Dixie Ohio Exp. Co. v. Butler

• Decision Date: 05 December 1942
• Citation: 166 S.W.2d 614,179 Tenn. 358
• Parties: DIXIE OHIO EXP. CO. v. BUTLER.
• Court: Tennessee Supreme Court

166 S.W.2d 614

179 Tenn. 358

DIXIE OHIO EXP. CO. v. BUTLER.

Supreme Court of Tennessee.

December 5, 1942

Error to Circuit Court, Scott County; Harry B. Brown, Judge.

Suit by Mrs. John Butler, administratrix of the estate of John Butler, deceased, against the Dixie Ohio Express Company to recover for deceased's death as result of the allegedly negligent operation of one of defendant's trucks. From a judgment in the circuit court in favor of the plaintiff, the defendant appealed to the Court of Appeals. To review a judgment of the Court of Appeals affirming the circuit court's judgment, the defendant brings certiorari.

Judgment reversed, and cause remanded for new trial.

B. H Needham, of Knoxville, and C. A. Templeton, of Jellico, for plaintiff in error.

Howard H. Baker and W. H. Buttram, Jr., both of Huntsville, for defendant in error.

GREEN Chief Justice.

As administratrix of her husband, John Butler, deceased, the plaintiff, Mrs. John Butler, brought suit against the defendant, Dixie Ohio Express Company, to recover damages for the death of the deceased alleged to have been occasioned by the negligent operation of one of the defendant's trucks. There was a judgment in the circuit court in favor of plaintiff for $2,999 which was affirmed by the Court of Appeals, and this Court granted petition for certiorari.

The declaration alleged that the accident occurred in the State of Kentucky but it did not aver that there was any statute of that State providing a right of action for the death of one wrongfully killed at the hands of another. Neither was any proof introduced to show that such a statute had been enacted in the State of Kentucky. The defendant made a motion for a directed verdict in its favor, which motion it is urged that the court below and the Court of Appeals improperly overruled owing to the defect in the declaration and the proof in the particular just mentioned. This contention of the defendant must be sustained under the authority of all our decided cases.

While our courts will entertain a suit like this based on the statute of another State, it has been uniformly held, where the injury was inflicted in another State, that the statute must be pleaded and proven. Nashville & C. R. Co. v Eakin, 46 Tenn. 583, 6 Cold. 583; Hobbs v. Memphis & C. R. Co., 56 Tenn. 873, 9 Heisk. 873; Nashville & C. R. Co. v. Sprayberry, 56 Tenn. 852, 9 Heisk, 852; Nashville C. & St. L. Ry. v. Foster, 78 Tenn. 351; Kennard v. Illinois Cent. R. Co., 177 Tenn. 311, 148 S.W.2d 1017, 134 A.L.R. 770, and others.

The principles of the foregoing cases is that the courts of this State do not take judicial notice of the laws of another State.

There are numerous decisions of this Court in which the cases were properly to be controlled by the laws of another State and where the laws of that State were not proven, our Court presumed that such laws were similar to the laws of Tennessee and proceeded to enforce the rights of the parties under such presumption. This presumption has been applied in this jurisdiction to the statute laws of other States. We may refer, among other decisions, to Bagwell v. McTighe, 85 Tenn. 616, 4 S.W. 46; Railroad v. Hailey, 94 Tenn. 383, 29 S.W. 367; Star Clothing Mfg. Co. v. Nordeman, 118 Tenn. 384, 100 S.W. 93; and DeSoto Hardwood Floor Co. v. Old Dominion, etc., Co., 163 Tenn. 532, 43 S.W.2d 1069.

We have no decision in this State, however, nor are we referred to one in any other jurisdiction, where a court has presumed the existence of a statute of another State which abolished the common-law rule that the right of action of a person injured perished with his death--no decision assuming the existence and similarity of such a foreign statute to a local statute.

To indulge such presumption would be to repudiate our common knowledge, certainly as regards similarity between such foreign statute and the Tennessee statute. In Carolina, C. & O. R. R. Co. v. Shewalter, 128 Tenn. 363, 161 S.W. 1136, this Court elaborately considered statutes of various States providing a right of action for wrongful death. We noted that some of these statutes provided that damages recoverable were only such as were sustained by named dependents and beneficiaries. Other statutes, called survival statutes, provided for the recovery of such damages as the deceased, had he lived, might have obtained. Still other statutes provided for both these elements of damages. The situation has been thus described:

"At the present time there are statutes in force in nearly all the states substantially embodying the provisions of Lord Campbell's Act in so far as the right to maintain an action for wrongful death is concerned, although the provisions of the different statutes differ widely in respect of the persons entitled to maintain such action, the persons for whose benefit the action may be maintained, the time of bringing the action, the measure and elements of damages recoverable, and the distribution of the same." 16 Am.Jur. 40.

In view of these well-known differences between statutes of this kind in the different States, a presumption that such a statute of another State is similar to ours seems a presumption too violent to be indulged.

It has been expressly held by this Court in Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221, that the proceeds of a recovery in our courts for wrongful death sustained in Arkansas should be distributed according to the laws of that State. The declaration in the case before us invokes the statutes of Kentucky with reference to the operation of vehicles, such as the one involved here, on the highways and proof of those statutes was made. Indeed, the recovery appears to rest on one of those statutes, which contains a restriction as to speed not prevailing in this State. So we take it that the plaintiff concedes her substantive rights herein are governed altogether by Kentucky laws. It is therefore not necessary to argue herein that this is true.

So far as we know the decisions everywhere are to the effect that in any suit for wrongful death based on the statute of another State, the injury having been inflicted in that other State, such statute must be pleaded and proven. Tiffany on Death by Wrongful Act, § 195; 17 C.J. 1283; 25 C.J.S., Death, § 70, p. 1188; 16 Am.Jur. 262.

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