Ryan v. North Alaska Salmon Co.

[439]

McFARLAND, J.

J.—The complaint charged that Orion F. Ryan met his death in the territory of Alaska through the negligence of the defendant company by which he was employed. Plaintiff sues to recover damages for the death so occasioned, not as the personal representative, but as his mother and sole surviving heir. (Code Civ. Proc., sec. 377.) The complaint is silent as to the laws of the territory of Alaska, and defendant’s general demurrer for lack of facts was sustained by the court without leave to amend, and the action was accordingly dismissed.

The demurrer was properly sustained. Where the action, as here, is transitory in its nature, a right or liability imposed by the statute of another state, or of the United States, may in proper cases be asserted and enforced in this state. Such may be taken to be the settled rule since the case of

Dennick

v.

Railway,

103 U. S. 11. But the courts of this state will only entertain such an action for the purpose and upon the terms permitted by the

lex loci.

In other words, the right to prosecute this action in California is permissible only if permissible under the laws of Alaska, and only upon such terms as the laws of Alaska prescribe. And, as at common law there was no right of action for an injury causing death, and as the courts of this state do not take judicial notice of the laws of foreign states, it is necessary for the plaintiff to plead and prove such law.. Thus it is said in

Wickersham

v.

Johnston,

104 Cal. 407, [43 Am. St. Rep. 118, 38 Pac. 89], quoting from

Liverpool Co.

v.

Phenix Ins. Co.,

129 U. S. 445, [9 Sup. Ct. 469] : “The law of Great Britain since the Declaration of Independence is the law of a foreign country, and, like any other foreign law, is matter of fact, which the •courts of this country cannot be presumed to be acquainted with, or to have judicial knowledge of, unless it is pleaded and proved.” “There being no right of action at common law for an injury causing death, the plaintiff in such an action must specifically aver and prove that the laws of the state where the injury occurred permit such an action.” (8 Am. & Eng. Ency. of Law, p. 880 ; 13 Cyc. 345.)