This is an action under the statute of North Carolina (commonly known as Lord Campbell's Act), on account of the death of plaintiff's intestate, who was in the employment of the defendant and was killed, by one of its switch engines in the yards at Charlotte, N.C., while crossing one of its tracks.
The sixth paragraph of the complaint is as follows: "That under the law of the State of North Carolina, known as the Lord Campbell Act, the defendant, by said wrongful killing of said Jules Free, became liable to this plaintiff as his administrator for the benefit of his parents, for the damages caused by said wrongful conduct, and that said plaintiff, as such administrator, was thereby damaged in the sum of $2,000.00, for which he asks judgment."
The defendant answered the complaint, denying all except the formal allegations thereof, and setting up the defenses of contributory negligence and assumption of risk.
The plaintiff filed a reply alleging the statute of North Carolina as follows: "That any servant or employee of any railroad company operating in this State, who shall suffer injury to his person, or the personal representative of any *Page 64 servant or employee who shall have suffered death in the course of his service or employment with said company, by the negligence, carelessness or incapacity of any servant, employee or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company."
The defendant made a motion to strike out these allegations in the reply, but it was refused.
At the close of the plaintiff's testimony the defendant made a motion for a nonsuit on the following grounds:
(1) "That there is no proof here, that under the law of North Carolina, where this accident happened, the plaintiff can recover. This act does not set out for whose benefit the action shall be brought.
(2) "That if the suit is brought here in the name of the personal representative, that personal representative must be a personal representative of North Carolina, and not a man in this State.
(3) "That as an additional ground all the evidence shows the deceased was guilty of contributory negligence."
The plaintiff then requested permission to amend paragraph 6 of the complaint, so as to conform the pleadings to the facts proved, but the request was refused.
The nonsuit was granted on the first of said grounds, and the plaintiff appealed upon a single exception, which is as follows: "That his Honor erred in holding that the only way in which the Lord Campbell Act of North Carolina, referred to in the complaint, could be proven was by a volume of the statutes of North Carolina, and in granting nonsuit because such statute was not produced: it being respectfully submitted that the proof offered by the plaintiff, to wit, the decision of the Supreme Court of North Carolina, and the decision of the Supreme Court of South Carolina, as to what that statute was, was sufficient proof of such statute to go to the jury."
It seems to us that the exception was taken under a misapprehension *Page 65 of the ruling of his Honor, the presiding Judge.
The decision in the case of Killian v. R.R., 38 S.E.R. (N.C.), 873, was introduced in evidence without objection, but when the plaintiff offered to introduce the decision in the case of Dennis v. R.R., 70 S.C. 254, 49 S.E., 869, the following took place:
"Mr. Sanders: We do not admit that as evidence. Mr. Wilson: I offer it as evidence. Mr. Sanders: We object to the South Carolina report going in as evidence.
"Court: I hold that the statement found in that decision of the Supreme Court of South Carolina, as to what the Lord Campbell's Act is in North Carolina, is not evidence; is not the best evidence of what that act really is. That is not the way to prove it. That can only be proven by the volume of the statutes of North Carolina. What the act of the North Carolina Legislature is cannot be proven by the decision of the Supreme Court of South Carolina.
"As to the case of Killian against the Railroad Company, 38 Southeastern Reporter, 873, introduced in behalf of the plaintiff, for the purpose of showing what the Lord Campbell's Act in North Carolina is, is in my judgment insufficient for that purpose, even if I were of the opinion that the decision of the Supreme Court of South Carolina was the proper method of proving a North Carolina act. In that case it was shown that the Lord Campbell's Act, section 1498, provided: Wherever the death of a person is caused by the wrongful act of another, action therefor may be brought. Section 1499 provided: That the plaintiff in such action may recover such damages as are fair and just compensation, resulting from such death. That being the case, and as the Court is now advised that this North Carolina case, even if it is proper evidence as to what provision is made, for whose benefit the suit is to be brought, and as the plaintiff has alleged in his complaint, that the act provides for the bringing of such a suit by the personal representative, in a case like this, where there is the death of his son, *Page 66 for the benefit of the parent, and as this suit is brought for the benefit of the parent of the deceased by the personal representative, and that there is no evidence before the Court that under the North Carolina statutes suit can be brought and maintained for the benefit of the parent, the motion for a nonsuit is sustained for want of evidence, showing that an action under the statute of North Carolina, for a wrongful act causing the death of the deceased, is authorized to be brought by the personal representative, for the benefit of the parent of the deceased, when that deceased is a child."
Section 2890 of the Code of Laws, which provides the manner of proving the statutes of other States, is as follows:
"Printed copies in volumes of statutes, Code, or other written law enacted by any other sovereignty, State or Territory, or foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the Courts and judicial tribunals of such sovereignty, State, Territory, or government, shall be admitted by the Courts and officers of this State, on all occasions, as presumptive evidence of such laws. The unwritten or common law of any other sovereignty, State or Territory, or foreign government, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their Courts may also be admitted as presumptive evidence of such law."
This section shows that the ruling of the presiding Judge, when objection was interposed to the introduction in evidence of the South Carolina decision, was free from error.
We do not understand his Honor to have ruled that the decision in the Killian case was not competent evidence of the North Carolina statute, but that it failed to show that the personal representative of the deceased could bring the action for the benefit of the parents, in consequence of which there was no testimony to sustain the allegation of the complaint in this respect.
For these reasons I dissent. *Page 67