170 F. 369 (3rd Cir. 1909), 19-1908, Cuba R. Co. v. Crosby

Docket Nº:19-1908.
Citation:170 F. 369
Party Name:CUBA R. CO. v. CROSBY.
Case Date:May 15, 1909
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 369

170 F. 369 (3rd Cir. 1909)

CUBA R. CO.

v.

CROSBY.

No. 19-1908.

United States Court of Appeals, Third Circuit.

May 15, 1909

Dissenting opinion, May 17, 1909.

Howard Mansfield, for plaintiff in error.

Benjamin M. Weinberg, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and ARCHBALD, District Judge.

ARCHBALD, District Judge.

The plaintiff is a citizen of Tennessee, and the defendant a corporation and citizen of New Jersey, in the Circuit Court of which this suit was brought. The action is for personal injuries received by the plaintiff while at work for the defendant in the capacity of stationary engineer in a planing mill, in the Island of Cuba. The negligence charged is the failure to provide reasonably safe machinery and appliances; and the defense set up, in addition to denying the charge so made, was that the negligence, if any, was that of a fellow servant, or, if there was a defect in the machinery, that it was obvious, and the plaintiff therefore assumed the risk. The parties went to trial on these familiar issues, and the jury gave a verdict for $6,000, on which judgment was duly entered, a motion for a new trial being overruled.

The complaint here is that the court should have directed a verdict; the law of Cuba on the subject of negligence and the relative duties of master and servant not having been shown, the plaintiff, as it is claimed, being called upon to allege and prove what that

Page 370

law was, in order to make out a case. To this we are unable to agree. The cause of action is not one unknown to the common law, and so dependent upon statute, as in the case of negligence causing death. Neither is it, as in Slater v. Mexican Nat. R.R., 194 U.S. 120, 24 Sup.Ct. 581, 48 L.Ed. 900, expressly brought to enforce a liability of that character arising abroad, the foreign statute-- that of Mexico-- being declared on and proved, and the damages, by way of annuity or pension thereby given, being sued for and claimed. It may be conceded, also, that, having arisen in a foreign state, it is to be decided according to the law which there prevails, once it has been proved. But the question here is whether, a case having been established in all respects consonant with our ideas of right and justice, by which the plaintiff is thereby entitled to recover, according to the law as we understand it, we must stay our hands until the foreign law is shown. The question is not one peculiar to the federal courts, nor to be disposed of by any special rule prevailing there. Neither is it confined to the subject of torts. It may arise as well in a suit with regard to a note or bond, a policy of insurance, an inheritance, or a deed; and in each must receive similar treatment. However perfect in any such instance, therefore, the obligation may seem to be, no case is made out on which a verdict can stand, according to the doctrine which is contended for, unless at the same time the law of the foreign country where the obligation arose or the transaction took place is first made to appear. It might be a great hardship, amounting to a denial of justice, to compel this in some instances that we can conceive of, as in case of Senegambia or Thibet. Nor can a distinction be made that it shall apply to civilized countries that have a system of laws, while to countries that are uncivilized it shall not. The rule, as advocated, is that no relief can be given and that no case in fact exists, as there possibly would be if judged by the law of the forum, but that everything must be referred to the law where the transaction took place; according to which, if it was an uncivilized country and had no laws, there would be no right nor any wrong to redress. This is not our understanding of the law. The correct rule, as to which all the authorities, as we read them agree, is that, in the absence of proof of the foreign law, the court will apply the law as it conceives it to be, according to its own idea of right and justice, or, in other words, according to the law of the forum. That is the case between the different states of the Union, which in this respect are foreign to each other, where the presumption is freely, if not universally, indulged, that the law, except as it may be controlled by or dependent upon statute, is the same. That, also, is the rule as to countries strictly foreign; nor is it confined to those where the common law prevails. It is only another way of stating that, in the absence of proof, the law prima facie to be applied is the law of the place where the case comes up for trial. The authorities to this effect are so numerous as almost to be burdensome, but they are challenged by the argument, and it will not be out of the way, therefore, to go through them. It will simplify matters, however, and be more directly to the point, to cite only those which cover the case where the country is strictly foreign.

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The law is thus land down in Jones on Evidence (2d Ed.) Sec. 84:

'Where the rights of litigants are to be determined in this country, although those rights may be affected by proof of the law of a foreign country where the contract was made or the right acquired, in the absence of any such proof the law of the forum must furnish the rule of decision.'

Or, as it is put in 2 Whart. Conflict of Laws, Sec. 778, p. 1531:

'Where there is no evidence as to the character of a foreign law, the courts will presume it to be the same as the domestic law; in other words, in lack of such evidence, the courts will presume the law governing the case before them to be the same as the lex fori.'

In 13 Am. & Eng. Encycl. Law (2d Ed.) pp. 1060, 1061, after stating that it is a general rule throughout the United States that, in the absence of proof as to the laws of a sister state, they will be presumed to be the same as the lex fori, and that this has been extended so as to apply to the laws of foreign countries, and also that, while this is ordinarily limited to the common law and according to the weight of authority, no presumption arises that other countries or states have adopted the statute law of the domestic forum, it is added that:

'In the absence of proof of the foreign law, the court will of necessity proceed according to the law of the forum.'

And in 9 Encycl. Plead. & Prac. 543, it is said:

'Where a foreign law is not properly pleaded and proved, the presumption is that it is the same as that of the state in which the action is brought.'

Nowhere is the rule better or more clearly given than in Monroe v. Douglass, 5 N.Y. 447, where it is said by Foot, J.:

'It is a well-settled rule, founded on reason and authority, that the lex fori, or, in other words, the laws of the country to whose courts a party appeals for redress, furnish in all cases, prima facie, the rule of decision; and if either party wishes the benefit of a different rule or law, as, for instance, the lex domicilii, lex loci contratus, or lex rei sitae, he must aver and prove it.'

Or, as it is succinctly put in Linton v. Moorehead, 209 Pa. 646, 59 A. 264:

'The law of * * * any * * * foreign state, if material, is a fact to be proved, and, in the absence of such proof, it is presumed to be the same as the law of this state.'

This rule will be found to be abundantly sustained by an analysis of the cases.

Thus in Brown v. Gracey, Dow. & Ry. N.P. 41, 16 Eng. Com. Law, 426, note, action was brought on a promissory note, and there was a verdict for the plaintiff. Defendant moved for a new trial on the ground that the contract was made in Scotland, and that the plaintiff should have proved what the Scotch law was, and that the defendant was made liable thereby. But Abbott, C.J., said that, if the law of Scotland differed from the law of England as to liability, it lay on the defendant and not the plaintiff to prove it, and a rule was therefore refused. This case is cited with approval by Willes, J., speaking for the Exchequer Chamber in Lloyd v. Guibert, L.R. 1 Q.B. 115, 129, where it is said:

'A party who relies upon a right or an exemption by foreign law is bound to bring such law properly before the court, and to establish it by proof.

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Otherwise, the court, not being entitled to notice such law without judicial proof, must proceed according to the law of England.'

In Scott v. Lord Seymour, 1 Hurls. & Colt. 219, action was brought by one British subject against another for an assault and battery committed in Italy, and it was held by the court of Exchequer, as well as the Exchequer Chamber, that objection that by the law of Italy damages could not be recovered until certain penal proceedings which had been there commenced were determined was a matter of procedure only and no bar to an action in England. And Wightman, J., was of opinion that, if an action would lie by the English law for a particular wrong, the English courts would give redress, although it was committed in a country by the laws of which no redress was granted, if the parties were both British subjects.

In The Halley, L.R. 2 P.C. 193, it is said by Selwyn, Lord Justice:

'It is true that in many cases the courts of England inquire into and act upon the law of foreign countries, as in the case of a contract entered into in a foreign country, where by express reference, or by necessary implication, the foreign law is incorporated with the contract, and proof and consideration of the foreign law, therefore, become necessary to the construction of the contract itself; and as in the case of a collision on an ordinary road in a foreign country, where the rule of the road in force at the place of collision may be a necessary ingredient in the determination of the question by whose fault or negligence the alleged tort was committed. But in these and similar cases the English court admits the proof of the foreign law as part of the circumstances attending the execution of the...

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