(dissenting). The writ of error in this case brings up for review a judgment rendered in the Circuit Court of the United States for the District of New Jersey. The action in which said judgment was rendered, was brought by the defendant in error (hereinafter called the plaintiff) against the plaintiff in error (hereinafter called the defendant), for personal injuries alleged to have been received while the plaintiff was an employé of the defendant, in a planing mill conducted by said defendant in the republic of Cuba. These injuries were alleged by the plaintiff to have been the result of defendant’s negligence in not’ maintaining a certain stationary engine, at which plaintiff was employed by defendant ,as an engineer, in a reasonably safe, stable, and proper condition, so as not to endanger the safety of those of its employes who were compelled to work near and about the same.
The defendant was a corporation of the state of New Jersey, and the plaintiff proved that he was a citizen of the state of Tennessee. The general jurisdiction of the Circuit Court, therefore, attached, by reason of the diversity of citizenship. Plaintiff’s declaration stated the ordinary case of negligence of the employer, in not using due care under the circumstances to provide for its employes safe tools, machines, and appliances with which to work.
If the negligent acts, as charged in the declaration, had been committed in the state of New Jersey, it is not questioned that, by the laws of that state, the laws of the forum, a right of action would have accrued to the plaintiff. The declaration, however, charges that these negligent acts were committed at Camaguey, in the republic of Cuba, and the case was therefore justiceable in the Circuit Court of the United States for the District of New Jersey only in case the injury complained of constituted an actionable wrong under the laws of Cuba, and imposed upon the wrongdoer an obligation to make reparation. There is nothing, however, in the plaintiff’s declaration to indicate what right of action accrued to him, or what obligation was imposed upon the defendant in the premises, by such laws. Those laws were in no wise referred to, and the case was presented to the court below on the theory that the plaintiff’s right to recover was established by the law of the forum, or else upon the theory that, the law of the place where the alleged wrong was committed was to be presumed to be the same as that of the law of the forum. The *381theory first mentioned is, of course, untenable, and we think the latter is equally so.
It is well settled that, though the act be wrongful by the foreign law, if it is not wrongful by the law of the forum, no action will lie, comity of the courts not extending, either in this country or in England, to the enforcement of liabilities not recognized by the law or policy of their own state or country. Macdade v. Fontes, L. R. 2 Q. B. 231; Phillips v. Eyre, L. R. 6 Q. B. 1. The theory upon which such liabilities may be recognized and enforced is clearly stated by the Supreme Court in the late case of Slater v. Mexican Natl. R. R. Co., 194 U. S. 120, 126, 24 Sup. Ct. 581, 48 L. Ed. 900. An action had been brought in the United States Circuit Court of Texas by the widow and children of William H. Slater, against a Colorado corporation operating a railroad in the republic of Mexico, to recover damages for the death of the said husband and father, who was employed by defendant company as a switchman on its road, and was killed, as alleged, through defendant’s negligence, while coupling two freight cars in Mexico. The laws of Mexico, conferring a right of action, were set forth in plaintiff’s petition. The defendant, by plea, set forth additional sections of the Mexican statute, by reason of which, as it contended, the action given by the Mexican laws was not transitory. A demurrer to this plea was sustained by the court below. The case was then taken to the Circuit Court of Appeals, where the judgment was reversed and the action ordered to be dismissed. This judgment of the Court of Appeals came before the Supreme Court, on certiorari, Mr. Justice Holmes, in delivering the opinion of the Supreme Court, said:
“We assume for the moment that it was sufficiently alleged and proved that the killing of Slater was a negligent crime within the definition of article 11 of the Penal Code, and, therefore, if the above sections were the only law bearing on the matter, that they created a civil liability to make reparation to any one whose rights were infringed.
“As Texas has statutes which give an action for wrongfully causing of death, of course there is no general objection of policy to enforcing such a liability there, although it arose in another jurisdiction. Stewart v. Baltimore & Ohio R. R., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537. But when such a liability is enforced in a jurisdiction foreign to the place of the wrongful act, obviously that does not mean that the act in any degree is subject to the lex fori, with regard to either its quality or its consequences. On the other hand, it equally little means that the law of the place of the act is operative outside its own territory. The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation, an obligation which, like other obligations, follows the person, and may be enforced wherever the person may be found. Stout v. Wood, 1 Blackf. (Ind.) 71; Dennick v. Railroad Co., 103 U. S. 11, 18, 26 L. Ed. 439. But as the only soxirce of this obligation Is the law of the place of the act, it follows that that law determines not merely the existence of the obligation (Smith v. Condry, 1 How. 28 11 L. Ed. 35), but equally determines its extent. It seems to us unjust to allow a plaintiff to come here absolutely depending on the foreign law for the foundation of Ms case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose.”
In Cooley on Torts (3d ltd.) p. 900, it is said:
"But it is agreed that to support an action (for a foreign tort) the act must have been wrongful or punishable where it took place, and that whatever *382would be a good defense to the action, if brought there, must be a good defense everywhere.”
See., also, Herrick v. Minn. & St. Louis Ry., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771.
It is clear, therefore, that the existence of an obligation, and the right to its enforcement by the foreign law, is essential - to a valid cause of action in the trial forum, and the general rule in this country and in England undoubtedly is the one which flows logically from the premises, viz., that the existence of such obligation under the foreign law must be alleged and proved in the domestic forum; otherwise, no valid cause of action is made to appear to the court. In. such cases, the foreign law must be proved as a fact; otherwise, the plaintiff fails to make out his cause of action, which is the obligation imposed on the defendant by that law, and by that law alone.
It must be noted that, in Slater v. Mexican Natl. R. R. Co., supra, the 'court, in. the beginning of the statement which we have extracted from the opinion, say:
“We assume for tbe moment that it was sufficiently alleged and proved that the killing of Slater was a negligent crime, within the definition of article 11 of the Penal Code.”
So also, in the case of Mexican Cent. Ry. Co. v. Chantry, 136 Fed. 316, 69 C. C. A. 454, which was not a case of death, but a suit brought in the Circuit Court of the United States, for injuries received by the plaintiff in Mexico. The petition set forth the laws of Mexico, which created the obligation sued upon, and the Circuit Court of Appeals for the Fifth Circuit said:
“To recover in this transitory action for the alleged personal injuries, it must be shown that the laws of Mexico give a right of action. Foreign laws are matters of facts, and, like other facts, must be pleaded and proved. Liverpool & G. W. S. Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788. Assuming that in this case it had been sufficiently pleaded and proved that under the laws of Mexico the plaintiff is given a civil right of action to recover from the defendant company for the injuries in question, we still meet the proposition that,” the right of action was extinguished under the same laws.
The court then say:
“After much consideration, we conclude, on principle and authority, that ■the rule declared in McLeod v. Connecticut & P. R. Co., 58 Vt. 727, 6 Atl. 648, as follows: ‘Although a civil right of action acquired or a liability incurred in one state or country for a personal injury may be enforced in another to which the party in fault may have removed or where he may be found, yet the right of action must exist under the laws of the place where the act was done or neglect accrued. If no cause or right of action for which redress may be had exists in the country where the personal injury was -received, then there is no cause of action to travel with the person claimed to be in fault, which may be enforced in the state where he may be found’ — is a correct statement of the law of the case.”
However it may be in cases where the alleged injury was committed in one of the other states of the Union, or in other places where the English common law prevails, there is clearly no presumption in the plaintiff’s favor in the case under consideration. The court will take judicial notice of the fact that Cuba is one of the Latin countries, where the common law, as we understood it, is not in force. *383As we have said, there is here no allegation of a cause of action under the laws of Cuba, or any reference to such laws. The plaintiff testified as to the facts as they occurred in that republic, and as he had not alleged, neither did he prove, that under the laws of Cuba any obligation was imposed by reason of said' laws on the defendant. At the conclusion of plaintiff’s testimony, defendant’s counsel moved that the case be dismissed, on the ground that it clearly appeared that plaintiff had made out no cause of action justiceable in the forum in which his suit was being tried. The court overruled the motion as one for a nonsuit, saying that it would entertain a motion later. When the case closed, defendant’s counsel moved to instruct the jury in favor of defendant, on the ground that the court had no jurisdiction, because it had not been proved that the law of Cuba gave any right of action on the facts in evidence. This motion was denied and exception was duly taken and allowed. After verdict in favor of the plaintiff, defendant’s counsel, on the same ground, moved to set aside the same and enter judgment for defendant, notwithstanding the verdict. In denying this last motion, the learned judge of the court below delivered an interesting opinion. The part pertinent to our present purpose, we quote, as follows:
“An action brought in one of our states for damages resulting from a common-law tort committed in another of our states may doubtless be maintained without proof of the lex loci. But where an action to recover damages for a wrongful act committed in another state is maintainable solely under some statutory authority of that state, and not under the common law, there the statutes of the state conferring the right of action must be both pleaded and proven by him who asserts the right. See Wooden v. N. Y. & P. R. R. Co., 126 N. Y. 10. 26 N. E. 1050, 33 L. R. A. 458, 22 Am. St. Rep. 803, and Keep v. Natl. Tubo Co. (C. C.) 154 Fed. 121. In the present case the right of action is not based on any statute of Cuba, and the defendant insists that the common law cannot be presumed to exist in Cuba, inasmuch as that country was formerly a Spanish colony.
“But, as above stated, the defendant has filed the plea of the general issue only. The declaration alleges what, according to the lex fori, is actionable negligence oil the part of the defendant. The defendant by pleading the general issue has not denied the legal sufficiency oil the allegations of the declaration. If the lex loci delicti does not give to the plaintiff a right of action, that defense should have been presented by a special plea and supported by proofs offered by the defendant. I do not think it was obligatory on the part of the plaintiff to set forth in his declaration in express terms what the special law of Ihe republic of Cuba on the subject of actionable negligence may be. lie had the right to set forth a cause of action which, according to the law of the forum, would be complete, and In the event of a conflict between the lex loci and the lex fori, the defendant ought to have shown by a proper plea that under the lex loci the plaintiff acquired no right of action.”
I cannot take this view of the rights of the defendant in this case. In the first place, there is nothing in either pleadings or proofs to show that the plaintiff was clothed with a right of action under any law of the republic of Cuba. In the next place, how are we to know, if there is any right of action at all, that it is not conferred by a statute whose limitations may be such as to render it not transitory, as was the case in Slater v. Mexican Natl. Railroad Co., supra? There is nothing upon which to found the statement of the learned judge of the court below, that “in the present case, the right of action is not based on any statute of Cuba.” If presumption were allowable *384as to this, the only reasonable one would be, that whatever right of action the plaintiff was clothed with, woud be, as in Mexico and other Latin countries, derived from the written law of a civil code. As we have already said, there could be no presumption that the common law, as enforced in the federal court for the district of New Jersey, was in force in Cuba, where the accident happened, and we cannot see how the plea of the general issue could relieve plaintiff from fully establishing the cause of action upon which he had brought suit. It would, indeed, be a hard rule that would compel the defendant, by affirmative plea and testimony, to assume the burden of proving a negative, by showing that there was no law justifying the action in Cuba, if it is to be considered a question of jurisdiction, that question can always be raised in any form and at any stage of the trial. But the term “jurisdiction” is somewhat vague and elusive. Courts may have general jurisdiction of the parties and subject-matter of a suit, and yet will not further entertain it when no cause of action is shown, and the word “jurisdiction” is sometimes loosely applied in that sense.
It is not necessary, therefore, to deal with this case as one technically of jurisdiction, or to consider how it should be questioned, whether by demurrer or plea. The plaintiff comes into the court below, in New Jersey, declaring that he had suffered damage by reason of certain alleged negligent acts committed by the defendant in Cuba. Under a plea of the general issue, he produces testimony, tending to prove the acts alleged, but offers no proof that said alleged negligent acts constituted a cause of action in Cuba. Why should not the defendant have the right to require that he should complete his proof, by fully establishing his cause of action, and where he has failed to do so, to demand either that the case be dismissed, as in an ordinary case of failure of proof, or, that peremptory instructions upon all the evidence be given to the jury? The lex fori cannot help the plaintiff, as the right of the plaintiff and the obligation of the defendant must exist under the lex loci, or not at all.
As the federal courts will take judicial notice of the laws of the several states composing the Union, it would not be necessary, in a case like the present, to allege or prove the law of a state different from that of the forum, and it will be presumed, in the absence of proof to the contrary, that, in countries where the common law of England prevails, the lex loci is the same as the lex fori. Such a presumption, however, takes the place of proof, is a kind of proof, and is founded upon known probabilities, and is very unlike a legal fiction which exists independently of all probability and even of known facts. Here, outside the region of recognized probability upon which to found a presumption, the proposal is to presume the plaintiff’s whole case — its entire foundation — as if, in an action upon an express contract, the existence of the contract itself were asked to be presumed— something quite different from indulging a presumption merely for an incidental purpose in the course of, and for the advancement of a trial. It is true that we may presume that in all civilized countries, negligence is unlawful, but it is another and quite different thing to presume that the “law of negligence” is in all respects identical in all of them. No other subject is so fruitful of litigation or more prolific *385of nice distinctions. While it is very likely that harmful negligence is held to be culpable wherever legal wrongs are redressed, it is very unlikely that the law in respect to torts, in states governed by the civil code, coincides with, and is without variance from, that where the common law prevails. Presumptions are resorted to for convenience in the administration of law, and in any case and for any purpose it is only the probable, and never the improbable, which the law ventures to assume. I know of no authority questioning these propositions and of no decision binding upon this court that controverts the logical conclusion therefrom.
There is no reason of public policy or comity which requires the courts of this country to relax their rules of procedure, so as to encourage or invite those who suppose themselves clothed with rights of action under foreign laws to litigate them in our courts. Nor is there any hardship, in a case like the present, where the plaintiff omits or declines to fully allege or prove his cause of action, in remitting him to the country by whose laws, and by whose laws alone, his right of action exists. Nor can the plaintiff complain, who seeks to enforce in the courts of this country, in an action of tort, an obligation which if it exists at all, depends absolutely for its existence upon a foreign law% that he should be required to so equip himself as to be able to allege and prove what that foreign law may be.
I think that, in the rulings of the court below upon these questions, there was error, and that the judgment below should be reversed.