Watford v. Ala-Fla. Lumber Co. , 152 Ala. 178 ( 1907 )

ANDERSON, J.

The defendant, being a domestic corporation, was suable in this state, although the tort complained of was an injury sustained by the plaintiff in the state of Florida. The cause of action is transitory in its nature, and may be enforced in the courts of this state, where the defendant corporation has its domicile, and where jurisdiction of its person may he lawfully obtained. — Helton v. Ala. Midland R. R. Co., 97 Ala. 275, 12 South. 276; Dennick v. Railway Co., 103 U. S. 11, 26 L. Ed. 439.

There can he no recovery in Alabama for injuries to the person sustained in another state, unless actionable by the laws of the state where received. — A. G. S. R. R. Co. v. Carroll, 97 Ala. 126, 11 South. 803, 18 L. R. A. 433, 38 Am. St. Rp. 163; Kahl v. M. & C. R. R., 95 Ala. 337, 10 South. 661; Central R. R. v. Carr, 76 Ala. 388, 52 Am. Rep. 339; L. & N. R. R. Co. v. Williams, 113 Ala. 402, 21 South. 938. There is no averment in the complaint as to the laws of the state of Florida, and we are therefore called upon to apply the rule of presumption in ascertaining whether or not the complaint made out a cause of action. The rule is well established that, in the absence of an averment and proof to the contrary, the courts of a state will presume that the common law prevails in other states. Authorities above cited; Cressey v. Tatam, 9 Or. 545; 13 Am. & Eng. Ency. Law, 1063. This rule prevails in all states having a common origin, formed by colonies 'which constituted a part of the same empire and which recognize the common law as the source of their jurisprudence. u But no such presumption can apply to states in which a government already existed at the time of their accession to the country, as Florida, Louisiana, and Texas. * * With them there is no more existence of the common law than of any other law.” — Norris v Harris, 15 Cal. 252; Peet v. Hatcher, 112 Ala. 514, 21 South. 711, 57 Am. St. Rep. 45; 13 Am. & Eng. Ency. Law, 1063. It is generally 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. — Kennebrew v. Southern Automatic Co., 106 Ala. 377, 17 South. 545; Peet v. Hatcher, 112 Ala. 514, 21 South. 711, 57 Am. St. Rep. 45; Brown v. Wright, 21 L. R. A. 467, 58 Ark. 20, 22 S. W. 1022, and numerous authorities in note on page 869. And our court, in the Cases of Ken-nebrew and Peet, has applied the foregoing rule of presumption with reference to Louisiana contracts. The court, speaking through Justice Head, says: “It may be well, said that, as we judicially know no other law of the case than our own, the parties litigant, by failing to produce the lex contractus, impliedly agree that it is the same as the lex fori, be the latter common law or statute. Thus it may be regarded as settled in this state that when a contract made in a state or country wherein we cannot presume the existence of the common law is sought to be enforced in the courts of this state, and the lex loci is not produced, we will apply to it our own law.”

It must he borne in mind that the foregoing rule, as promulgated by our own court, applies only to the enforcement of contracts. Indeed, the writer has failed to find, from the examination of the authorities in this and other jurisdictions, that the foregoing rule has been applied in cases of tort, but is confined to the enforcement of contracts and in sustaining the title to property within the state in which the action was brought. Nor are we willing to extend the rule to the case at bar, but hold that in so much as the injury was sustained in the state of Florida, a state in which we cannot presume the existence of the common law, it was incumbent upon the plaintiff to aver and prove a cause of action under the law of Florida. The Kansas court, in the case of McCarthy v. Ry. Co., 18 Kan. 46, 26 Am. Rep. 742, rather sustains the distinction drawn by us in the following language: “And a very different principle is involved between presuming tbe laws of sister states like our own to sustain title to property within this state in litigation, and in holding that the laws of other states are similar to ours in enforcing either the penal or remedial statutes of such other states.” Florida not being of common origin with Alabama, I think that, when a person sues in the courts of this state for injuries received in the state of Florida, he should aver the laws of that state and show that he has a cause of action, and that, as the complaint fails to set out a cause of action, it would not support a judgment, and, if the trial court committed any errors upon the trial, they were innocuous to the plaintiff. — L. & N. R. R. Co. v. Williams, 113 Ala. 402, 21 South. 938.

Justice Haralson concurs with the writer; but a majority of the court are óf the opinion that, in the absence of averment and proof of the laws of Florida, the parties by invoking the jurisdiction of the Alabama court submit themselves to the laws of this state; that the complaint is framed under the common law, which prevails in this state; and the question should, therefore, be dealt with under the Alabama law.

As to whether or not the first count was subject to demurrer we cannot determine, as the ruling in reference to same was favorable to the appellant. Whether or not the second count was sufficient we need not de; cide; but it was not subject to the grounds of demurrer interposed, and the trial court erred in sustaining the same,

The judgment of the circuit court is reversed, and the cause is remanded.

Keversed and remanded.

Tyson, C. J., and Dowdell, Simpson, Denson, and McClellan, JJ., concur. Haralson and Anderson, JJ., dissent.