Miller v. Atlantic Coast Line R. Co.

• Decision Date: 29 March 1911
• Citation: 70 S.E. 838,154 N.C. 441
• Parties: MILLER v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

70 S.E. 838

154 N.C. 441

MILLER v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

March 29, 1911

Appeal from Superior Court, Wayne County; Cooke, Judge.

Action by John H. Miller against the Atlantic Coast Line Railroad Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

The issue that plaintiff is not entitled to recover under the laws of the state in which the injury occurred and the right of action accrued cannot be raised by demurrer to the complaint, but must be set up in the answer and proved.

W. C. Munroe and W. A. Townes, for appellant.

BROWN, J.

Taking the allegations of the complaint to be true, as we must upon demurrer, we are of opinion that the demurrer was properly overruled. There is only one ground of demurrer that we deem it necessary to consider. It is alleged in the complaint that the injury was received at Pinner's Point, Va., on April 21, 1907, and that under the laws then and now in force in said state the plaintiff has a good cause of action against the defendant. The issue attempted to be raised by the demurrer that, under the laws of Virginia, the plaintiff is not entitled to recover, cannot be raised in that way. Such defense must be set up in answer, and the burden of proof would be on the defendant to establish it. According to the principles of the common law, the facts alleged, if established by proof, make out a good cause of action, and it is very generally held that, in the absence of proof to the contrary, the common law will generally be presumed to be in force in a sister state, except in those states whose jurisprudence is not founded on the common law. 13 Am. & Eng. Ency. 1062. The general principle that a condition of things once established is presumed to continue until the contrary is shown has been applied to the proof of foreign laws. The courts will not take judicial notice of the statutes and laws of the different states which may have changed the common law. 13 Am. & Eng. Ency. 1063, and cases cited. The proof of them must be put in evidence by the party relying on them, and the methods of proof and the competency of evidence is regulated by statute. Revisal 1905, § 1594. Hancock v. Telegraph Company, 142 N.C. 164, 55 S.E. 82.

Affirmed.