Byrne v. Cooper, 1785--I

Citation523 P.2d 1216,11 Wn.App. 549
Decision Date08 July 1974
Docket NumberNo. 1785--I,1785--I
Parties, 75 A.L.R.3d 170 Paula H. BYRNE, Appellant, v. F. Bert COOPER, Respondent.
CourtCourt of Appeals of Washington

MacDonald, Hoague & Bayless, Kenneth A. MacDonald Frederick L. Noland, Joel Benoliel, Newman H. Clark, Seattle, for appellant.

Sharpe, Twigg & Ganz, Willard J. Sharpe, Woods & Keyes, Michael F. Keyes, Spokane, for respondent.

CALLOW, Judge.

The facts of this case are immaterial to the expression of the pertinent legal principles. Pursuant to RCW 2.06.040, only that portion of the opinion relating to the pleading and proof of foreign law will be published. The guidelines set forth were promulgated with the ramifications of this case in mind--pleading and proving the law of a foreign-common law country. The concepts presented are limited to that area.


The statutes or decisional law of a foreign country must be pleaded. RCW 5.24.040. See Scott v. Holcomb, 49 Wash.2d 387, 301 P.2d 1068 (1956); Norm Advertising, Inc. v. Monroe Street Lumber Co., 25 Wash.2d 391, 171 P.2d 177 (1946); Annot., 23 A.L.R.2d 1437 (1952). The plaintiff stated in the complaint that '(t)he laws of England and those of the State of Washington are applicable, and shall be relied upon by the plaintiff in proof of the allegations herein, . . .' The other allegations of the complaint contain sufficiently specific recitals to satisfy the notice requirement of CR 8 that the pleadings contain 'a short and plain statement of the claim showing that the pleader is entitled to relief. . . .' The pleading in this case, while sufficient to put the opposing party on notice under the liberal wording of CR 8, was lacking in sufficient specificity to provide guidance and direction to the formulation of the issues. 1 In Washington, the pleading of foreign law should state in substance the foreign law relied upon and inform the opposing party of the basis in foreign law for the claim or defense raised. Applicable foreign statutes should be set forth with their citations, and decisional foreign law should be concisely recapitulated. RCW 5.24.040; Martin Bros. v. Nettleton, 138 Wash. 102, 244 P. 386 (1926); Lowry v. Moore, 16 Wash. 476, 48 P. 238 (1897). See also Gevinson v. Kirkeby-Natus Corp., 26 A.D.2d 71, 270 N.Y.S.2d 989 (1966); Annot., 134 A.L.R. 570 (1941); 61 Am.Jur.2d Pleading §§ 12--14 (1972).

A number of difficulties could have been avoided in this case had the heart of the matter been thus reached with expedition. At the inception of the proceedings, the parties should get on with the enlightenment of the opponent about the claim or defense raised, and the pleadings should bring theories of recovery or defense into focus. A balance must be struck between the purpose of notice pleading under CR 8 and the requirement to plead foreign law under RCW 5.24.040. To achieve that balance, courts should require pleadings to sufficiently reflect the foreign law relied on so an opponent can grasp the significance of the pleader's claim, but liberally permit amendment of the pleadings when the standards of RCW 5.24.040 have not been met. 2

The rule cannot detract from the command of the statute. However, compliance with the statute should not impose technical demands requiring extensive research and expense before the preparation of an initial pleading. See Miller, Federal Rule 44.1 and the 'Fact' Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich.L.Rev. 613, 644 (1967).


In considering a motion for summary judgment, as well as upon trial, the evidence of foreign law must be sufficient to support a finding as to the foreign rule. Pisacane v. Italia Societa per Azioni di Navigazione,219 F.Supp. 424 (S.D.N.Y.1963); Caribbean Steamship Co. v. La Societe Navale Caennaise, 140 F.Supp. 16 (E.D.Va.1956), aff'd 239 F.2d 689 (4th Cir. 1956).

It is stated in Miller, Supra, at 671:

In cases such as Pisacane, therefore, when the proof before the court on a summary-judgment motion is not harmonious or is unpersuasive or inconclusive, the court should request a further showing by counsel, engage in its own research, or direct that a hearing be held, with or without oral testimony, to resolve the issue. A combination of these courses will insure as detailed a foreign-law presentation as might be anticipated at a full trial on the merits.

The following comment appears in O. Sommerich & B. Busch, Foreign Law, ch. 10, p. 82 (1959):

(T)here are actions where the basic contentions of the plaintiff or of the defendant do not set forth a genuine issue and should be summarily dismissed in the interests of time, expense and justice. What if these basic issues involve foreign law which, as already indicated, should be pleaded and proved as an issue of fact? Issues of fact are normally disposed of at a trial. Does this necessarily remove from the benefits of the summary judgment procedures actions involving foreign law issues?

As a matter of statutory law, foreign law issues are within the scope of rules providing for summary judgment and are entitled to its benefits as are any other issues of fact. Decisional law, however, indicates some reluctance on the part of the courts to grant summary judgment when faced with conflicting issues of foreign law. Both views merit some consideration.

In the first place, the practitioner who seeks by his motion to obtain, or by his answering papers to oppose, a motion for summary judgment, must follow proper procedure in his presentation of the issues of foreign law. All that has heretofore been stated with respect to the techniques of proving foreign law applies with equal force to a motion for a summary judgment, except that the oral testimony will now be replaced by a sworn affidavit, and the exhibits physically submitted upon a trial will be attached to the affidavits. This, therefore, calls for a sworn statement of opinion of foreign law, with the attachment of certified, authenticated or exemplified documents, decisions, extracts from commentaries or other authorities and statutes, laws or codes, as the case may be, all in the foreign language, together with the English translation of the same. The moving and opposing papers should approximate as much as possible the techniques used upon a trial.

The experts, whose affidavits of opinion are submitted, must be qualified in the same manner as they would be on a trial, and their experiences and qualifications should be shown in precisely the same way. These experts should, in turn, expand upon the qualifications, standing and stature of the authors of commentaries, treatises or text-books, upon which they rely, as well as the judges or courts whose decisions they cite or quote.

Courts to whom motions for summary judgment are addressed are not likely to be desirous of taking sole responsibility for finding and ascertaining the foreign law if they are not assisted, and even though they may be authorized to take judicial notice of foreign law, they will usually refuse to do so if nothing informative or helpful in that connection is placed before them.

Assuming, therefore, that both sides have submitted papers and documents which comply with proper procedure and a dispute is clearly indicated as to the foreign law, that does not necessarily dispose of the matter. Summary judgment is not to be denied merely because a difference of opinion exists as to the foreign law, and a party may nevertheless be entitled to summary judgment if it can successfully show to the satisfaction of the court that there is no Genuine issue as to the questions of foreign law. . . . the ascertainment of the foreign law must . . . be determined by the trial court, which is not bound by the opinions of the experts.

(Footnotes omitted.)

The proof of foreign law was insufficient, at the time of the submission of the issue on the motion for summary judgment to the trial court, to support a ruling thereon. The court could not take judicial notice of the law of the foreign country. Philp v. Macri, 261 F.2d 945 (9th Cir. 1958). It was proper for the court to require additional evidence of the foreign law. It would also have been proper for the trial court to deny the motion if it was then apparent that the issues had not yet been framed. In fairness to the trial court, we note that the issue between the parties was not then crystallized, and this did not become apparent until during the appellate proceedings.

3. Foreign Law as a 'Fact' to be Proven.

A reference in the pleadings to the foreign law of a specific country is insufficient to prove that the law of the foreign county supports any particular cause of action. Martin Bros. v. Nettleton, Supra; Lagomarsino v. Pacific Alaska Navigation Co., 100 Wash. 105, 170 P. 368 (1918). It has been said that foreign law must be proven as a 'fact.' Hanna Nielsen, 25 F.2d 984 (W.D.Wash.1928); In re Candell, 54 Wash.2d 276, 340 P.2d 173 (1959); Rood v. Horton, 132 Wash. 82, 89, 231 P. 450 (1924); State v. Collins, 69 Wash. 268, 124 P. 903 (1912); In re Estate of Stewart, 26 Wash. 32, 66 P. 148, 67 P. 723 (1901). See also Ostrander v. Yokohama Specie Bank, Ltd., 153 Wash. 427, 279 P. 585 (1929); In re Estate of Pompal, 150 Wash. 242, 272 P. 980 (1928); Gasaway v. Thomas, 56 Wash. 77, 105 P. 168 (1909); 2 L. Orland, Wash.Prac. §§ 71, 74 (3d ed. 1972).

Foreign law, albeit, is not a true 'fact' except in the procedural manner of its proof. Though foreign law is denominated as 'fact' and is to be proven as such, the ultimate context and substance of the proposed foreign law is decided as an issue of law. The gist thereof should be set forth as a conclusion of the trial court, and the conclusion is reviewable. State v. Jackovick, 56 Wash.2d 915, 355 P.2d 976 (1960); Gevinson v. Kirkeby-Natus Corp., Supra. See also First Nat'l City Bank v. Compania de...

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