253 Ky. 748
Court of Appeals of Kentucky.
Feb. 23, 1934.
As Modified on Denial of Rehearing May 4, 1934.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by Rosa Lee Stewart's administratrix against J. R. Bacon and others.
Judgment for defendants upon directed verdict, and plaintiff appeals.

DRURY, Commissioner.
The appellant, as administratrix of Rosa Lee Stewart, by this action sought to recover of the three defendants, J. R. Bacon et al., $40,000 as damages for the death of her intestate, which is alleged to have resulted from the negligence of the defendants. At the conclusion of the evidence for the plaintiff, upon motion of the defendants the court directed a verdict for them. The plaintiff's motion for a new trial having been overruled, she has appealed.

We need discuss the evidence no further than to say that it shows both the alleged negligence of the defendants and the resulting death of plaintiff's intestate occurred wholly in the city of Cobourg, county of Northumberland, province of Ontario, Dominion of Canada.

An action for a tort committed in a foreign country will lie only when it is based upon an act which will be considered as tortious both by the law of the place where committed (lex loci delicti commissi) and by the law of the place where the court sits; and in such a case the law of the place where the tort was committed (in this case the law of Ontario, Canada) governs.

This is a transitory action, and the law of the place where the injury occurred (Ontario) governs in respect to the right of action. There is neither allegation nor proof of what that law may be. The court will not take judicial notice of the laws of other states or foreign countries, whether they be of statutory or judicial determination, but they must be proved in the same manner as other facts.

"It is a presumption that the common law prevails in states which are known to be of common law origin *** so that the presumption may undoubtedly be indulged in with respect to the law of Canada, whose jurisprudence is judicially known to be based upon the common law."

"It is presumed in the absence of proof to the contrary that the common law prevails in Canada and other British colonies."

"Where an action is brought in one state based on facts occurring in another state which do not constitute a common law right of action, it is necessary for the plaintiff to plead and prove that in such other state there is a statute permitting a recovery otherwise it will be presumed that the common law is in force there, and therefore that the action is not maintainable."

The residence of the litigants does not determine the law applicable to their controversy. Courts do not know the law of any other state, whether the state be one of the states of this Union or a foreign state. It is necessary both to plead and prove such laws, and unless this is done only one presumption arises, and that is that the common law of a foreign state is the same as the common law of Kentucky. There is no presumption without pleading and proof as to what is the statute of any other state or foreign country. The common law of Ontario then being presumed to be the same as the common law of Kentucky, this case must be governed by the common law of Kentucky. It is well settled at common law that there can be no recovery for death.

"'The common law allowed of no remedy, by way of a civil action, for an injury causing the death of a human being. Such injury must necessarily precede death, and the law did not allow any cause of action for an injury to the person to survive him. No one, whether as executor, master, parent, husband, wife, or child, or in any other right or capacity, could maintain an action for damages on account of the death of a human being.' The maxim, 'Actio personalis moritur cum persona,' was the uniform rule of the common law, and prevails in Kentucky to-day, except where it has been modified by the express language of the Constitution and statute."

The appellant argues that it was the duty of the defendants to allege and prove the law of Canada if they desired to rely thereon, and that in the absence of both allegation and proof thereof the court should have presumed it is the same as that of Kentucky, and hence erred in directing a verdict for the defendants and in support of this contention; and also some opinions from other states, but our rule is to the contrary.

The court did not err in directing a verdict for the defendants. Discussion of other questions raised is unnecessary.

Judgment affirmed.

Ky.App. 1934.
70 S.W.2d 522, 253 Ky. 748

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