect.  She also declined to sign a blank paper and a document written in the local dialect.  Eventually, SAUDIA allowed plaintiff to return to Jeddah but barred her from the Jakarta flights.

Plaintiff learned that, through the intercession of the Saudi Arabian government, the Indonesian authorities agreed to deport Thamer and Allah after two weeks of detention.  Eventually, they were again put in service by defendant SAUDI (sic).  In September 1990, defendant SAUDIA transferred plaintiff to Manila.

On January 14, 1992, just when plaintiff thought that the Jakarta incident was already behind her, her superiors requested her to see Mr. Ali Meniewy, Chief Legal Officer of SAUDIA, in Jeddah, Saudi Arabia.  When she saw him, he brought her to the police station where the police took her passport and questioned her about the Jakarta incident.  Miniewy simply stood by as the police put pressure on her to make a statement dropping the case against Thamer and Allah.  Not until she agreed to do so did the police return her passport and allowed her to catch the afternoon flight out of Jeddah.

One year and a half later or on June 16, 1993, in Riyadh, Saudi Arabia, a few minutes before the departure of her flight to Manila, plaintiff was not allowed to board the plane and instead ordered to take a later flight to Jeddah to see Mr. Miniewy, the Chief Legal Officer of SAUDIA.  When she did, a certain Khalid of the SAUDIA office brought her to a Saudi court where she was asked to sign a document written in Arabic.  They told her that this was necessary to close the case against Thamer and Allah.  As it turned out, plaintiff signed a notice to her to appear before the court on June 27, 1993.  Plaintiff then returned to Manila.

Shortly afterwards, defendant SAUDIA summoned plaintiff to report to Jeddah once again and see Miniewy on June 27, 1993 for further investigation.  Plaintiff did so after receiving assurance from SAUDIA’s Manila manager, Aslam Saleemi, that the investigation was routinary and that it posed no danger to her.

In Jeddah, a SAUDIA legal officer brought plaintiff to the same Saudi court on June 27, 1993.  Nothing happened then but on June 28, 1993, a Saudi judge interrogated plaintiff through an interpreter about the Jakarta incident.  After one hour of interrogation, they let her go.  At the airport, however, just as her plane was about to take off, a SAUDIA

officer told her that the airline had forbidden her to take flight.  At the Inflight Service Office where she was told to go, the secretary of Mr. Yahya Saddick took away her passport and told her to remain in Jeddah, at the crew quarters, until further orders.

On July 3, 1993 a SAUDIA legal officer again escorted plaintiff to the same court where the judge, to her astonishment and shock, rendered a decision, translated to her in English, sentencing her to five months imprisonment and to 286 lashes.  Only then did she realize that the Saudi court had tried her, together with Thamer and Allah, for what happened in Jakarta.  The court found plaintiff guilty of (1) adultery; (2) going to a disco, dancing and listening to the music in violation of Islamic laws; and (3) socializing with the male crew, in contravention of Islamic tradition.”[10]

Facing conviction, private respondent sought the help of her employer, petitioner SAUDIA.  Unfortunately, she was denied any assistance. She then asked the Philippine Embassy in Jeddah to help her while her case is on appeal.   Meanwhile, to pay for her upkeep, she worked on the domestic flight of SAUDIA, while Thamer and Allah continued to serve in the international flights.[11]

Because she was wrongfully convicted, the Prince of Makkah dismissed the case against her and allowed her to leave Saudi Arabia. Shortly before her return to Manila,[12] she was terminated from the service by SAUDIA, without her being informed of the cause.

On November 23, 1993, Morada filed a Complaint [13] for damages against SAUDIA, and Khaled Al-Balawi (“Al- Balawi”), its country manager.

On January 19, 1994, SAUDIA filed an Omnibus Motion To Dismiss [14] which raised the following grounds, to wit:  (1) that the Complaint states no cause of action against Saudia; (2) that defendant Al-Balawi is not a real party in interest; (3) that the claim or demand set forth in the Complaint has been waived, abandoned or otherwise extinguished; and (4) that the trial court has no jurisdiction to try the case.

On February 10, 1994, Morada filed her Opposition (To Motion to Dismiss) [15] Saudia filed a reply[16] thereto on March 3, 1994.

On June 23, 1994, Morada filed an Amended Complaint [17] wherein Al-Balawi was dropped as party defendant.  On August 11, 1994, Saudia filed its Manifestation and Motion to Dismiss Amended Complaint[18].

The trial court issued an Order [19] dated August 29, 1994 denying the Motion to Dismiss Amended Complaint filed by Saudia.

From the Order of respondent Judge[20] denying the Motion to Dismiss, SAUDIA filed on September 20, 1994, its Motion for Reconsideration [21] of the Order dated August 29, 1994.  It alleged that the trial court has no jurisdiction to hear and try the case on the basis of Article 21 of the Civil Code, since the proper law applicable is the law of the

Kingdom of Saudi Arabia.  On October 14, 1994, Morada filed her Opposition [22] (To Defendant’s Motion for Reconsideration).

In the Reply[23] filed with the trial court on October 24, 1994, SAUDIA alleged that since its Motion for Reconsideration raised lack of jurisdiction as its cause of action, the Omnibus Motion Rule does not apply, even if that ground is raised for the first time on appeal.  Additionally, SAUDIA alleged that the Philippines does not have any substantial interest in the prosecution of the instant case, and hence, without jurisdiction to adjudicate the same.

Respondent Judge subsequently issued another Order [24] dated February 2, 1995, denying SAUDIA’s Motion for Reconsideration.  The pertinent portion of the assailed Order reads as follows:

“Acting on the Motion for Reconsideration of defendant Saudi Arabian Airlines filed, thru counsel, on September 20, 1994, and the Opposition thereto of the plaintiff filed, thru counsel, on October 14, 1994, as well as the Reply therewith of defendant Saudi Arabian Airlines filed, thru counsel, on October 24, 1994, considering that a perusal of the plaintiff’s Amended Complaint, which is one for the recovery of actual, moral and exemplary damages plus attorney’s fees, upon the basis of the applicable Philippine law, Article 21 of the New Civil Code of the Philippines, is, clearly, within the jurisdiction of this Court as regards the subject matter, and there being nothing new of substance which might cause the reversal or modification of the order sought to be reconsidered, the motion for reconsideration of the defendant, is DENIED.

SO ORDERED.”[25]

Consequently, on February 20, 1995, SAUDIA filed its Petition for Certiorari and Prohibition with Prayer for Issuance of Writ of Preliminary Injunction and/or Temporary Restraining Order[26] with the Court of Appeals.

Respondent Court of Appeals promulgated a Resolution with Temporary Restraining Order[27] dated February 23, 1995, prohibiting the respondent Judge from further conducting any proceeding, unless otherwise directed, in the interim.

In another Resolution[28] promulgated on September 27, 1995, now assailed, the appellate court denied SAUDIA’s Petition for the Issuance of a Writ of Preliminary Injunction dated February 18, 1995, to wit:

“The Petition for the Issuance of a Writ of Preliminary Injunction is hereby DENIED, after considering the Answer, with Prayer to Deny Writ of Preliminary Injunction (Rollo, p. 135) the Reply and Rejoinder, it appearing that herein petitioner is not clearly entitled thereto (Unciano Paramedical College,   et. Al., v.   Court of Appeals,   et. Al. , 100335, April 7, 1993, Second Division).

SO ORDERED.”On October 20, 1995, SAUDIA filed with this Honorable Court the instant

Petition[29] for Review with Prayer for Temporary Restraining Order dated October 13, 1995.

However, during the pendency of the instant Petition, respondent Court of Appeals rendered the Decision[30] dated April 10, 1996, now also assailed.  It ruled that the Philippines is an appropriate forum considering that the Amended Complaint’s basis for recovery of damages is Article 21 of the Civil Code, and thus, clearly within the jurisdiction of respondent Court.  It further held that certiorari is not the proper remedy in a denial of a Motion to Dismiss, inasmuch as the petitioner should have proceeded to trial, and in case of an adverse ruling, find recourse in an appeal.

On May 7, 1996, SAUDIA filed its Supplemental Petition for Review with Prayer for Temporary Restraining Order[31] dated April 30, 1996, given due course by this Court.  After both parties submitted their Memoranda, [32] the instant case is now deemed submitted for decision.

Petitioner SAUDIA raised the following issues:“I

The trial court has no jurisdiction to hear and try Civil Case No. Q-93-18394 based on Article 21 of the New Civil Code since the proper law applicable is the law of the Kingdom of Saudi Arabia inasmuch as this case involves what is known in private international law as a ‘conflicts problem’.  Otherwise, the Republic of the Philippines will sit in judgment of the acts done by another sovereign state which is abhorred.

II.

Leave of court before filing a supplemental pleading is not a jurisdictional requirement.  Besides, the matter as to absence of leave of court is now moot and academic when this Honorable Court required the respondents to comment on petitioner’s April 30, 1996 Supplemental Petition For Review With Prayer For A Temporary Restraining Order Within Ten (10) Days From Notice Thereof.  Further, the Revised Rules of Court should be construed with liberality pursuant to Section 2, Rule 1 thereof.

III.

Petitioner received on April 22, 1996 the April 10, 1996 decision in CA-G.R. SP NO. 36533 entitled ‘Saudi Arabian Airlines v. Hon. Rodolfo A. Ortiz, et al.’ and filed its April 30, 1996 Supplemental Petition For Review With Prayer For A Temporary Restraining Order on May 7, 1996 at 10:29 a.m. or within the 15-day reglementary period as provided for under Section 1, Rule 45 of the

Revised Rules of Court.  Therefore, the decision in CA-G.R. SP NO. 36533 has not yet become final and executory and this Honorable Court can take cognizance of this case.”[33]

From the foregoing factual and procedural antecedents, the following issues emerge for our resolution:

I.

WHETHER RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT THE REGIONAL TRIAL COURT OF QUEZON CITY HAS JURISDICTION TO HEAR AND TRY CIVIL CASE NO. Q-93-18394 ENTITLED “MILAGROS P. MORADA V. SAUDI ARABIAN AIRLINES.”

II.

WHETHER RESPONDENT APPELLATE COURT ERRED IN RULING THAT IN THE CASE PHILIPPINE LAW SHOULD GOVERN.Petitioner SAUDIA claims that before us is a conflict of laws that must be settled at

the outset.  It maintains that private respondent’s claim for alleged abuse of rights occurred in the Kingdom of Saudi Arabia.  It alleges that the existence of a foreign element qualifies the instant case for the application of the law of the Kingdom of Saudi Arabia, by virtue of the lex loci delicti commissi rule.[34]

On the other hand, private respondent contends that since her Amended Complaint is based on Articles 19[35] and 21[36] of the Civil Code, then the instant case is properly a matter of domestic law.[37]

Under the factual antecedents obtaining in this case, there is no dispute that the interplay of events occurred in two states, the Philippines and Saudi Arabia.

As stated by private respondent in her Amended Complaint [38] dated June 23, 1994:

“2.     Defendant SAUDI ARABIAN AIRLINES or SAUDIA is a foreign airlines corporation doing business in the Philippines.  It may be served with summons and other court processes at Travel Wide Associated Sales (Phils.), Inc., 3 rd   Floor, Cougar Building, 114 Valero St., Salcedo Village, Makati, Metro Manila.

x x x     x x x                             x x x

6.      Plaintiff learned that, through the intercession of the Saudi Arabian government, the Indonesian authorities agreed to deport Thamer and Allah after two weeks of detention.  Eventually, they were again put in service by defendant SAUDIA.  In September 1990, defendant SAUDIA transferred plaintiff to Manila.

7.      On January 14, 1992, just when plaintiff thought that the Jakarta incident was already behind her, her superiors requested her to see MR. Ali Meniewy, Chief Legal Officer of SAUDIA, in Jeddah, Saudi Arabia.  When she saw him, he brought her to the police station where the police took her passport and questioned her about the Jakarta incident.  Miniewy simply stood by as the police put pressure on her to make a statement dropping the case against Thamer and Allah.  Not until she agreed to do so did the police return her passport and allowed her to catch the afternoon flight out of Jeddah.

8.      One year and a half later or on June 16, 1993, in Riyadh, Saudi Arabia, a few minutes before the departure of her flight to Manila, plaintiff was not allowed to board the plane and instead ordered to take a later flight to Jeddah to see Mr. Meniewy, the Chief Legal Officer of SAUDIA.  When she did, a certain Khalid of the SAUDIA office brought her to a Saudi court where she was asked to sign a document written in Arabic.  They told her that this was necessary to close the case against Thamer and Allah.  As it turned out, plaintiff signed a notice to her to appear before the court on June 27, 1993.  Plaintiff then returned to Manila.

9.      Shortly afterwards, defendant SAUDIA summoned plaintiff to report to Jeddah once again and see Miniewy on June 27, 1993 for further investigation.     Plaintiff did so after receiving assurance from SAUDIA’s Manila manager, Aslam Saleemi, that the investigation was routinary and that it posed no danger to her.

10.    In Jeddah, a SAUDIA legal officer brought plaintiff to the same Saudi court on June 27, 1993.  Nothing happened then but on June 28, 1993, a Saudi judge interrogated plaintiff through an interpreter about the Jakarta incident.  After one hour of interrogation, they let her go.  At the airport, however, just as her plane was about to take off, a SAUDIA officer told her that the airline had forbidden her to take that flight.  At the Inflight Service Office where she was told to go, the secretary of Mr. Yahya Saddick took away her passport and told her to remain in Jeddah, at the crew quarters, until further orders.

11.    On July 3, 1993 a SAUDIA legal officer again escorted plaintiff to the same court where the judge, to her astonishment and shock, rendered a decision, translated to her in English, sentencing her to five months imprisonment and to 286 lashes.  Only then did she realize that the Saudi court had tried her, together with Thamer and Allah, for what happened in Jakarta.  The court found plaintiff guilty of (1)

adultery; (2) going to a disco, dancing, and listening to the music in violation of Islamic laws; (3) socializing with the male crew, in contravention of Islamic tradition.

12.    Because SAUDIA refused to lend her a hand in the case, plaintiff sought the help of the Philippine Embassy in Jeddah.  The latter helped her pursue an appeal from the decision of the court.  To pay for her upkeep, she worked on the domestic flights of defendant SAUDIA while, ironically, Thamer and Allah freely served the international flights.”[39]

Where the factual antecedents satisfactorily establish the existence of a foreign element, we agree with petitioner that the problem herein could present a “conflicts” case.

A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states is said to contain a “foreign element”.  The presence of a foreign element is inevitable since social and economic affairs of individuals and associations are rarely confined to the geographic limits of their birth or conception. [40]

The forms in which this foreign element may appear are many. [41] The foreign element may simply consist in the fact that one of the parties to a contract is an alien or has a foreign domicile, or that a contract between nationals of one State involves properties situated in another State.  In other cases, the foreign element may assume a complex form.[42]

In the instant case, the foreign element consisted in the fact that private respondent Morada is a resident Philippine national, and that petitioner SAUDIA is a resident foreign corporation.  Also, by virtue of the employment of Morada with the petitioner Saudia as a flight stewardess, events did transpire during her many occasions of travel across national borders, particularly from Manila, Philippines to Jeddah, Saudi Arabia, and vice versa, that caused a “conflicts” situation to arise.

We thus find private respondent’s assertion that the case is purely domestic, imprecise.  A conflicts problem presents itself here, and the question of jurisdiction[43] confronts the court a quo.

After a careful study of the private respondent’s Amended Complaint, [44] and the Comment thereon, we note that she aptly predicated her cause of action on Articles 19 and 21 of the New Civil Code.

On one hand, Article 19 of the New Civil Code provides;

“Art. 19.  Every person must, in the exercise of his rights and in the performance of his duties, act with justice give everyone his due and observe honesty and good faith.”On the other hand, Article 21 of the New Civil Code provides:

“Art. 21.  Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages.”Thus, in Philippine National Bank (PNB) vs. Court of Appeals,[45] this Court held that:

“The aforecited provisions on human relations were intended to expand the concept of torts in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically provide in the statutes.”Although Article 19 merely declares a principle of law, Article 21 gives flesh to its

provisions.  Thus, we agree with private respondent’s assertion that violations of Articles 19 and 21 are actionable, with judicially enforceable remedies in the municipal forum.

Based on the allegations[46] in the Amended Complaint, read in the light of the Rules of Court on jurisdiction[47] we find that the Regional Trial Court (RTC) of Quezon City possesses jurisdiction over the subject matter of the suit. [48] Its authority to try and hear the case is provided for under Section 1 of Republic Act No. 7691, to wit:

“Section 1.  Section 19 of Batas Pambansa Blg. 129, otherwise known as the “Judiciary Reorganization Act of 1980”, is hereby amended to read as follows:

SEC. 19.  Jurisdiction in Civil Cases. – Regional Trial Courts shall exercise exclusive jurisdiction:

x x x                                         x x x                                  x x x

(8)  In all other cases in which demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs or the value of the property in controversy exceeds One hundred thousand pesos (P100,000.00) or, in such other cases in Metro Manila, where the demand, exclusive of the above-mentioned items exceeds Two hundred Thousand pesos (P200,000.00).  (Emphasis ours)

x x x                                         x x x                                  x x x

And following Section 2 (b), Rule 4 of the Revised Rules of Court—the venue, Quezon City, is appropriate:

“SEC. 2 Venue in Courts of First Instance. –[Now Regional Trial Court]

(a)  x x x        x x x     x x x

(b)  Personal actions. – All other actions may be commenced and tried where the defendant or any of the defendants resides or may be

found, or where the plaintiff or any of the plaintiff resides, at the election of the plaintiff.”Pragmatic considerations, including the convenience of the parties, also weigh

heavily in favor of the RTC Quezon City assuming jurisdiction.  Paramount is the private interest of the litigant.  Enforceability of a judgment if one is obtained is quite obvious.  Relative advantages and obstacles to a fair trial are equally important.  Plaintiff may not, by choice of an inconvenient forum, ‘vex’, ‘harass’, or ‘oppress’ the defendant, e.g. by inflicting upon him needless expense or disturbance.  But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. [49]

Weighing the relative claims of the parties, the court a quo found it best to hear the case in the Philippines.  Had it refused to take cognizance of the case, it would be forcing plaintiff (private respondent now) to seek remedial action elsewhere, i.e. in the Kingdom of Saudi Arabia where she no longer maintains substantial connections.   That would have caused  a fundamental unfairness to her.

Moreover, by hearing the case in the Philippines no unnecessary difficulties and inconvenience have been shown by either of the parties. The choice of forum of the plaintiff (now private respondent) should be upheld.

Similarly, the trial court also possesses jurisdiction over the persons of the parties herein.  By filing her Complaint and Amended Complaint with the trial court, private respondent has voluntary submitted herself to the jurisdiction of the court.

The records show that petitioner SAUDIA has filed several motions [50] praying for the dismissal of Morada’s Amended Complaint.  SAUDIA also filed an Answer In Ex Abundante Cautelam dated February 20, 1995.  What is very patent and explicit from the motions filed, is that SAUDIA prayed for other reliefs under the premises.  Undeniably, petitioner SAUDIA has effectively submitted to the trial court’s jurisdiction by praying for the dismissal of the Amended Complaint on grounds other than lack of jurisdiction.

As held by this Court in Republic vs. Ker and Company, Ltd.:[51]

“We observe that the motion to dismiss filed on April 14, 1962, aside from disputing the lower court’s jurisdiction over defendant’s person, prayed for dismissal of the complaint on the ground that plaintiff’s cause of action has prescribed.  By interposing such second ground in its motion to dismiss, Ker and Co., Ltd. availed of an affirmative defense on the basis of which it prayed the court to resolve controversy in its favor.  For the court to validly decide the said plea of defendant Ker & Co., Ltd., it necessarily had to acquire jurisdiction upon the latter’s person, who, being the proponent of the affirmative defense, should be deemed to have abandoned its special appearance and voluntarily submitted itself to the jurisdiction of the court.”

Similarly, the case of De Midgely vs. Ferandos, held that:

“When the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the person, it must be for the sole and separate purpose of objecting to the jurisdiction of the court.  If his motion is for any other purpose than to object to the jurisdiction of the court over his person, he thereby submits himself to the jurisdiction of the court.  A special appearance by motion made for the purpose of objecting to the jurisdiction of the court over the person will be held to be a general appearance, if the party in said motion should, for example, ask for a dismissal of the action upon the further ground that the court had no jurisdiction over the subject matter.”[52]

Clearly, petitioner had submitted to the jurisdiction of the Regional Trial Court of Quezon City.  Thus, we find that the trial court has jurisdiction over the case and that its exercise thereof, justified.

As to the choice of applicable law, we note that choice-of-law problems seek to answer two important questions:  (1)  What legal system should control a given situation where some of the significant facts occurred in two or more states; and (2) to what extent should the chosen legal system regulate the situation. [53]

Several theories have been propounded in order to identify the legal system that should ultimately control.  Although ideally, all choice-of-law theories should intrinsically advance both notions of justice and predictability, they do not always do so.   The forum is then faced with the problem of deciding which of these two important values should be stressed.[54]

Before a choice can be made, it is necessary for us to determine under what category a certain set of facts or rules fall.  This process is known as “characterization”, or the “doctrine of qualification”.  It is the “process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule.” [55] The purpose of  “characterization” is to enable the forum to select the proper law. [56]

Our starting point of analysis here is not a legal relation, but a factual situation, event, or operative fact.[57] An essential element of conflict rules is the indication of a “test” or “connecting factor” or “point of contact”.  Choice-of-law rules invariably consist of a factual relationship (such as property right, contract claim) and a connecting factor or point of contact, such as the situs of the res, the place of celebration, the place of performance, or the place of wrongdoing. [58]

Note that one or more circumstances may be present to serve as the possible test for the determination of the applicable law. [59] These “test factors” or “points of contact” or “connecting factors” could be any of the following:

“(1)  The nationality of a person, his domicile, his residence, his place of sojourn, or his origin;

(2)  the seat of a legal or juridical person, such as a corporation;

(3) the situs of a thing, that is, the place where a thing is, or is deemed to be situated.  In particular, the lex situs is decisive when real rights are involved;

(4) the place where an act has been done, the   locus actus , such as the place where a contract has been made, a marriage celebrated, a will signed or a tort committed.     The   lex loci actus   is particularly important in contracts and torts;(5) the place where an act is intended to come into effect, e.g., the place of performance of contractual duties, or the place where a power of attorney is to be exercised;

(6) the intention of the contracting parties as to the law that should govern their agreement, the lex loci intentionis;

(7) the place where judicial or administrative proceedings are instituted or done.  The lex fori—the law of the forum—is particularly important because, as we have seen earlier, matters of ‘procedure’ not going to the substance of the claim involved are governed by it; and because the lex fori applies whenever the content of the otherwise applicable foreign law is excluded from application in a given case for the reason that it falls under one of the exceptions to the applications of foreign law; and(8) the flag of a ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers contractual relationships particularly contracts of affreightment.”[60] (Underscoring ours.)

After a careful study of the pleadings on record, including allegations in the Amended Complaint deemed submitted for purposes of the motion to dismiss, we are convinced that there is reasonable basis for private respondent’s assertion that although she was already working in Manila, petitioner brought her to Jeddah on the pretense that she would merely testify in an investigation of the charges she made against the two SAUDIA crew members for the attack on her person while they were in Jakarta.  As it turned out, she was the one made to face trial for very serious charges, including adultery and violation of Islamic laws and tradition.

There is likewise logical basis on record for the claim that the “handing over” or “turning over” of the person of private respondent to Jeddah officials, petitioner may have acted beyond its duties as employer.  Petitioner’s purported act contributed to and amplified or even proximately caused additional humiliation, misery and suffering of private respondent.  Petitioner thereby allegedly facilitated the arrest, detention and prosecution of private respondent under the guise of petitioner’s authority as employer, taking advantage of the trust, confidence and faith she reposed upon it.  As purportedly found by the Prince of Makkah, the alleged conviction and imprisonment of private

respondent was wrongful. But these capped the injury or harm allegedly inflicted upon her person and reputation, for which petitioner could be liable as claimed, to provide compensation or redress for the wrongs done, once duly proven.

Considering that the complaint in the court a quo is one involving torts, the “connecting factor” or “point of contact” could be the place or places where the tortious conduct or lex loci actus occurred.  And applying the torts principle in a conflicts case, we find that the Philippines could be said as a situs of the tort (the place where the alleged tortious conduct took place).  This is because it is in the Philippines where petitioner allegedly deceived private respondent, a Filipina residing and working here.  According to her, she had honestly believed that petitioner would, in the exercise of its rights and in the performance of its duties, “act with justice, give her her due and observe honesty and good faith.”  Instead, petitioner failed to protect her, she claimed.  That certain acts or parts of the injury allegedly occurred in another country is of no moment.  For in our view what is important here is the place where the over-all harm or the fatality of the alleged injury to the person, reputation, social standing and human rights of complainant, had lodged, according to the plaintiff below (herein private respondent).  All told, it is not without basis to identify the Philippines as the situs of the alleged tort.

Moreover, with the widespread criticism of the traditional rule of lex loci delicti commissi, modern theories and rules on tort liability [61] have been advanced to offer fresh judicial approaches to arrive at just results.  In keeping abreast with the  modern theories on tort liability, we find here an occasion to apply the “State of the most significant relationship” rule, which in our view should be appropriate to apply now, given the factual context of this case.

In applying said principle to determine the State which has the most significant relationship, the following contacts are to be taken into account and evaluated according to their relative importance with respect to the particular issue: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.[62]

As already discussed, there is basis for the claim that over-all injury occurred and lodged in the Philippines.  There is likewise no question that private respondent is a resident Filipina national, working with petitioner, a resident foreign corporation engaged here in the business of international air carriage.  Thus, the “relationship” between the parties was centered here, although it should be stressed that this suit is not based on mere labor law violations.  From the record, the claim that the Philippines has the most significant contact with the matter in this dispute, [63] raised by private respondent as plaintiff below against defendant (herein petitioner), in our view, has been properly established.

Prescinding from this premise that the Philippines is the situs of the tort complaint of and the place “having the most interest in the problem”, we find, by way of recapitulation, that the Philippine law on tort liability should have paramount application to and control in the resolution of the legal issues arising out of this case.  Further, we

hold that the respondent Regional Trial Court has jurisdiction over the parties and the subject matter of the complaint; the appropriate venue is in Quezon City, which could properly apply Philippine law.  Moreover, we find untenable petitioner’s insistence that “[s]ince private respondent instituted this suit, she has the burden of pleading and proving the applicable Saudi law on the matter.” [64] As aptly said by private respondent, she has “no obligation to plead and prove the law of the Kingdom of Saudi Arabia since her cause of action is based on Articles 19 and 21” of the Civil Code of the Philippines.  In her Amended Complaint and subsequent pleadings she never alleged that Saudi law should govern this case. [65] And as correctly held by the respondent appellate court, “considering  that it was the petitioner who was invoking the applicability of the law of Saudi Arabia, thus the burden was on it [petitioner] to plead and to establish what the law of Saudi Arabia is”. [66]

Lastly, no error could be imputed to the respondent appellate court in upholding the trial court’s denial of defendant’s (herein petitioner’s) motion to dismiss the case.  Not only was jurisdiction in order and venue properly laid, but appeal after trial was obviously available, and the expeditious trial itself indicated by the nature of the case at hand.  Indubitably, the Philippines is the state intimately concerned with the ultimate outcome of the case below not just for the benefit of all the litigants, but also for the vindication of the country’s system of law and justice in a transnational setting.  With these guidelines in mind, the trial court must proceed to try and adjudge the case in the light of relevant Philippine law, with due consideration of the foreign element or elements involved.  Nothing said herein, of course, should be construed as prejudging the results of the case in any manner whatsoever.

WHEREFORE, the instant petition for certiorari is hereby DISMISSED.  Civil Case No. Q-93-18394 entitled “Milagros P. Morada vs. Saudi Arabia Airlines” is hereby REMANDED to Regional Trial Court of Quezon City, Branch 89 for further proceedings.

SO ORDERED.

U.S. Supreme CourtNorthern Pacific R. Co. v. Babcock, 154 U.S. 190 (1894)

Northern Pacific R. Co. v. Babcock

No. 328

Submitted March 28, 1894

Decided May 28, 1894

154 U.S. 190

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF MINNESOTA

Syllabus

In an action by the representatives of a railroad employee against the company to recover damages for the death of the employs caused by an accident while in its employ, which is tried in a different state from that in which the contract of employment was made and in which the accident took place, the right to recover and the limit of the amount of the judgment are governed by the lex loci, and not by the lex fori.

A railroad company is bound to furnish sound machinery for the use of its employee, and if one of them is killed in an accident caused by a defective snow-plough, the right of his representative to recover damages therefor is not affected by the fact that, some two weeks before he was sent out with the defective machinery, he had discovered the defect, and had notified the master mechanic of it, and the latter had undertaken to have it repaired.

Some alleged errors in the charge of the court below are examined and held to have no merit.

The plaintiff below, who was the administrator of the estate of Hugh M. Munro, sued in the District Court of the fourth Judicial District of Minnesota to recover $25,000 damages for the killing of Munro on the 10th day of January, 1888 at or near a station known as Gray Cliff, on the Northern Pacific Railway, in the Territory of Montana. The complaint contained the following allegations:

Page 154 U. S. 191

"That on the said 10th day of January, 1888, the said Hugh M. Munro, now deceased, was in the employ of the said defendant corporation within the Territory of Montana in the capacity of locomotive engineer, for hire and reward by the said defendant paid, and that the duty of running a locomotive engine upon said defendant's line of railway within said territory was by said defendant assigned to said Hugh M. Munro on the said 10th day of January, 1888, and the defendant directed and ordered the said Hugh M. Munro to run a certain locomotive engine, the property of said defendant, known as engine 'No. 161,' over and upon its said railway in said territory; that prior to and at the time the said orders were so presented to said Munro, there had been, and then was, a severe snowstorm in progress, and defendant's line of railway over and upon which said Munro was so ordered to run said engine was covered with drifting snow theretofore accumulated thereon, and then fast accumulating, notwithstanding which the said defendant corporation did willfully, improperly, negligently, and carelessly refuse and neglect to send a snow plow ahead of said engine No. 161 to clear the snow and ice from said defendant's said track, which had accumulated and was accumulating thereon by reason of said storm, so as to render the passage of said engine No. 161 safe and proper."

"That there was attached to the forward part of said engine No. 161 a certain attachment known as a 'pilot plow,' an appliance constructed thereon for the purpose of clearing the railway of snow and ice accumulated thereon and render safe the passage of the engine to which said plow was attached over and upon said railway of defendant."

"That on the said 10th day of January, 1888, the said defendant corporation knowingly, willfully, negligently, and carelessly allowed to be and remain upon said engine No. 161, attached thereto as aforesaid, a certain pilot plow the iron braces, bolts, and rods of which were broken, imperfect, and insufficient, by reason of which condition the said plow was loose and insufficiently secured to the pilot of said engine, allowing the said pilot to raise up and ride over obstructing

Page 154 U. S. 192

snow and ice instead of cutting through the same, as was the intention of its construction, rendering the running of said engine upon said railway dangerous, and that the said defendant well knew of the broken, defective, and dangerous condition of said engine No. 161 at the time the said Hugh M. Munro was so ordered to run the same upon and over said railway, notwithstanding which the said defendant corporation did

negligently and carelessly furnish to said Hugh M. Munro said engine, with the said broken and imperfect pilot plow attached thereto, to run over and upon its said line of railway."

"That while said Hugh M. Munro was running said engine in performance of his duty as such engineer and pursuant to the orders of said defendant corporation, and before daylight on said 10th day of January, 1888, near Gray Cliff, in said Territory of Montana, the said engine struck an accumulation of snow and ice which said defendant had carelessly and negligently allowed to accumulate upon its said railway track, and the pilot plow of said engine, by reason of its broken, loose, and imperfect condition aforesaid, did ride upon said accumulation of snow and ice, thereby derailing said engine and throwing the same from said railway track, whereby the said Hugh M. Munro was instantly killed."

"* * * *"

"That the law of the Territory of Montana governing actions for recovery of damages for causing death was on the 10th day of January, 1888, and now is, sections 13 and 14 of title 2 of said chapter 1 of the first division of Code of Civil Procedure of the Territory of Montana, which said sections of said law of said territory are in the words and figures following, viz.:"

"SEC. 13. A father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child, or a guardian for the injury or death of his ward."

"SEC. 14. Where the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for

Page 154 U. S. 193

damages against the person causing the death, or if such person be employed by another person who is responsible for his action, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just."

The case was removed to the Circuit Court of the United States for the District of Minnesota, where an answer was filed by the defendant denying the averments of the complaint and alleging that the death of Munro was caused solely by his negligence and

carelessness, and not by the negligence of the defendant or any of its servants or employees.

There was a verdict and judgment below in favor of the plaintiff for $10,000. To review that judgment, this writ of error is sued out. The errors assigned are as follows:

"First. The court erred in charging the jury as follows:"

" Did it fail to discharge any duty which the law imposed upon it for the safety of its employee, the plaintiff's intestate? If it did, and if such negligence was the cause of the death of the engineer, Munro, then the plaintiff is entitled to recover."

"Second. The court erred further in charging the jury as follows:"

" The charge in this complaint is that this death was caused by the derailment of the engine, which took place because the plow was out of repair as described, or at least that the defendant had not used reasonable care in clearing its track, and that when the engineer, in that condition, arrived at this cut, two miles from Gray Cliff, the snow had accumulated to such an extent that the engine was thereby derailed, and that it was this negligence which caused the death."

"Third. The court erred further in charging the jury as follows:"

"Many states have different laws. The law in this state until recently was that only $5,000 could be given in a case of death. It has lately been increased to $10,000."

"Fourth. The court erred further in charging the jury as follows:"

"If you believe from all the evidence in the case that the plaintiff is entitled to recovery, then it is for you to determine what compensation you will give for the death of the plaintiff's intestate. The law of Montana limits it to such an amount as you think would be proper under all circumstances

Page 154 U. S. 194

of the case, and that is the law which will govern in this case."

"Fifth. The court erred further in refusing to give to the jury the following request tendered by defendant's counsel: 'You, the jury, are instructed to find a verdict for the defendant.'"

"Sixth. The court erred further in refusing to give to the jury the following request, tendered by defendant's counsel: 'The laws of Minnesota limit the amount of damages to be recovered in this case to five thousand dollars.'"

"Seventh. The court erred further in refusing to give to the jury the following request, tendered by defendant's counsel:"

" The court instructs the jury that unless they find that it was customary for defendant company to send a snow plow in advance of the trains running east from Livingston during storms of this character, and that unless, further, the accident occurred by reason of the negligent and careless failure of the defendant to send such snow plow in advance, they will find for the defendant."

"Eighth. The court erred further in refusing to give to the jury the following request, tendered by defendant's counsel:"

" The court instructs the jury that unless they find that the defendant carelessly and negligently furnished to the deceased engineer a plow attached to his engine the iron bolts and rods of which were broken, imperfect, and insufficient, and that by reason of which condition the said plow was loose and insufficiently secured to the pilot of said engine, and that when the said engine struck the snow at the cut, as testified to, the pilot plow of said engine, by reason of its said broken, loose, and imperfect condition, did ride upon the accumulated snow and ice at said cut, and that thereby the said engine was thrown from the track, the jury will find for the defendant. "

Page 154 U. S. 196

MR. JUSTICE WHITE, after stating the case, delivered the opinion of the Court.

For convenience, we shall consider the various assignments of error without regard to their numerical order.

The third, fourth, and sixth assignments involve the same question, and may be decided upon together.

The plaintiff's intestate was an engineer in the employ of the defendant corporation in the Territory of Montana, and the accident by which he lost his life occurred there. The law of the Territory of Montana at the time provided as follows:

"Where the death of a person not being a minor is caused by the wrongful act or neglect of another his heirs or personal representatives may maintain an action for damages

against the person causing the death, or if such person be employed by another person who is responsible for his action, then also

Page 154 U. S. 197

against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just."

Section 14, Title II, Chapter I, first division of the Code of Civil Procedure of the Territory of Montana.

Under the law of Minnesota, when the death occurred, the limit of recovery in case of death was $5,000, but at the time of the trial of the case in the court below, this limit had been increased to $10,000 by amendment of the Minnesota statutes.

The question which those assignments of errors present is was the amount of damage to be controlled by the law of the place of employment and where the accident occurred, or by the law of the forum in which the suit was pending? In the case of Herrick v. Minneapolis & St. Louis Railway Company, reported in 31 Minn. 11, which involved the question of whether the courts of Minnesota would enforce and apply to a suit in that state, for a cause of action originating in Iowa, a law of the State of Iowa making railroad corporations liable for damages sustained by its employees in consequence of the neglect of fellow servants, the court said:

"The statute of another state has, of course, no extraterritorial force, but rights acquired under it will always, in comity, be enforced if not against the public policy of the laws of the former. In such cases, the law of the place where the right was acquired or the liability was incurred will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought. And we think the principle is the same whether the right of action be ex contractu or ex delicto."

"The defendant admits the general rule to be as thus stated, but contends that as to statutory actions like the present, it is subject to the qualification that to sustain the action, the law of the forum and the law of the place where the right of action accrued must concur in holding that the act done gives a right of action. We admit that some text writers -- notably, Rorer on Interstate Law -- seem to lay

Page 154 U. S. 198

down this rule, but the authorities cited generally fail to sustain it."

"* * * *"

"But it by no means follows that because the statute of one state differs from the law of another state, therefore it would be held contrary to the policy of the laws of the latter state. Every day our courts are enforcing rights under foreign contracts where the lex loci contractus and the lex fori are altogether different, and yet we construe these contracts and enforce rights under them according to their force and effect under the laws of the state where made. To justify a court in refusing to enforce a right of action which accrued under the law of another state because against the policy of our laws, it must appear that it is against good morals or natural justice or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens. If the State of Iowa sees fit to impose this obligation upon those operating railroads within her bounds, and to make it a condition of the employment of those who enter their service, we see nothing in such a law repugnant either to good morals or natural justice or prejudicial to the interests of our own citizens."

This opinion of the Supreme Court of Minnesota is in accord with the rule announced by Chief Justice Marshall in The Antelope, 10 Wheat. 66. In referring to that case in Pacific Railway v. Cox, 145 U. S. 593, the Court said:

"The courts of no country execute the penal laws of another. But we have held that that rule cannot be invoked as applied to a statute of this kind, which merely authorizes a civil action to recover damages for a civil injury."

The rule thus enunciated had been adopted in previous cases, and has since been approved by this Court. Smith v. Condry, 1 How. 28; The China, 7 Wall. 53, 74 U. S. 64; Dennick v. Railroad Co., 103 U. S. 11; The Scotland, 105 U. S. 24, 105 U. S. 29;Huntington v. Attrill, 146 U. S. 670. Indeed, in Railroad Co. v. Cox, supra, MR. CHIEF JUSTICE FULLER, speaking for the Court, said "The question, however, is one of general law, and we regard it as settled in Dennick v. Railroad Co."

Page 154 U. S. 199

The contract of employment was made in Montana, and the accident occurred in that state, while the suit was brought in Minnesota. We think there was no error in holding that the right to recover was governed by the lex loci, and not by the lex fori.

The fifth error assigned is the refusal to instruct the jury to find a verdict for the defendant.

The evidence tended to show that Munro was an engineer in the employ of the railroad company at the Town of Livingston; that, as such engineer, he was driving engine No. 161 sometime in the latter part of December; that while driving the engine, he discovered that an appliance known as the "pilot plow," which was attached to the engine, was out of order and in a dangerous condition. The purpose of such a plow is to push the snow from the track, and if not properly braced, as stated by one of the witnesses, it is likely to "rise up, and ride over the drift instead of going through it, and the natural result would be to throw the engine trucks from the tracks." After Munro discovered that the plow was defective, he called the attention of the foreman of the shop and master mechanic to its condition. On or about the second of January, Munro was taken sick, and did not pursue his occupation until January 9th, when he reported for duty. At about 12 o'clock that night, while a severe snowstorm was raging, Munro was sent for by messenger to take out a passenger train. The train was delayed in getting away from Livingston, and left that place about two o'clock in the morning, drawn by engine No. 161, with Munro in charge as engineer. At a place called Gray Cliff, the engine, in passing through a cut, capsized and Munro was killed.

There was no conflict of evidence as to the fact that the plow was defective some two weeks before the accident, when Munro so stated to the foreman and master mechanic, but there was a conflict upon the question whether or not it had been subsequently repaired. Testimony was adduced by the plaintiff tending to show that the necessary repairs had not been made, and that at midnight on the 9th, when the engineer was called upon to take charge of the engine, the condition

Page 154 U. S. 200

of the plow was quite as defective as it had been some two weeks before, when the engineer had made his report of its condition to the foreman. On the other hand, the defendant offered testimony which tended to show that the repairs had been made. It was proven that at the time Munro was called upon to take charge of the engine on the night of the 9th, the roundhouse was so full of steam that the engine could not have been critically examined by him. The presence of this steam was due to the fact that there was no heating apparatus in the roundhouse, and therefore steam was allowed to escape therein in order to prevent the engines from freezing. There was some evidence that the effect of the defective pilot plow would be to throw the train from the track whenever the engine struck an accumulation of snow which had been in any way impacted, the resistance of the snow having the effect of pushing the defective plow up

and thus derailing the engine. On the other hand, there was other evidence that such a result could not have followed from the defect in the plow.

Under this condition of proof, it is clear that the instruction was rightfully refused. The obligation of the employer to furnish to his employee sound implements is established.Hough v. Railway Co., 100 U. S. 213, 100 U. S. 218; Union Pacific Railway Co. v. Snyder, 152 U. S. 684. And the fact that the engineer, when called upon at midnight on the 9th to perform duty, took the engine out under the conditions surrounding it in the roundhouse implies no assumption by him of the risk of defective machinery. The proof showed, or tended to show, that notification by the engineer to the foreman and master mechanic of the existence of the defect was given some ten or twelve days before the accident, and that at the time there was an impression created in Munro's mind that it was to be remedied. It also shows that work of this character was usually done in the shops at Livingston, over which the foreman presided and in which the engine lay when the notice was given. From the time of the notice up to the time when the engineer was called upon to use the engine, he was not on duty, but was absent on sick leave. As the employee had

Page 154 U. S. 201

given notice of the defect to the proper officer whose duty it was to make the repairs, and the impression had been conveyed to him that these would be made, he had a right to assume that they had been made, and to act upon that assumption. The mere fact of his taking the engine out at midnight, under the circumstances, did not of itself, unsupported by other proof, imply an assumption by him of the risk resulting from the dangerous and defective condition of the attachment to the engine. Hough v. Railway Co., 100 U. S. 225.

The first assignment of error is, we think, without merit. The language of the charge complained of is:

"Did it [the defendant company] fail to discharge any duty which the law imposed upon it for the safety of its employee, the plaintiff's intestate? If it did, and if such negligence was the cause of the death of the engineer, Munro, then the plaintiff is entitled to recover."

Separated from the context, this general language might have misled, but when considered in proper connection with the rest of the instruction given, it could not have done so.

The eighth error assigned was to a refusal of the court to give the following charge:

"The court instructs the jury that unless they find that the defendant carelessly and negligently furnished to the deceased engineer a plow attached to his engine the iron bolts and rods of which were broken, imperfect, and insufficient, and that by reason of which condition, the said plow was loose and insufficiently secured to the pilot of said engine, and that when the said engine struck the snow at the cut, as testified to, the pilot plow of said engine, by reason of its said broken, loose, and imperfect condition did ride upon the accumulated snow and ice at said cut, and that thereby the said engine was thrown from the track, the jury will find for the defendant."

The charge which the court gave was substantially as requested, and correctly stated the law. It was as follows:

"The court instructs you that unless you find that the defendant negligently and carelessly furnished to the deceased engineer a plow attached to his engine, the iron bolts and rods of which were broken,

Page 154 U. S. 202

imperfect, and insufficient, and by reason of said imperfect condition, when the engine struck the snow at the cut, as testified to, the engine and tender were derailed by reason thereof, which caused the accident in question, then the defendant would be entitled to a verdict. The claim is that the snow had accumulated to such an extent in that cut that when the engine struck it, the plow being in the condition in which it was, it was unable to clear the track, the accumulation of snow being so great, and that, as described by some witnesses, it rode up, and threw the engine off the track from the fact that the front trucks of the engine could not ride over it. I instruct you that unless the cause of this derailment and the throwing over of the engine was the imperfect condition of this plow -- that it could not clear the cut from the snow which had accumulated there, but the engine was thrown over, and thereby death ensued -- unless this is found to be true to the satisfaction of the jury, the defendant would be entitled to a verdict."

We can see no material variance between the charge requested and the charge which was given.

The seventh error assigned is to the refusal of the court to instruct the jury

"that unless they find that it was customary for defendant company to send a snow plow in advance of the trains running east from Livingston during storms of this character, and that unless, further, the accident occurred by reason of the negligent and careless failure of the defendant to send such snow plow in advance, they will find for the defendant."

This instruction was, of course, justly refused because it implied that the defendant was entitled to a verdict unless, contrary to its custom, it had not sent a snow plow in advance of the train, without reference to the defective condition of the pilot plow, which was the cause of action upon which the plaintiff relied. Indeed, although the complaint charged negligence on the part of the defendant in failing to send a snow plow ahead of the train, the action, as stated in the complaint, was predicated upon the defect in the machinery, or pilot plow, the failure to send the snow plow being alleged as a mere incident, or remote cause of damage. And this distinction was elucidated

Page 154 U. S. 203

with great clearness in the charge of the court. It nowhere indicated that there could be any liability on the part of the defendant arising from the failure to send a snow plow ahead of the train, as a distinct and substantive cause of action. It referred to the failure to send a snow plow ahead of the train merely as the reason why it was necessary to have the pilot plow attached to the engine. The court said:

"The charge in this complaint is that this death was caused by the derailment of the engine, which took place because the plow was out of repair as described, or at least that the defendant had not used reasonable care in clearing its tracks, and that when the engineer, with the engine in that condition, arrived at this cut, two miles from Grey Cliff, the snow had accumulated to such an extent that the engine was thereby derailed, and that it was this negligence on the part of the defendant that caused the death."

In other words, throughout the whole charge, the court instructed the jury that the liability, if any, must result from the defective condition of the machinery or pilot plow of the engine, and where it referred to the failure to send a snow plow ahead of the train as an act of negligence, treated it as negligence giving rise only remotely, and not proximately, to the injury, the proximate cause being the defective machinery, and the remote the accumulation of snow which rendered the use of the engine unsafe because of the defect in the pilot plow attached thereto.

Judgment affirmed.

MR. JUSTICE JACKSON, not having heard the argument, took no part in the decision of this cause.

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