McKnight v. Oregon Short Line R. Co.

• Decision Date: 17 July 1905
• Parties: McKNIGHT v. OREGON SHORT LINE R. CO.
• Court: Montana Supreme Court

82 P. 661

33 Mont. 40

McKNIGHT v. OREGON SHORT LINE R. CO.

Supreme Court of Montana

July 17, 1905

Appeal from District Court, Beaverhead County; M. H. Parker, Judge .

Action by S. M. McKnight against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Jno. G Willis, for appellant.

Robt. B. Smith, for respondent.

HOLLOWAY J.

This is an action brought by the plaintiff, McKnight, to recover from the Oregon Short Line Railroad Company $115 damages for live stock killed in the state of Idaho. The complaint attempts to state two causes of action. The first is for the recovery of $75. It is alleged that the defendant is a Utah corporation that it is the owner, controller, and operator of a certain railroad running from Salt Lake City, Utah, to Butte, Mont that on June 21, 1902, near Monida, in the state of Idaho the defendant ran one of its trains over and upon, and killed, a certain bull belonging to the plaintiff, of the value of $75; that within 90 days after the killing of such animal the plaintiff presented to the defendant a demand for the value of the animal killed, but this demand was refused. The second cause of action is for the recovery of $40, the value of a certain heifer, killed by defendant company on July 12, 1902, at the same place as the other animal. The allegations of this cause of action are similar to those of the first. The defendant interposed a general demurrer, which was overruled, and then filed an answer, denying generally all the allegations in the complaint, except the allegations respecting the corporate existence of the defendant, and that it owns, operates, and controls the line of railroad mentioned in the complaint. Upon the trial the court permitted the plaintiff to introduce in evidence the statute of Idaho under which the action was brought. The jury returned a verdict in favor of plaintiff for $115, and from the judgment entered thereon the defendant company appealed. The only question presented for our consideration is: Does the complaint state a cause of action? In our opinion the complaint is fatally defective in any of three particulars: (1) The action is brought under the statute of Idaho, and the statute is not pleaded; (2) the complaint does not show that the defendant was operating a line of railroad within the state of Idaho at the time the animals were, or either of them was, killed; and (3) the complaint does not allege that a claim in writing for the damages suffered, signed by the owner of the animals or his agent, was made upon the defendant company.

1. The complaint shows upon its face that each of the causes of action is predicated upon the laws of Idaho, within which state the animals were killed. Our courts do not take judicial notice of the statute of a sister state. The matters of which they do take judicial notice are enumerated in section 3150 of the Code of Civil Procedure, and the statutes of a sister state are not included; and, as that section establishes the law of this state respecting that particular subject, all matters not therein enumerated are excluded. Sections 3452, 3453, Code Civ. Proc. If, then, the court did not take judicial notice of the laws of Idaho, and the same were not set forth in the complaint in order to advise the court, it is difficult to see how the court could determine that the complaint in fact states a cause, or causes, of action under the laws of that state. It is an elementary rule that, where one relies upon a statute of a sister state, such statute must be pleaded and proved as a fact. 20 Enc. Pleading & Practice, 598; Bank of Commerce v. Fuqua, 11 Mont. 285, 28 P. 291, 14 L. R. A. 588, 28 Am. St. Rep. 461; O'Reilly v. N.Y. & N.E. R. R. Co., 16 R.I. 388, 17 A. 171, 906, 19 A. 244, 5 L. R. A. 364, 6 L. R. A. 719; Balfour v. Davis, 14 Or. 47, 12 P. 89; Lowry v. Moore, 16 Wash. 476, 48 P. 238, 58 Am. St. Rep . 49; Swank v. Hufnagle, 111 Ind. 453, 12 N.E. 303.

2. In order to bring this case within the provisions of the Idaho statute, it was necessary for the complaint to show that, at the time the animals were killed, the defendant was operating a line of railroad in the state of Idaho. The allegations of the complaint in this regard are "that the defendant is a corporation," etc.; "that the defendant is the owner, controller, and operator of a certain railroad running," etc. These allegations are all in the present...