158 F. 144 (D.N.J. 1908), Crosby v. Cuba R. Co.

Citation:158 F. 144
Party Name:CROSBY v. CUBA R. CO.
Case Date:January 02, 1908
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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158 F. 144 (D.N.J. 1908)




United States Circuit Court, D. New Jersey.

January 2, 1908

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Benjamin M. Weinberg, for plaintiff.

Howard Mansfield, Henry De Forest Baldwin, and Charles E. Miller, for defendant.

LANNING, District Judge.

The plaintiff in his declaration avers that on June 16, 1906, he was an employe of the defendant in its planing mill in the republic of Cuba; that the mill was furnished with an imperfect and defective steam engine; that on the date above mentioned the engine 'ran away,' thereby putting a severe strain upon the shafting and pulleys with which it was connected, and causing the pulleys to break and fly apart, and that one of the broken parts struck and injured the plaintiff's right hand so that it had to be amputated. He claims damages for the injury thus sustained, charging the defendant with negligence in supplying the mill with an imperfect and defective engine. The only plea filed is that of the general issue.

In the first place, the defendant insists that the court should set aside the verdict and dismiss the action because the plaintiff has neither alleged nor proven that under the law of Cuba he acquired any right of action against the defendant. Courts do not take judicial knowledge of foreign laws. When necessary to be considered, they must be proven as facts in the case. In Chartered Mercantile Bank of India v Netherlands India Steam Navigation Co., 10 Q.B.Div. 521, Lord Justice Brett, at page 536, in referring to the case of The M. Moxam, said:

'In that case, whatever the cause of action was, it arose entirely in Spain, and the action was an action in tort; and the well-known rule applies that for any tort committed in a foreign country within its own exclusive jurisdiction an action of tort cannot be maintained in this country unless the cause of action would be a cause of action in that country, and also would be a cause of action in this country. Both must combine if the tort alleged was committed within the exclusive jurisdiction of a foreign country.'

The same rule is expressed by Dicey in his work on Conflict of Laws, p. 659. In Scott v. Lord Seymour, 1 H. & C. 219, and 1 English Ruling Cases, 533, Wightman, J., declared that since the case of Mostyn v Fabrigas, Cowp. 161 (copiously annotated in 1 Smith's Leading Cases (8th American Ed.) p. 1027), he was not aware of any rule of law that would disable a British subject from maintaining an action in England for damages against another British subject for assault and battery committed by him in a foreign country merely because no damages for such trespass were recoverable by the law of that foreign country, and without any allegation that such trespass was lawful or justifiable in that country. 'By the law of England,' said he, 'an action to recover damages for assault and battery is maintainable; and whatever may be the case as between two

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Neapolitan subjects, or between a Neapolitan and an Englishman, I find no authority for holding, even if the Neapolitan law gives no remedy for assault and battery, however violent and unprovoked, for recovery of damages, that therefore, a British subject is deprived of his right. ' Justices Williams and Crompton, however, expressly refrained from stating any opinion upon the point, for the reason that it was not necessary to the determination of the case, and Justice Blackburn expressed his doubt whether the rule had been correctly stated by Justice Wightman. Dicey, at page 662 of his work above referred to, says:

'It is hard to see why an Italian or an Englishman who assaults either an Italian subject or a British subject at Naples, and does not thereby incur, under the law of Italy, liability to the payment of damages, should become liable to pay them when an action is brought against him in England. Italian law imposes no such liability; and English law does not extend to Italy.'

An action brought in one of our states for damages resulting from a common-law tort committed in another of our states may doubtless be maintained without proof of the lex loci; but, where an action to recover damages for a wrongful act committed in another state is maintainable solely under some statutory authority of that state, and not under the common law, there the statutes of the state conferring the right of action must be both pleaded and proven by him who asserts the right. See Wooden v. W.N.Y. & P.R.R. Co., 126 N.Y. 10, 26 N.E. 1050, 13 L.R.A. 458, 22 Am.St.Rep. 803, and Keep v. National Tube Co. (C.C.) 154 Fed 121. In the present case the right of action is not based on any statute of Cuba, and the defendant insists that the common law cannot be presumed to exist in Cuba, inasmuch as that country was formerly a Spanish colony. But, as above stated, the defendant has filed the plea of the general issue only. The declaration alleges what, according to the lex fori, is actionable negligence on the part of the defendant. The defendant by pleading the general issue has not denied the legal sufficiency of the allegations of the declaration. If the lex loci delicti does not give to the plaintiff a right of action, that defense should have been presented by a special plea, and supported by proofs offered by the defendant. I do not think it was obligatory on the part of the plaintiff to set forth in his declaration in express terms what the special law of the republic of Cuba on the subject of actionable negligence may be. He had the right to set forth a cause of action which, according to the law of the forum, would be complete, and, in the event of a conflict between the lex loci and the lex fori, the defendant ought to have shown by a proper plea that, under the lex loci, the plaintiff acquired no right of action.

In Scott v. Lord Seymour, supra, the declaration alleged that the defendant assaulted and imprisoned the plaintiff. The defendant pleaded, first, that the trespasses were committed at Naples, out of the jurisdiction of the court, and that, according to the law of Naples, the defendant was not liable to be sued by the plaintiff in any other civil action or other proceedings to recover damages for the alleged trespass. The second plea was to the effect that the trespasses were committed at Naples; that penal proceedings had been taken there; that

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by the law of Naples the plaintiff could not recover damages in a civil action, or other proceeding in respect of the trespasses until the defendant had been condemned and found guilty of those trespasses; that at the time of the commencement of the suit the proceedings in Naples were still pending and undetermined; and that the defendant had not been condemned or found guilty of the trespasses or any part thereof. On a demurrer to the pleas they were held to be insufficient. Mr. Justice Wightman, concerning the first of these pleas, said:

'My learned Brethren are of opinion that the plea does not contain any averment that damages might not be recovered by the law of Naples for the alleged trespass in some form of proceeding or other, and that it may be taken as against the defendant in the action that the pleas admit that they might be recovered; and that, if that be so, the question is one of procedure merely and governed by the lex fori, and that there is nothing to oust the jurisdiction of an English court to entertain an action to recover damages in such a case. I agree with the rest of the court, if the construction of the first plea is that which they suggest.'

It will be observed that it was not suggested that it was the duty of the plaintiff to allege and prove the lex loci; that is, the law of Naples. That seems to have been regarded as matter of defense to be averred and proven by the defendant. It is a well-settled rule of pleading that, if a court has not general jurisdiction of the subject-matter of an action instituted before it, the defendant ought to plead to the jurisdiction, and that he cannot take advantage of it upon the general issue. It was so declared by Lord Mansfield in the leading case of Mostyn v. Fabrigas, supra.

In Dainese v. Hale, 91 U.S. 13, 23 L.Ed. 190, it appears that an action ex delicto was brought in the Supreme Court of the District of Columbia to recover the value of chattels which the defendant, as consul general of the United States in Egypt, there caused to be attached. The defendant pleaded that as such consul general he was invested with judicial functions and power in the case, and that in the exercise of those functions he took cognizance of the cause referred to in the declaration, and issued the attachment complained of. To this plea there was a general demurrer. The demurrer was overruled. The parties to the action before the consul general were all citizens of the United States. Mr. Justice Bradley, after reviewing the acts and treaties relevant to the questions involved, and after reaching the conclusion that under those acts and treaties the consul general had such jurisdiction in civil causes between citizens of the United States as was permitted by the laws of Turkey, or its usages in its intercourse with other Christian...

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