Kennebrew v. Southern Automatic Electric Shock Mach. Co.

• Decision Date: 25 April 1895
• Citation: 106 Ala. 377,17 So. 545
• Parties: KENNEBREW v. SOUTHERN AUTOMATIC ELECTRIC SHOCK MACH. CO.
• Court: Alabama Supreme Court

17 So. 545

106 Ala. 377

KENNEBREW v. SOUTHERN AUTOMATIC ELECTRIC SHOCK MACH. CO.

Supreme Court of Alabama

April 25, 1895

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Assumpsit by the Southern Automatic Electric Shock Machine Company against D. D. Kennebrew. From a judgment for plaintiff defendant appeals. Reversed.

Sumter Lea, for appellant.

James E. Zunts, for appellee.

McCLELLAN J.

There is a dictum in the case of Castleman v. Jeffries, 60 Ala. 380, 388, to the effect that there is no presumption as to what the law is in a state which is not of common-law origin, the court saying: "No proof has been made of the laws of Texas bearing on this question. If Texas had had a common origin with this and the other older states, we would presume the common law prevails there. But Texas did not have a common origin with these older states, as to which this presumption is indulged. Hence we are left without proof and without presumption as to what are the laws of Texas which govern the transmission of property, and the effect of marriage upon its title and enjoyment." We say this was "dictum" because the question in the case, in connection with which the laws of Texas were spoken of, was decided according to the laws of Alabama, and this upon considerations which would have obtained even though different laws of Texas had been in proof. This dictum is opposed to the overwhelming weight of authority. It is almost universally held that where there is no proof of the law of another state, nor judicial knowledge of the origin of such state, which would raise up a presumption that the common law prevails there, it will be presumed that the law of the forum in which the issue is being tried is the law of that state on the question under consideration. Brown v. Wright (Ark., 22 S.W. 1022) 21 Lawy. Rep. Ann. 467, and the numerous authorities cited in note thereto; especially Sandmeyer v. Insurance Co., 2 S. D. 346, 50 N.W. 353; Southern Ins. Co. v. Wolverton Hardware Co. (Tex. Sup.) 19 S.W 615; Bradley v. Insurance Co., 3 Lans. 341; Garner v. Wright, 52 Ark. 385, 12 S.W. 785; James v. James, 81 Tex. 373, 16 S.W. 1087; 3 Am. &amp Eng. Enc. Law, p. 539, note 2; Gray v. Jackson, 12 Am. Rep. 1.

This is an action for the recovery of the price agreed by the defendant to be paid for certain electric shock machines sold by plaintiff to defendant in the state of Louisiana. The defendant interposed the following plea: "The defendant for further answer to the complaint, says that the amount here...