Appendix — Walton v. Arabian American Oil Co.

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APPENDIX A

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Opinion

UNITED STATES COURT OF APPEALS

For Tue Seconn Cinevir

ei I acts

No. 291—October Term, 1955,

(Argued March 15, 1956 Decided May 15, 1956)

Docket No, 23987

~~ we

Leo Watton,

Plaintiff-A ppellant,

—V.—

ARABIAN AMERICAN Or, Company,

Defendant-Appellee.

Before:

Frank, Lumparp and WaTERMAN,

Circuit Judges

———— + Geo—__ —_

Appeal from a judgment, of the United States District

Court for the Southern District of New York, entered by

Judge Bicks, Affirmed.

——_— © @e— ——

DTS Re io So PEAY

;

[

Opinion

O’Nen., Hiecins & Larro (New York, New

York), Attorneys for Plaintiff-Appellant.

Remiiy & Remy (New York, New York), Aftor.

neys for Defendant-Appellee.

—-——- — #@e —_——_—

Frank, Circuit Judge.

Plaintiff is a citizen and resident of Arkansas, who,

while temporarily in Saudi Arabia, was seriously injured

when an automobile he was driving collided with a truck

owned by defendant, driven by one of defendant’s em-

ployees. Defendant is a corporation incorporated in Dela-

ware, licensed to do business in New York, and engaged in

extensive business activities in Saudi Arabia. Plaintiff’:

complaint did not allege pertinent Saudi Arabian “law,”

nor at the trial did he prove or offer to prove it. Defend:

ant did not, in its answer, allege such ‘‘law,’’ and defend-

ant did not prove or offer to prove it. There was evidence

from which it might have been inferred, reasonably, that,

under well-established New York decisions, defendant

was negligent and therefore liable to plaintiff. The trial

judge, saying he would not take judicial notice of Saudi-

Arabian ‘‘law,’’ directed a verdict in favor of the defend:

ant and gave judgment against the plaintiff.

1, As jurisdiction here rests on diversity of citizenship,

we must apply the New York rules of conflict of laws:

It is well established by the New York decisions that the

‘substantive law’’ applicable to an alleged tort is the

‘‘law’’ of the place where the alleged tort occurred. See,

1.—Klaxon Co. vy. Stentor Electric Mig. Co. tnc., 313 U. S. 487.

Opinion

eg., Conklin v. Canadian-Colonial Airways, Inc., 266 N. Y.

244, 248. This is the federal doctrine; see e.g., Slater v.

Mexican National Railroad Co., 194 U.S. 120; Cuba R. Co.

vy, Crosby, 222 U. S. 473. This doctrine is often said to be

based on the notion that to hold otherwise would be to

interfere with the authority of the foreign sovereign.

It has been suggested that, where suit is brought in an

American court by an American plaintiff against an Amer-

ican defendant, complaining of alleged tortious conduct by

the defendant in a foreign country, and that conduct is

tortious according to the rules of the forum, the court, in

some circumstances, should apply the forum’s tort rules.

See Morris, The Proper Law of a Tort, 64 Harv. L. Rev.

(1951) 881 (criticizing, inter alia, Slater v. Mexican Na-

tional Railroad, 194 U. S. 120)" There, and in 12 Modern

L. Rev. (1949) 248, Morris decries, as ‘‘mechanical juris-

prudence,’’ the invariable reference to the ‘‘law’’ of the

2—See, eg., American Banana Co. v. United Fruit Co., 213 U. S.

347, 350.

A variant but related notion is that the foreign sovereign alone has

the power to create a legal obligation resulting from an act done

within the territory over which it has “jurisdiction,” and that, if that

sovereign does create such an obligation, that obligation accompanies

the person of the defendant everywhere. See, eg., Western Union Tele-

graph Co. v. Brown, 234 U. S. 542, 547; Loucks v. Standard Oil Co.

of N. Y., 224 N. Y. 99. For criticisms of this view, see, e@g., Cook,

The Logical and Legal Bases of the Conflict of Law (1942) 7, 311 et

seq.; Dodd, 39 Harv. L. Rev. (1926) 533, 536-537.

For a different view, see. eg. Judge Learned Hand in Guiness v.

Miller, 201 Fed. 768, 770; Direction der Disconto-Gesellschaft vy. U.S

Steel Corp., 300 Fed. 741, 744.

2a—Cf. Wightman, J., and Willes, J., in Scott v. Lord Seymour, 1 H

& C 219, 233-234, 236, 158 Eng. Rep. 865, 871-873, cited in the dissenting

opinion in Slater v. Mexican Nat. R. R. Co., 194 U. S. at 132.

I eR

LOSES LLANE ALA EI IT 6

eee

Pas

Opinion

place where the alleged tort happened.” There may be

much to Morris’ suggestion; and a court—particularly with

reference to torts, where conduct in reliance on precedents

is ordinarily absent’—should not perpetuate a doctrine

which, upon re-examination, shows up as unwise and un-

just. Although in a diversity case a federal court must

apply the ‘‘substantive”’ conflict rules of the state in which

the court sits, that duty perhaps does not require accept-

ance of state court decisions which are clearly obsolescent;

see the concurring opinion of Mr. Justice Frankfurter in

Barnhardt v. Polygraphic Co., Inc. U. S. (January

16, 1956)." But we see no signs that the New York de-

cisions pertinent here are obsolescent.’

2. The general federal rule is that the ‘‘law’’ of a for-

eign country is a fact which must be proved.’ However,

2b.—Cf. Stumberg. Conflict ef Laws (1951) 201 et seq.

3.—Note the reference in Cuba R. Co v. Crosby, 222 U. S. 473, 480 to

parties who “enter into civil relations” and to a “rule * * * under which

the parties dealt.” Those phrases are awkward in their application to

what we call torts.

4—See,e.g., Seavey, The Waterworks Cases and Stare Decisis, 66 Harv.

I. Rev. (1952) 84; cf. Denning, The Road to Justice (1955) 6, 92, 9%.

4a,—Cf. Cooper v. American Airlines, 149 F. 2d 355, 359 (C. A. 2);

Pierce v. Ford Motor Co, 190 F. 2d 910 (C. A. 4): Trowbridge v.

Abrasive Co., 190 F. 2d 825 (C. A. 3).

5—Were this not a diversity case, it might perhaps be appropriate

to suggest that the Supreme Court should reconsider the accepted doc-

trine (as to the complete dominance of the “law” of the place where the

alleged tort occurred) which seems to have been unduly influenced by

notions of sovereignty a la Hobbes. See Kawananakoa vy. Polyblank,

205 U. S. 349, 353 (referring to Hobbes and Rodin), cited in American

Banana Co. v. United Fruit Co. 213 U. S. 347, 358; cf. Jaffe, Book

Rev., 66 Harv. L. Rev. (1953) 939, 941 as to the reification of the

“notion of power.”

6.—See, e.g., Black Diamond S.S. Corp. v. Ropert Stewart & Sons, 336

Opinion

inder F. R. C. P. 43 (a), a federal court must receive evi-

lence if it is admissible according to the rules of evidence

yf the state in which the court sits. At first glance, then,

it may seem that the judge erred in refusing to take ju-

licial notice of Saudi Arabian ‘‘law’’ in the light of New

York Civil Practice Act Section 344-a.2 In Siegelman v.

Cunard White Star, 221 F. 2d 189, 196-197 (C. A. 2), apply-

ing that statute, we took judicial notice of English ‘‘law’”’

which had been neither pleaded nor proved. Our cecision,

in that respect, has been eriticized;’ but it may be justified

on the ground that an American court can easily compre-

hend, and therefore, under the statute, take judicial notice

U. S. 386, 396-397; Cuba R.R. Co. v. Crosby, 222 U. S 473, 479;

Liverpool Steam Co. v. Phenix Ins. Co., 129 U. 5, 397; U. S. v. Wiggins.

14 Pet. (39 U. S.) 334; Church v. Hubbart, 2 Cranch (6 U. 5.) 187,

236-237: Liechti v. Roche, 198 F. 2d 174 176 (C. A. 5); U. S. ex rel.

Zdunic v. Uhl, 137 F. 2d 858, 861 (C. A. 2); Dickerson v. Matheson,

50 Fed. 73, 76 (C. A. 2).

7.—It reads, in part:

“A. Except as otherwise expressly required by law, any trial or

appellate court, in its discretion, may take judicial notice of the

following matters of law:

1. A law, statute, proclamation, edict, decree, ordinance, or the

unwritten or common law of a sister state, a territory or other

jurisdiction of the United States, or of a foreign country or

political subdivision thereof. * * *

C. Where a matter of law specified in this section is judicially

noticed, the court may consider any testimony, document, infor-

mation or argument on the subject, whether the same is offered by

counsel, a third party or discovered through its own research.

D. The failure of either party to plead any matter of law spec-

ified in this section shall not be held to preclude either the trial

Or appellate court from taking judicial notice thereof.”

8—Busch, When Law is Fact, 24 Fordham L. Rev. (1956) 646; cf.

Sommerich and Busch, 38 Cornell L. Rev. (1953) 125; U. S. v. District

Opinion

of, English decisions, like those of any state in the United

States.° However, where, as here, comprehension of for-

eign ‘‘law’’ is, to say the least, not easy, then, according

to the somewhat narrow interpretation of the New York

statute by the New York courts,” a court ‘‘abuses”’ its dis-

cretion under that statute perhaps if it takes judicial notice

of foreign ‘‘law’’ when it is not pleaded,” and surely does

so unless the party, who would otherwise have had the

burden of proving that ‘‘law’’, has in some way ade-

quately assisted the court in judicially learning it.”

Director of Immigration, 106 F. 2d 14, 20 (C. A. 2); U. Sv. Uhl, 137

F. 2d 858 (C. A. 2).

9—For a different possible justification, see Busch, loc. cit. at 649.

An American court may go astray even in taking judicial notice of

English “law.” The similarity in language may be deceptive by conceal-

ing significant differences. Indeed, just because the English language

appears the same as the American language (although it is not), an

American may understand the former less adequately than he under-

stands German or French, which is more obviously “foreign” and dif-

ferent. See Anon Y. Mous, The Speech of Judges, 29 Va. L. Rev. (1943)

625, 628.

Moreover, the taken-for-granted, unexpressed, background assump-

tions of English judges and lawyers differ from the unspoken assump-

tions of American judges and lawyers, and thus may well induce serious

misunderstandings, Holmes, J., noted the baffling character of such

tacit assumptions in a foreign ‘system, like that of Puerto Rico; see

Diaz v. Gonsolez, 261 U. S. 102, 105-106. Tacit English assumptions

may be even more baffling to an American.

9a.—For criticism of this narrow interpretation, see Nussbaum, Prov-

ing the Law of Foreign Countries, 3 Am. J. of Comp. Law (1954) 60-62;

cf. Nussbaum, The Problem of Proving Foreign Law, 50 Yale L. J.

(1941) 1018, ‘1023.

10.—Greiner v. Freund, 286 App. Div. 996; Arams y. Arams, 182 Mise.

328; see also the articles cited in note 8, supra.

11—Sonnensen vy, Panama Transport Ca. 298 N. Y. 262; Berg v.

Oriental Consol. Mining Co., 70 N. Y. S (2d) 19.

Opinion

3. Plaintiff, however, argues thus: The instant case in-

volves such rudimentary tort principles, that the judge,

absent a contrary showing, should have presumed that

those principles are recognized in Saudi Arabia; therefore

the burden of showing the contrary was on the defendant,

which did not discharge that burden.” But we do not agree

that the applicable tort principles, necessary to establish

plaintiff’s claim, are ‘‘rudimentary’’: In countries where

the common law does not prevail, our doctrines relative to

negligence, and to a master’s liability for his servant’s

acts, may well not exist or be vastly different. Conse-

quently, here plaintiff had the burden of showing, to the

trial court’s satisfaction, Saudi Arabian ‘‘law.’’ #

This conclusion seems unjust for this reason; Both the

parties are Americans. The plaintiff was but a transient

in Saudi Arabia when the accident oceurred and has not

been there since that time. The defendant company en-

gages in extensive business operations there, and is there-

fore in a far better position to obtain information concern-

ing the ‘‘law’’ of that country." But, under the New York

decisions which we must follow, plaintiff had the burden.

_— ——— —

12—Cuba R. Co. v. Crosby, 222 U. S. 473, 478; Industrial Export &

Import Corp. v. Hongkong & Shanghai Banking Corp. 302 N. Y. 342,

349-350; Ehag Eisenbahnwerte H.A. v. Banca Nat, 306 N, Y. 242, 249;

Arams vy. Arams, 182 Misc. 328.

13.—See Arams v. Arams, 182 Misc. 328, and the other cases cited in

the preceding footnote; sce also Whitford v. Panama R, Co., 23 N. Y.

465; Crashley v. Press Pub. Co., 179 N. Y. 27, 32-33; E. Gerli & Co. v.

Cunard SS Co., 48 F. 2d 115, 117 (C. A. 2); Ozanic v. U. S., 165 F, 2d

738, 744 (C. A. 2).

13a—See Nussbaum, 3 Am. J. of Comp. Law (1954) 60, 62; Nussbaum,

30 Yale L. J. (1941) 1018, 1043.

Opinion

As he did not discharge it, a majority of the court holds

that the judge correctly gave judgment for the defendant.

4. In argument, plaintiff’s counsel asserted that Saudi

Arabia has ‘‘no law or legal system,’’ and no courts open

to plaintiff, but only a dictatorial monarch who decides

according to his whim whether a claim like plaintiff’s shall

be redressed, «e., that Saudi Arabia is, in effect, ‘‘uncivil.

ized.’’ According to Holmes, J.—in Slater v. Mexican Na-

tional R. Co., 194 U.S. 120, 129, in American Banana Co. y.

United Fruit Co., 213 U. ‘SN 347, 355-356, and in Cuba R.

Co. v. Crosby, 224 U.S. 473, 478—the lex loci does not apply

‘‘where a tort is committed in an uncivilized country”? or

in one ‘having no law that civilized countries would recog.

nize as adequate.’’ If such were the case here, we think

the New York courts would apply (and therefore we should)

the substantive ‘‘law’’ of the country which is most closely

connected with the parties and their conduct—in this case,

American ‘‘law.’’" But plaintiff has offered no data show-

ing that Saudi Arabia is thus ‘‘uncivilized.’’ We are loath

to and will not believe it, absent such a showing.

14—Cf. Dicey, Conflict of Laws (2d ed.) 726, cited in American

Banana Co. v. United Fruit Co., 213 U. S. 347, 356. The latest or 6th

edition of Dicey (1949) 805 repeats the statement.

l4a.—This is in line with the idea that the “proper law” is that of the

place of paramount contacts, as to which see Cheatham, Goodrich

Griswold and Reese, Cases and Materials on Conflict of Law (3d ed.

1951) 420 et seq; cf. 204, 239-240; Cavers, A Critique of The Choice

oi Law Problem, 47 Harv. L. Rev. (1933) 173, 191-193.

As the tort rules, pertinent here, of New York, Delaware ané

Arkansas are doubtless substantially similar, there would be no need tc

choose one or the other.

Opinion

5. The complaint in this action was filed on May 10,

1949, Pre-trial hearings were held before Judge Conger

on December 2, 1952; January 7, 1953; March 31, 1953;

and April 10, 1953, At these hearings the question of prov-

ing Saudi-Arabian law was discussed. When the case came

on for trial on November 7, 1953 Judge Bicks indicated

that in his view the burden was on the plaintiff to prove

the foreign law. When the plaintiff’s counsel said that

he was not prepared to prove the law of Saudi-Arabia,

Judge Bicks proposed that the case be adjourned long

enough to allow the plaintiff to prepare such proof. It

was agreed that the case be put over for two days to

enable the plaintiff to decide whether to request an ad-

journment for that purpose,

When the hearing resumed on November 9, plaintiff’s

counsel unequivocally took the position that he did not

wish to prove the foreign law and wanted no adjournment.

He chose to rely on the applicability of New York law.

To that end he proposed that he proceed to present his

case in order to make a record for appeal. The plaintiff *s

evidence as to liability was presented and on a proper

motion the judge dismissed the complaint. He specifically

ruled that he would not take judicial notice of the law of

Saudi-Arabia and that the plaintiff's failure to prove that

law required dismissal.

Since the plaintiff deliberately refrained from establish-

ing an essential element of his case, the complaint was

properly dismissed. The majority of the court thinks that,

for the following reasons, it is inappropriate to remand

the case so that the plaintiff may have another chance: He

had abundant opportunity to supply the missing element

and chose not to avail himself of it. It does not appear

whether Judge Bicks or counsel for the parties considered

BRN

2 uae Se MRR a ON CE RS yx

ae ER

Opinion

the application of Section 344-a of the New York Civil

Practice Act. Since Judge Bicks specifically determined

that he would not take judicial notice of the Arabian law,

he must have considered that in some circumstances he

might take judicial notice of foreign law. But in any

event, as we have pointed out, it would have been an abuse

of discretion under the New York cases to take notice of

the foreign law here. The judgment of dismissal must

therefore be affirmed.

The writer of the opinion thinks we should remand for

this reason: Apparently neither the trial judge nor the

parties were aware of New York Civil Practice Act, Sec-

tion 344-a; consequently, in the interests of justice,” we

should remand with directions to permit the parties, if

15—Estho v. Lear, 7 Det. (32 U. S.) 130; Ford Motor Co. v. NLRB, 305

U. S. 364, 373; U. S. v. Rio Grande Dam & Irrigation Co,, 184 U. S

416, 423-424; Porter v. Leventhal, 160 F. 2d 52, 59 (C. A. 2) and

cases there cited; Benz v. Celeste Fur Dyeing & Dressing Corp. 136

F. 2d 845 (C. A. 2); Nachman Spring-Filled Corp. v. Kay Mfg. Co.

139 F. 2d 781, 787 (C. A. 2).

See also Usatorre v. The Victoria, 172 F. 2d 434 (C. A. 2); Son-

nenson v. Panama Transport Co., 298 N. Y. 262, 267; Sommerich, 4

Am. J. of Comp. Law (1955) 453.

Opinion

they so desire, to present material which may assist the

trial judge to ascertain the applicable ‘‘law’’ of Saudi-

Arabia.”

Affirmed,

16—Or that it has no “civilized” legal system; see point 4 of the

text.

Nussbaum, 3 Am J. of Comp. Law (1954) 60, 63-64—criticising

Usatorre v. The Victaria, 172 F. 2d 434 (C. A. 2)—points to an im-

portant fact: the prohibitive expense to a party of modest financial

means in obtaining an expert to explain foreign “law.” Subsequently

(pp. 66-67), Nussbaum suggests that the trial judge call his own

expert; the judge, says Nussbaum, would require the parties to advance

the expert's fee, or, “if this is not feasible, the court (hence eventually

the losing party), may be charged with the fee as part of the court's

business.” But, as matters now stand; this solution is not feasible: In

a federal criminal case, a trial judge may call upon his own expert

whom the government will pay; see Criminal Rule 28 However, in a

civil case (at any rate, one to which the government is not a party) the

government has no authority to pay an expert; and the use of the

device of taxing the expert's fee as part of the costs to the losing

party may be beyond the judge's power (absent a statute); in any

event, the expert will go unpaid if the losing party has not the funds

to pay such costs.

In the instant case, a letter from Hon. Raymond T. Yingling, As-

sistant Legal Adviser of the U. S. Department of State, suggests to

the writer that, with little or no expense, the parties probably could

procure some information as to the pertinent legal rules of Saudi

Arabia; perhaps, also, iurther information could be procured without

expense from officials of The United Nations.

{

APPENDIX B

—-— @@eoe -—

Judgment

UNITED STATES COURT OF APPEALS

For THE Seconp Crecuir

At a Stated Term of the United States Court

of Appeals, in and for the Second Circuit,

held at the United States Courthouse in

the City of New York, on the 15th day of

May one thousand nine hundred and fifty-

six.

Present:

Hon. Jerome N. Frank,

Hon. J. Epwarp Lumnarp,

Hon. Sterry R. WaTeRMAN,

Circuit Judges.

-~ wt

ove

Leo WALTON,

Plaintiff-Appellant,

—Y

ARABIAN AMERICAN Or, COMPANY,

Defendant-Appellee.

"~~

7oe

Appeal from the United States District Court for the

Southern District of New York.

Judgment

The cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by counsel,

ON CONSIDERATION WHEREoF, it is now hereby ordered,

adjudged, and decreed that the judgment of. said District

Court be and it hereby is affirmed.

A. DANIEL FUSARO,

Clerk.

Filed:

May 15, 1956

A, Dante. Fvsaro,

Clerk.

(13049)

INDEX

—_—o—

PAGE

Statement Under Rule 15 (Db) ccc sasstonniaieoks 1

Complaint ........ccccseecsesssssesseseneensenenneneeseneseenensnseeseenennsnennensnes 2

DPBOE accesesseresseserescesonsssrsressvecosecsncecenscusensnsnsaccoosensceanssonesennsese 6

TestimOmy ...cecsecssssesecessseseseeseesesnensnnensnesnestsnesnsaeanenseneseaennensens i)

Motion to Dismiss .............sssccsscsesessesssessensesesessssensessseeserenss 45

TOCIBRON —.accerscccsccescscscscccessvscnesssnssonscscenenssssonsensanscvessocsesensenesees 46

Judgment Appealed From .....sscsessesesesesseeneenseensneessescess 47

Notice of Appeal .....c.ccccccescsesssesesseesnsenssnestsnsnenenenransnenensese 48

ecient einieicintinanine

TESTIMONY

—o—

For Plaintiff

Leo W. Walton,

DAPOCE ccccseccccccsessscsrccsccscsevscsnseseccnssscnnsensensessssesensessssnsosoenes 3]

———___—_4 § oe

United States Cuurtof Appeals

For THE Seconp Circuit

Pe See

Civil Action No, 50-170

ee vn

Leo Watrox,

Plaintiff-A ppellant,

—against—

ARABIAN AMERICAN OIL ComPayy,

Defendant-Appellee.

Statement Under Rule 15 (b)

Action commenced by plaintiff in the United States

District Court, Southern District of New York, by the

filing of a complaint and the issuance of a summons, and

the service of the summons and complaint on the de-

fendant on May 10, 1949.

Issue was joined by the service and filing of the de-

fendant’s answer on June 23, 1949.

The issues were tried before the Hon, Alexander

Bicks and a jury on November 7 and 9, 1955. At the

close of the plaintiff’s case the defendant moved to dis-

miss the plaintiff’s complaint, and the Trial Court

granted the defendant’s motion to dismiss the plaintiff’s

complaint,

Judgment was entered in favor of the defendant on

November 15, 1955.

The plaintiff filed his notice of appeal from each and

every part of the judgment on November 30th, 1955.

MS PERI I GLEE AE SEALY SING STP Dee ta: |

Complaint

The plaintiff appeared by his attorneys, O’Netu,

Hieeixs & Larro, of 369 Lexington Avenue, New York

City, N. Y.

The defendant appeared by its attorneys, Cuarke

Reitiy, of 233 Broadway, New York City, N. Y.

--—— —- ¢@e —-----—

Complaint

UNITED STATES DISTRICT COURT

SovTHErN Disrricr or New York

Civil Action No, 50-170

Plaintiff demands a trial by jury.

Leo Watton,

Plaintiff,

—against—

AraBIAN AMERICAN Or. Company,

Defendant

Plaintiff complaining of the defendant alleges a

follows upon information and belief:

1. That at all the times herein mentioned the defend-

ant, Arabian American Oil Company, was and now is 8

foreign corporation organized under and existing by

virtue of the laws of the State of Delaware.

Lal

Complaint

2. That prior to the institution of this action the

defendant, pursuant to the General Corporation Law of

the State of New York applicable to foreign corpora-

tions, filed a statement and application for authority to

do business within the State of New York, and received

authority and qualified to do business within the State

of New York from the Secretary of State of the State

of New York, and designated the Secretary of State of

the State of New York as its agent upon whom all

process in any action or proceeding against it may be

served within this State, and that the same is now in full

foree and effect.

3. That the defendant, Arabian American Oil Com-

pany, is engaged in business in the City, County and

State of New York, and within the territorial limits of

the jurisdiction of the United States District Court for

the Southern District of New York.

4. That the plaintiff, Leo Walton, is a citizen and

resident of the State of Arkansas.

d. That jurisdiction herein is founded upon diversity

of citizenship between the plaintiff and defendant, in that

the plaintiff is a citizen and resident of the State of

Arkansas and the defendant is a citizen of the State of

Delaware. That the amount in controversy, exclusive of

interest and costs, exceeds the sum of $3,000.00.

6. That on January 5, 1947, and at the times and

places herein mentioned, at Dhahran, Saudi Arabia, a

Saudi Arab, A. Rahman bin Khidhir, bearing defendant’s

identification No. 21951, was the agent, servant and em-

ployee of the defendant.

2 stipes PON NEL ae

bck

Complaint

7. That at the time and place herein mentioned the

defendant owned Diamond T Truck No. 2X363.

8. That at the time and place herein mentioned the

defendant by its agents, servants and employees, operated,

maintained and controlled Diamond T Truck No. 2X363,

which was being Operated on the bus-ness of said

defendant.

9. That on January 5, 1947, at the times and places

herein mentioned, said Saudi Arab, A. Kahman bin

Khidhir, bearing defendant’s identification No, 21951, was

operating Diamond T Truck No. 2X363 as the agent,

servant and employee, and on the business of the de-

fendant, Arabian American Oil Company.

10. That on January 5, 1947, on the Dhahran—Al

Khobar Road, Dhahran, Saudi Arabia, the defendant’s

motor vehicle aforesaid came in contact and collision with

a motor vehicle in which this plaintiff was riding.

11. That at said time and at said place the defend-

ant, its agents, servants and employees, so negligently

and carelessly operated the aforesaid motor vehicle bear-

ing No. 2X363 at a dangerous and excessive rate of speed,

without keeping a vigilant lookout and without giving

any adequate warning Of its approach, and so negligent-

ly and carelessly failed and omitted to properly guide

and control the same, and so negligently and carelessly

caused and permitted said motor vehicle to be and re-

main upon the wrong side of the highway, and so neg-

ligently and carelessly failed and omitted to have proper

lights, and so negligently and carelessly maintained the

Complaint

brakes and appliances of said motor vehicle in a de-

fective, dangerous and worn-out condition, that as a re-

sult thereof said motor vehicle came in violent contact

and collision with the motor vehicle in which the platn-

tiff was riding, and he thereby sustained serious, severe,

painful and permanent injuries to his body, health, or-

gans, nerves and nervous system, and he has spent and

will be obliged to spend sums of money in endeavoring

to cure himself of his said injuries, and he has lost and

will lose his wages at his usual vocation, all to his

damage in the sum of $150,000.00, and all being caused

as a result of the negligence of this defendant, its agents,

servants and employees, and without any negligence on

the part of the plaintiff in anywise contributing thereto.

Wnuererore, plaintiff demands judgment against the

defendant in the sum of $150,000.00, together with the

costs and disbursements of this action.

O’NEILL, HIGGINS & LATTO,

By Joun V. Hicerns,

(A member of the firm),

Attorneys for Plaintiff,

369 Lexington Avenue.

Manhattan, New York City.

Answer

UNITED STATES DISTRICT COURT

Sournern Disrricr or New York

[SAME TITLE]

2oe-—

Defendant answering the complaint by CLarke &

Remy, its attorneys, respectfully shows to this Court

and alleges:

First; Admits the allegations contained in para-

graphs marked ‘‘1’’, ‘*2°’, **3’? and ‘*7’’ of said com-

plaint.

Second; Answering paragraphs of said complaint

marked ‘‘4’’ and ‘*5’’, the defendant admits that it is

a citizen of the State of Delaware and that the amount

in controversy, exclusive of interest and costs, exceeds

the sum of $3,000.00, and except as herein expressly

admitted, alleges that it is without knowledge or informa-

tion sufficient to form a belief as to the truth of the

allegations contained in said paragraphs of the com-

plaint.

Third; Answering paragraph of said complaint mark-

ed ‘*6’’, the defendant admits that on January 5, 14%,

and at the times and places mentioned in the complaint,

A. Rahman bin Khidhir, with identification No. 21951,

was an employee of this defendant, and except as herein

expressly admitted, denies each and every allegation

contained in said paragraph of the complaint,

Answer

Fourth: Answering paragraph of said complaint

marked ‘‘8’’, the defendant admits that at the time and

place mentioned in the complaint, truck No. 2X363 was

operated by one of its employees and on the business

of this defendant, and except as herein expressly ad-

mitted, denies each and every allegation contained in

said paragraph of the complaint.

Fifth: Answering paragraph of said complaint mark-

ed ‘9’, the defendant admits that at the times and

places mentioned in the complaint, A. Rahman bin

Khidhir, identification No. 21951, operated truck No.

2X363, as an employee of the Arabian American Oil

Company and on the business of said Company, and

except as herein expressly admitted, denies each and every

allegation contained in said paragraph of the com-

plaint.

Sixth: Answering paragraph of said complaint mark-

ed **10’’, the defendant admits that on January 5, 1947,

on the Dhahran-Al Khobar Road, Dhahran, Saudi Arabia,

the defendant’s motor vehicle, bearing No. 2X363, was

in contact with a motor vehicle which was then and

there operated by Leo Walton, the plaintiff herein, and

except as herein expressly admitted, denies each and

every allegation contained in said paragraph of the

complaint.

Seventh: Denies each and every allegation contained

in paragraph numbered 11"? of said complaint.

As a FIRST, SEPARATE AND DISTINCT DEFENSE TO THE

ALLEGED CAUSE OF ACTION:

Eighth: Defendant alleges that the injuries com-

eT ae hans |

Answer

plained of in the complaint at the time and place or

on the occasion mentioned therein were caused in whole

or in part or were contributed to by the negligence and

want of care of the plaintiff and not by any negligence

or fault or want of care on the part of the defendant.

Wuenrerorg, defendant demands judgment against the

plaintiff dismissing the complaint herein, together with

the costs and disbursements of this action.

SLARKE & REILLY,

By TxHomas A, CLARKE,

(A member of the firm)

Attorneys for Defendant,

233 Broadway,

Manhattan, New York City.

Testimony

UNITED STATES DISTRICT COURT

SoutTHErN Distrnuict or New York

Civil Action No, 50-170

Leo WaLrTon,

—agaimst—

AraBiaAN AMERICAN O1L Company,

Defendant

Before:

Hon. ALEXANDER BIcks,

District Judge.

New York, November 7, 1990,

10:30 o’clock a. m.

APPEARANCES:

O’New., Hiceins & Larto, Esgs.,

Attorneys for Plaintiff;

Joun V. Hicartns, Ese.,

Of Counsel.

CLarke & Reitiy, Esqs.,

Attorneys for Defendant;

Joun G. Remy, Ese.,

Of Counsel.

—_—@—

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The Court: Gentlemen, in examining the plead-

ings, I note that this is a claim based on negligence

which arose in Saudi Arabia.

Will there be any conflict between you as to what

the law of Saudi Arabia is?

Mr. Higgins: I will answer you, your Honor, that

as far as the plaintiff is concerned we have not pleaded

the law of Saudi Arabia; that we have pleaded an action

in tort and are prepared to proceed on the basis of

common law negligence and on the established law

of this country as laid down in all of the cases.

With reference to Judge Holmes’ expression in the

Cuba Railway case, 222 U. S., it is said in dealing with

rudimentary principles of law, which he mentioned as

contracts and torts committed abroad, that the courts

would assume a liability to exist.

In another case it has been said, in the summary

of the law, that if a tort is alleged it would be as-

sumed that in any civilized country the obligation to

respond for the tort would be recognized and would give

rise to a right of action and liability.

I say also that I refer to the fact that the plaintiff,

in his pleadings, has nowhere pleaded any foreign law,

and the defendant in its pleadings, in its answer, bas

not pleaded any foreign law, and in order to raise an

issue on the foreign law they have to plead it.

So I say that this is just no different from any

other case that we have. We would testify as to how

this accident happened. They can make any claims

they want as to how they think it happened, and it

is just an issue of negligence and contributory negli-

gence on the part of the defendant.

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Mr. Reilly: It is the defendant’s position that in

this, as in any other case, it is the law of the place

where the accident occurs that governs; that the only

time that the Court can indulge itself in any presump-

tion is when the law of that forum is the same as

the one in which the case is being tried, or this forum,

where it is well known and obvious that the law of

the lex loci follows the common law system.

This obviously is not the fact in this case since there

can be no contention that the law of Saudi Arabia

follows the common law system, and it has never been

held so.

We say that a leading case on the subject, and

one in point, is the case in which Mr. Justice Holmes

wrote an opinion, Cuba Railway Company v. Crosby,

at 222 U. S. 473.

That was a personal injury case, the accident hap-

pening in Cuba. Crosby sued in the United States

daiming that after warning his employer of defective

machinery he was ordered to continue using it and that

repairs would be made later.

The tort alleged was one well known to the common

law.

The complaint pleaded no foreign law and no proof

of the law of Cuba was offered by the plaintiff.

The trial judge applied the common law. A verdict

was reversed and the complaint dismissed since the

plaintiff had not sustained his burden.

There Judge Holmes again reaffirmed what is ele-

mentary, we think, that the lex loci delicti applied, and in

a portion of his opinion said:

‘With very rare exceptions the liabilities of

parties to each other are fixed by the law of the

re a |

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territorial jurisdiction within which the wrong is

done and the parties are at the time of doing it.

That and that alone is the foundation of their

rights.’’

And he then cited the case of American Banana

Company v. United Fruit Company, 213 U. S. 447, the

citation at 406.

And so we say that it is the plaintiff’s burden to

establish that the Saudi Arabian law permits a recovery

from the employer under the circumstances here.

The Court: Mr. Reilly, while Mr. Higgins hasn’t

so expressedly stated it, 1 am sure he recognizes that

it is the established law, lex loci delicti, which will govern

in this case.

The problem is, however, upon whom is the burden

of proving what that law is, or may the Court assume

that the law of Saudi Arabia is the same as the law

of the State of New York?

Mr. Higgins makes the point that he did not plead

foreign law. That is not of significance because you

did not have to plead the legal basis for your claim.

You just set forth the facts, the claim upon which

relief is to be granted, and it was not necessary to

plead foreign law at all.

The problem here narrows itself dswn to upon whom

is the burden of proving the law of Saudi Arabia, or

may the Court indulge in the assumption that the law

of Saudi Arabia is the law of New York.

Now in the Court’s research on this problem over

the week-end—anticipating that this problem might arise

—the Court was not able to find a single case where

such an assumption was indulged in, where the action

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was just an ordinary action for negligence.

There is a lot of general language, and it is interest-

ing that both of you distinguished gentlemen rely upon

the same cases in support of your respective positions,

the Cuban Railway case by Mr. Justice Holmes.

It is interesting, too,—and we mustn’t overlook it

—that the language both of you rely on is wholly dictum

in that case.

Now, let us take that language and consider that

as well as the cases that have come down after the Cuba

Railway case.

Mr. Justice Holmes stated, in effect, that if it was

one of the rudimentary torts there would be an as-

sumption that any civilized country would adopt our

law, but there can be no such assumption here—not

because there is any suggestion that Saudi Arabia is

not « civilized country, but we know that it is not

a common law country, and we know, too, that in some

of the Near East countries they have a different rule

of damages, a different measure of damages.

Now the measure of damages, if there is a different

measure of damages in Saudi Arabia, would be a

matter of substantive law, and we would have to apply

that law as well as all the other laws of Saudi Arabia

after we went into the facts of this case.

Now, they may not permit a recovery for so-called

moral damages, that is, pain and suffering. They may

wholly limit it to monetary damages, as some of those

Near Eastern countries seem to do.

The Court, in its independent investigation, and

without the benefit, unfortunately, of briefs by either

counsel, found cases along this line, where there was

the application of the assumption doctrine, so-called,

where there was injury to an American citizen on the

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high seas aboard a foreign-flag vessel.

In the very case you rely on, Mr. Higgins, in an

opinion by Mr. Justice Walters of the New York Supreme

Court, he points out that in Peru and in Brazil re.

covery is not permitted in negligence cases, or that

we will not assume—I don’t recall exactly; it is either

that or that we will not assume that the law of Per

and the law of Brazil, citing two cases there, is the

law, is the same as our common law that we adopt in

New York in ordinary negligence cases.

My view is that the burden will be upon the plaintiff

to establish as a fact the law of Saudi Arabia and

absent such proof the plaintiff will not make out a

case, and will require the complaint to be dismissed.

Off the record.

(Discussion off the record.)

Mr. Higgins: Your Honor has just stated that in

your rule that the plaintiff has the burden of estab-

lishing what the law of Saudi Arabia is, and that you

would proceed on the basis of taking the proof if the

plaintiff was not prepared—the other proof in the event

the plaintiff was not prepared to prove Saudi Arabian

law, to proceed with the other part of the case.

My reply at this moment is this: that the plaintiff

has instituted this action by a complaint which does

not plead Saudi Arabian law, and has relied on plain-

tiff’s contention that the legal doctrine is to the effect

that in a rudimentary tort—negligence certainly is the

most rudimentary of torts—that it would be presumed

that in any civilized country the law would be the same

as here, and that we would try the case on the general

common law doctrine of negligence, saying the plaintiff

has not pleaded any Saudi Arabian law. I also state

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that the defendant’s answer, which is the only other

pleading in this case, does not plead any Saudi Arabian

law or set up any Saudi Arabian law either, and pro-

ceeding on that theory I am in no way prepared at

the moment to introduce any proof on the question

of what the law of Saudi Arabia is.

In view of the plaintiff’s position, there is also a

serious legal question as to whether the plaintiff should

in any way introduce any such proof or even according

to our theory whether he would have the right to intro-

duce any such proof in view of the state of the plead-

ings.

The Court: Do I hear you make any application

Mr. Higgins, or do you stand upon your legal position

and just wish to proceed based upon your legal po-

sition?

Mr. Higgins: At the moment plaintiff is not in a

position to say to the Court that it can have proof to-

day or Wednesday or at the conclusion of any other

proof in this case, because so far as I know the plaintiff

is a witness and the doctor is a witness and the hospital

and other records will be introduced.

The plaintiff would be in no position, even under

your Honor’s ruling, to proceed with any proof of Saudi

Arabian law, of course, which we say, in the position

we take, we should not be obliged to prove or rely

on.

The Court: Well, certainly, Mr. Higgins, the Court

does not want to put the plaintiff in a position where

he is to be deprived of any remedy because counsel

was not prepared to meet this ruling on the law, and

if you think that you need more time. why then, if

ee ee!

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you would like to make an application for an adjourn.

ment we will consider it.

Mr. Higgins: Well, I do, your Honor. I would

like to make an application for an adjournment a week

from Monday to see what we can do on this question,

or see what our position is on it.

The Court: Do you think that will be sufficient

time?

Mr. Higgins: I know it is going to be a difficult

problem. It would be better if I had a month, but |

don’t want to—

The Court: If you want I will send it back to Judge

Ryan on the calendar, and he can assign it then in

the regular way, or he will take such action on your

application for adjournment that he does upon similar

applications.

While this case is in the part before me I should

take action upon an application for adjournment. I am

acting upon the application for adjournment in effect

when I say I will send it back to Judge Ryan’s part,

because I am going to be out of this part at the end

of November, and it appears that you might not be

in a position to have your proof by the end of that

month, so that Judge Ryan might then give you some

day six months or nine months or whatever period he

does then. I am making all these comments, and I should

like to hear from you, Mr. Reilly. You have something

to say about this.

Mr. Reilly: Well, Judge, thanks. I just want to

say one thing to your Honor. In the light of what

has been said, this suit was brought just about a

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few days before the statute here would expire.

Now contrary to what has been said—and [ am

saying this without any feeling—our answer alerted Mr.

O’Neill’s office to the fact that we were raising this

question, but I needn’t point out to your Honor that

no one has to alert that office to anything, and I

think the fact that this litigation has not come up until

this time is significant in itself. It has been pending some

six years.

The Court: Let me see the card on that.

(Produced. )

Mr. Reilly: So as I say, Judge, this matter has

been pending for some six years. During that time,

and, as I say, because of the pleadings of the answer,

which deny any agency on the part of the defendant

here for this act, and likewise and more importantly

there were pretrials held here, and there were pre-

trials held here before Judge Conger for a period of

almost four months. There was no pretrial order.

I just want to say one thing in that connection.

These pretrials were held when this question was not

only mentioned, but to some extent explored.

Now the opinion that Judge Conger expressed was

not dissimilar, As a matter of fact, it was identical

with the opinion that your Honor has expressed, and it

was that a law that applied—aid Judge Conger, as

matter of fact, made inquiry for any showing to the

contrary. Your Honor asked whether or not an order

was made. There was no order made because there

wasn’t any appearance on the part of the plaintiff’s

office at the last two pretrials. At that time the plead-

ings were discussed at some length.

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The Court: Mr. Reilly, pardon me—was the problem

before Judge Conger whether it was lex loci delicti that

applied?

Mr. Reilly: Exactly.

The Court: Or who had the burden of proof?

Mr. Reilly: It was whether the lex loci delicti ap-

plied, and he expressed himself unequivocally—and |

say that now—

The Court: How about the burden of proof? Was

that gone into?

Mr. Reilly: Well, of course, the one that would

have the burden of alleging and proving it, 1 take it,

Judge,—I take it that the decisions are replete with

statements that it is the one who is asserting the cause

of action because, as Judge Holmes said in one of

those cases, he said you could not complain if our

courts refused to meddle with their affairs and remitted

them to the place which established and would enforce

their rights. So it operates both ways.

And at that time it was discussed, and Judge Conger,

as I say, stated it as his observation, and unequivocally,

that it was the lex loci that applied, and they would

have to establish that there were any rights to the

plaintiff onward.

At the last hearing he said, ‘‘You say otherwise.

Let’s see any law or any authority to that effect.’’

There was no appearance at the next two hearings,

and so then the summer came on—the last one was

in April—the summer came on and then nothing further

was done about it, and the case went off the calendar.

That went off the calendar until practically now.

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Mr. Higgins: There was nothing done at the pre-

trial. At that time, Mr. Reilly, I think, submitted a

memorandum in which he said he wanted to amend

his pleadings to plead some Saudi Arabian law. We

objected to it. There was some adjournment of the

pretrial hearing and then they didn’t have any more;

they changed their policy here and there were no pre-

trial hearings. There was never any determination of

it.

Mr. Reilly: Well now, Mr. Higgins, I don’t want

to get into anything on this, but when it was reaching

a point where a decision or an order was to be entered,

your office didn’t show up, and it didn’t show up at

the March hearing and it didn’t show up on April the

10th, both days.

The Court: Mr. Higgins, I know that you are not

making any application for an adjournment other than

in the best of faith. You don’t want to drag this case

out.

Mr. Higgins: No, sir.

The Court: You represent to the Court that you

are not prepared for a ruling that the burden of prov-

ing the foreign law would be upon the plaintiff, and

that therefore you ask for a reasonable adjournment

in order to prepare yourself on the foreign law; is that

correct?

Mr. Higgins: Yes. That is, we have this ruling

here, and your Honor has stated that in the absence

of any proof of a foreign law by the plaintiff that

then the complaint would be dismissed.

The plaintiff is in a twofold position: We have to

ry a |

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look into the question—at the moment I say this to

your Honor: We are not prepared to prove the foreign

law, and before the case starts your Honor wants an

answer as to whether we are going to or not.

Now that answer I cannot give at the moment. That

is why I wanted the adjournment. I wanted to look

into the whole problem.

The Court: Well then for the first subject you

don’t need too much time to look into the subject as to

whether you are going to take whatever appellate re-

view steps that you think you want to, to review the

holding or the decision that the burden is upon the

plaintiff to prove the foreign law?

Mr. Higgins: That is why I asked for the couple

of weeks, originally, because if we went into the other

problem it might be a longer one. I certainly do not

want an adjournment. As far as I am concerned |

say very frankly to your Honor that we were assigned

here to start trial last Friday and my man is im Ar-

kansas. He stated he is in the ice cream business down

there. To be prepared to have re-physical examinations

and everything, I had this man come up, and he actually

came up last Tuesday, so that by the finish of today

he will be in New York, away from his home, for a

full week, and so that I was preparing, fully preparing

the case to proceed to trial.

But as I say, both phases of the problem—I took

the one phase, and certainly under the law as it existed

we were not required to plead it, and secondly the

other problem, if there was any pleading required or

proof required, even if there were a ruling on that—

which 1 still say does not apply to it—that burden

would be on the defendant.

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The Court: I think from this point on this is all

repetitive.

Mr. Higgins: Yes,

The Court: Suppose we put this over until Wednes-

day morning and at that time you will report whether

you want an adjournment for the purpose of proving

foreign law, and then we will consider your application

for an adjournment for that purpose.

If you don’t want an adjournment for that pur-

pose then the ruling will be made as has already been

indicated on this question of law. Then you can bring

it up for review.

Mr. Higgins: All right. Thank you, Judge.

+ ----@@e—-- --—

New York, November 9, 1955;

12:30 o’clock P. M.

Hearine ResumMeED

—

Mr. Higgins: Your Honor, on Monday, when this

case was called for trial your Honor called both counsel!

into chambers and stated that from reviewing the plead-

ings you wondered whether there would be any questions

raised in the case with reference to Saudi Arabian law,

and Mr. Reilly at that time stated that he was raising

the issue that the case should be tried on Saudi Arabian

law and that it was our obligation to prove it.

The minutes will show that both parties argued the

matter before you and that the Court then stated that

in view of the pleadings and its knowledge that the

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case was coming on on Monday it had spent the week-

end reviewing the law and indicated in an oral opinion

that it was the opinion of this Court and would be its

ruling that the plaintiff would be required as part of

its case to prove the Saudi Arabian law.

This was a decision contrary to the position taken

by the plaintiff and we stated to your Honor that it

raised a serious question, and you wondered whether

we were prepared to go ahead and prove the Saudi

Arabian law or whether we were going to rest on our

position as it was, and you gave us an adjournment

until this morning, and since Monday, and of course,

even when this case was started, the plaintiff’s attorneys

gave considerable thought to and a lot of investigation

and research was made as to whether or not it was

essential or proper to allege the law of Saudi Arabia.

Our information then was, and our opinion then

was and is now that there was and is now no law

or legal system in Saudi Arabia. Our information

then was and now is that there was and is none, and

that there is merely a king who exists because of

force majeure or what we more or less call a dictator,

and that there are no courts or legal system in which

the plaintiff could sue for this or any other claim like

it, or any courts at all for that matter, nothing except

what the king or some person whom he may designate

or who represents him to examine into a special claim

and can inform the king what he thought the complaining

parties might be given.

He cannot even collect for doctors’ bills, let alone

his lost earnings, past, present or future; nothing for

his injuries. The king might possibly say that what

they call blood money should be awarded against a wrong

to a driver, and they might order that the driver’s hand

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or arm be cut off or he be imprisoned or something

like that.

Under these circumstances we recognized that there

was no law or legal system or court, and no law which

we could allege or prove, and that is the reason why

we have made no pleading as to the alleged applicable

law of Saudi Arabia, and since that research, and since

Monday, our position is the same today and, of course,

we didn’t plead Saudi Arabian law and neither did the

defendant. So we have taken the position that the

case is one for a court and jury as a radimentary tort

between one citizen of the United States who invokes

indisputable jurisdiction of the United States District

Court of this District as against another citizen of the

United States.

Under these circumstances we take the position that

the plaintiff’s evidence establishes the negligence of the

defendant resulting in great permanent injury to him;

that he should have the opportunity to have his case

determined in this United States District Court, and

judgment awarded in his favor.

But in view of your Honor’s ruling we say frankiy

to you that because of our legal position here we do not

intend today, and there is no use of asking you for any

adjournment in the future for the purpose of proving

any Saudi Arabian law in the plaintiff’s case. We do

and must rest on oar position that in view of the facts

and the situation from our legal standpoint that the case

should be tried according to the rudimentary common

law, and for that purpose I make this suggestion to

your Honor, that we select a jury and that I put the

plaintiff on the stand who will testify as to the es-

sential facts with reference to the happening of the ac-

cident and the place and his injuries, and that at the

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conclusion of the testimony by the plaintiff—and |]

understand also that there are hospital records here

that were brought from Saudi Arabia and part of the

official file, and I can mark them in evidence—and then

state to the Court and on the record that except for

the proof by the medical witness as to the nature, ex-

tent and permanency of the plaintiff’s injuries, that

the plaintiff rests, and that the defendant can then make

his motions, and if your Honor then adheres to your

original decision, the record would be complete.

Mr. Reilly: May it please the Court, this is the

first acquaintance or intimation that I have had from

the plaintiff that this was to be the nature of the ap-

plication made this morning in open court. I didn’t

take it from what had transpired in your Honor’s

chambers last Monday and the opportunity that was

then afforded to Mr. Higgins to make a decision that

this was to be the nature of that decision.

Again I respectfully submit to your Honor in that

connection that the incident that gives rise to this liti-

gation occurred in 1947, in January of 1947; that suit

was not instituted until over two years later, some

two years and eight months or something when, if there

were any statute of limitations applicable that were de-

terminative of the right to bring the action here in New

York, they would have expired.

In any event, since the inception of the suit the

matter has pended before this Court. I do want to

point out now as I did to your Honor in chambers that

there was indication of the position of the defendant in

this case, that indication being impressively created by

the pleadings, which denied any agency on the part of

the defendant in this ease, though admitting that the

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operator of the automobile or truck involved was an

employee, but denying that there was any agency exist-

ing.

Thereafter in the course of the pendency of the

litigation, pretrial hearings came on before Judge Conger

of this court, which pretrial hearings extended over a

period of about four months, when there were certainly

at a minimum four or five such hearings.

The matter of the contentions of the respective parties

was exposed and explored fully, and I say to your

Honer at this time that it was the observation of that

Judge at that time that it was his sense that it would

be the lex loci or that of Sandi Arabia that would govern,

and there were expressions on his part directed to the

plaintiff, that he submit anything of which he was pos-

sessed that would indicate a contrary or opposed po-

sition. t

Nothing was submitted by the plaintiff after these

expressions on the part of that judge who conducted the

pretrial, but as I stated to your Honor in chambers there f|

was no final order entered because on the last two oc- .

easions of the pretrial the plaintiff didn’t appear and 4

there was then no resumption of those pretria! hear-

ings.

I should note for your Honor’s information and the

record that those pretrial hearings were held in 1953

and that in the course of one of them there was an

exchange of memoranda, so that the position of the

defendant and the various contentions with respect to

the applicability of Saudi Arabian law were well es-

tablished.

There have been other motions in this court di-

rected to the same situation as to the applicability of

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that law.

I do want to say, too, that in connection with the

hearing held before your Honor in the course of the

discussions had in your Honor’s chambers there was

further exploration of the subject and there was con-

siderable discussion of the decision of Mr. Justice Holmes

in Cuba Railway Company vs. Crosby, reported at 222

U. S. 473, wherein it was stated that ‘‘With very rare

exceptions the liabilities of parties to each other are

fixed by the law of the territorial jurisdiction within

which the wrong is done and the parties are at the time of

doing it.’’

There were citations then of the American Banana

Company vs. United Fruit Company at 213 U. S. 447,

and there was the further observation and discussion

of the statements of the Court in that case that ‘‘That

and that alone is the foundation of their rights.’’

With respect to other discussions that were held in

your Honor’s chambers, it was pointed out in that de-

cision that the Court stated, ‘‘As to the burden of

establishing such law that we repeat that the only

justification for allowing a party to recover when the

cause of action arose in another civilized jurisdiction

is a well-founded belief that it was a cause of action

in that place. The right to recover stands upon that

as its necessary foundation. It is a part of the plain-

tiff’s case and if there is reason for doubt he must allege

and prove it.’’

Now as to the other decisions, making reference to

doubt or showing, | take it that T am within bounds in

stating that your Honor has given some expressions

that there can be no doubt about the absence of any

common law or that Saudi Arabia is not a common law

jurisdiction.

Case

There was then further discussion, and it was pointed

out at that time in the course of the discussions that

in that decision Judge Holmes warned that ‘‘It is un-

wise to presume that our more liberal laws are every-

where the same. The fact that the laws of this nation

provide rights of recovery to injured persons known

elsewhere only reflects our attitude and is not to be

extended to foreign torts without due proof.”’

I want to say, too, before leaving that, that there were

further discussions in your Honor’s chambers, in which

there were references to the fact that the Court pointed

out that particularly in derivative actions such as this

in nature, where the relationship of the parties concerns

that between employer and employee, those cases peculiar-

ly demand reference to the jurisdiction where the in-

cident occurred, and I take it it will be remembered

that Judge Holmes made pointed observations in this

respect in that case where, as your Honor pointed

out, there was a direction by the employer to the em-

ployee to make use of a machine which was known to

be or pointed out to be defective, and the hurt arising

from that use by the employee, and the opinion of Judge

Holmes stating that it was the law of that jurisdiction

that obtained and had to be pleaded and proved.

The Court: Mr. Reilly, I believe that up until this

time you are repeating in large part the substance of

the discussion that had taken place in chambers Monday,

and I believe there is a record of those discussions.

Now it probably wouldn’t serve any useful purpose

to continue repeating them here unless you are directing

them again in support of an argument of your position.

But I don’t think that you need do that because I in-

dicated clearly and unmistakably what my view was.

~’

Case

As I understand it, Mr. Higgins’ suggestion this

morning is really of a modus operandi, so that the Court's

ruling may be properly reviewed as one from a final

judgment, so that an appeal will lie, and that is the

only purpose of Mr. Higgins’ suggested method of pro.

cedure this morning; make a record, then he will have

a final judgment from which he may appeal.

Do you have any objection to that?

Mr. Higgins: As a matter of fact, your Honor, |

listened here to Mr. Reilly, and on Monday it was a

question—you asked me whether I was going to ask for

an adjournment for the purpose of proving Saudi Arabian

law, in which event you said you would have to send it

back to the calendar judge, and I merely am stating

now that the legal position—and answering you frankly

—that the plaintiff does not intend to prove Saudi

Arabian law.

The Court: Is there any objection, Mr. Reilly, to

the method of procedure outlined by Mr. Higgins this

morning?

Mr. Reilly: I don’t think so now if that be the

purpose of this.

The Court: That is the only purpose,

Mr. Higgins: Since your Honor has stated on the

record of the minutes and has already stated now what

your ruling is going to be, Mr. Reilly has talked abou

delay, I am saying I am not asking for any adjour-

ment; 1 am prepared to proceed, but since your Honor

has already stated what the Court’s ruling will be,

I merely suggest some procedure so that we will have

a proper technical record, and yet at the same time

Case

suit the convenience of this Court and not go putting

doctors on and a lot of testimony that would have no

reference to the issue of law on which your Honor has

and will rule.

Mr. Reilly: Well, I didn’t understand it altogether

in that nature because of some observations or state-

ments made by Mr. Higgins with respect to the king

in Saudi Arabia and his jurisdiction in the absence

of law.

The Court: Mr. Reilly, I believe Mr. Higgins was

really telling us that under the Saudi Arabian law

this action would not lie.

Mr. Higgins: There is no law over there and no

courts.

The Court; And that such an action as is brought

here on behalf of this plaintiff would not lie if attempted

to be brought in Saudi Arabia, and that is his state-

ment, but it isn’t necessary to go into that because

he will argue whatever legal position he takes in the

Court of Appeals.

Mr. Higgins: I think Mr. Reilly agrees with me

on that, that there is no court that he can recover in

in Saudi Arabia. I am merely saying that as an

explanation of my position that I would not ask for

an adjournment for the purpose of proving Saudi Arabian

law.

Tne Court: It is entirely commendable, and this

is a suggested procedure which lends itself as reasonable

to the Court for making a record which will then bring

the Court’s ruling up for review.

Mr. Reilly: I see, All right.

Case

The Court: Now in view of those circumstances,

and because Mr, Higgins wants to make sure if the —

ruling is reversed and the matter sent back for a new

trial he will not be deemed to have waived the jury,

we can impanel a jury of one and then at the end

of the plaintiff’s case, when he rests, direct a verdict

or dismiss the complaint.

So if you have no objection to the procedure, and

knowing now what the purpose is, we will proceed with the

trial.

Mr. Reilly: I have none.

The Court: We will impanel a jury, and with the

consent of counsel the jury will be David E. Schwab II,

who is my law clerk.

Mr. Higgins; And it is specifically stated on the

record that this procedure is adopted and that the

plaintiff is in no way waiving a jury in this case,

The Court: Waiving a jury of twelve.

Mr. Higgins: Twelve.

(David E. Sehwab II] was sworn as a juror.)

Mr. Higgins: Mr. Walton, would you take the stand,

please.

Leo W. Walton—Plaintiff—Direct

Leo W. Watton, called as a witness in his own behalf,

being duly sworn, testified as follows:

Direct Examination by Mr. Higgins:

Q. Mr. Walton—

Mr. Reilly: May I address myself to his Hon-

or a minute?

Mr. Higgins: Go right ahead.

Mr. Reilly: So that I may know, your Honor,

and therefore not make any unnecessary objections

to the Court, I take it that I cross-examine on

whatever—

The Court: You may cross examine if you

care to, but it hardly seems to be necessary in

view of your recognition of what is going to take

place.

Mr. Reilly; All right, sir.

The Court: Your failure to cross examine

cannot be prejudicial because if it is ever sent

back for a new trial, he is the plaintiff, and what-

ever he says is all self-serving.

There may be one difficulty, Mr. Reilly, that

you might want to consider. That is this: that

in the contingency, which I think is a very remote

one, that it is sent back for a trial, and if at that

time this plaintiff is dead, and your having had

an opportunity to cross-examine, you may be bound

by his testimony. That is a remote contingency.

Mr. Reilly: I will be guided accordingly, your

Honor.

Q, What is your full name? A. Leo W. Walton.

ite ~t_|

Leo W. Walton—Plaintiff—Direct

Q. Where do you live now, Mr. Walton? A. 1005

North Highland, Harrison, Arkansas.

Q. And you are a citizen of Harrison, Arkansas!

A. Yes.

Q. Where were you born? A. I was born at Walters,

Oklahoma.

Q. And how long have you lived in Arkansas? A.

Since 1931,

Q. What was the date of your birth? A. July the

27th, 1922.

Q. Prior to your injury in Saudi Arabia in 1947

by whom had you been employed? A. By TWA.

Q. Well, before your employment by TWA _ were

you in the Army? A. Yes.

Q. As a what? A. As a lieutenant in the Air

Corps.

Q. How long had you been in the Air Corps? A.

Since 1943.

Q. During that time had you flown both light and

heavy planes in the Air Corps? <A. Yes.

Q. As a matter of fact, Mr. Walton, your flying

for the Air Corps was in the Air Transport Command

before your discharge which covered the Near East,

Egypt, Saudi Arabia and that part of the world? A.

Yes.

Q. As a matter of fact, were you the pilot that flew

the Wickersham—

Mr. Reilly: This is objected to.

The Court: Sustained.

Q. Then were vou discharged; did you receive your

Army discharge here in this country, or did vou receive

it in the Near East without returning to this country!

Leo W. Walton—Plaintiff—Direct

A. I received it in the Middle East, Near Kast.

Q. Where were you discharged, A. In Abadan,

Iran.

Q. And when you were discharged did you then

get a job with some company? A. Yes, with TWA.

Q. As a what? A. As a senior flight supervisor of

Abadan Air Base.

Q. Where is Abadan? A. In Iran.

Q. What is the full name of TWA? A. Trans World

Airlines.

Q. Then some time in the course of your employment

were your duties shifted from that place to Dhahran?

A. Yes.

Q. When did that occur? A. In April I believe.

Q. Of 19477 A. 46.

Q. And what was the purpose of your assignment

from the job as night supervisor down to Dhahran?

A. It was to fly Aramco’s airplanes.

The Court: Excuse me, what?

The Witness: Aramco, Arabian American Oil

Company.

Q. Aramco is a short name for Arabian American

Oil Company, but who paid your salary? A. TWA.

Q. Was there an airport near Dhahran? A. Yes.

Q. What was the name of the airport? A. Dhahran

Airport.

Q. As a matter of fact this Dhahran, was that a

community solely built and maintained by the Aramco?

A. The City of Dhahran, yes.

Q. Getting down to the day on which this occur-

red—

Mr. Higgins: Withdrawn.

Leo W. Walton—Plaintiff—Direct

Q. How much a month were you paid as a pilot for

TWA? A. A thousand dollars a month.

Q. In addition to that thousand dollars a month

did you get quarters? A. We had quarters and _ allow-

ance away from our home base.

Q. That is the place where you lived; you didn’t

have to pay for that? A. No, we didn’t pay for our

quarters.

Q. This flying that you did, flying those planes for

Aramco, where did you fly to? A. There were several

places, just anywhere that—Aramco set up the fiights

through TWA, and where ever they said fly that is where

we flew.

Q. At this Dhahran Airport was there a TWA

flight supervisor? A. Yes.

Q. Who was het A. Mr. Frank Pope at that time.

Q. On the morning of January 5, 1947 were you

intending to go out to the Airport from Dhahran? A.

Yes, I had a flight that morning.

Q. Did you live in Dhahran? A. Yes.

Q. Where was your flight scheduled for? A. For

Ras Tanura,

@. That is another place in Saudi Arabia? A.

Yes.

Q. How did you go from where you lived at Dhahran

to the airport? A. Mr. Cooper, whom I was flying,

would leave his car with me on the evening flight.

Q. Whom you were—what, I didn’t get you.

A. Mr. Cooper and Mr. Stapleton at that time were

flying from Dhahran to Ras Tanura morning and night.

Leo W. Walton—Plaintiff—Direct

Q. As passengers? A. Yes, and Mr. Cooper would

leave his car with me to drive back to the Dhahran area,

and then back to the air base the next morning, and

then he would take it back to the Dhahran area.

Q. And on this morning were you using that car

to drive out to the airport? A. Yes, I intended to.

Q. When you left Dhahran was anybody with you?

A. Yes.

Q. Who was that? A. Mr. Palmer Lee.

Q. He was killed in this accident? A. Yes.

Q. What kind of a vehicle was it? A. It was in a

Ford pick-up truck.

Q. Ford pick-up truck? A. Yes.

Q. That is with the open back, with the seats in

front for the driver and anybody who would sit next

to him? A. Yes.

Q. American model truck with a lefthand drive? A.

Yes.

Q. About what time was it that you left, not generally,

to your best knowledge, that you left Dhahran? A.

About 6:15.

Q. A. M.? A. Yes.

Q. Was it daylight or dark? A. It was daylight.

Q. What road did you take from Dhahran to the

airport? A. That road is known as the Al Kobar

Road.

Q. By that it went from Dhahran to Al Kobar? A.

Yes, and about six miles down this road you turn to the

right to the air base.

Q. That is, you turn off the road to the air base?

A. Yes, you turn off of the Al Kobar Road to go to the

air base.

Q. And what direction were you driving in when

Men Tagan: |

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a aie | NTE LIT LLL MEET ERE OES MOGI I TT inky

Leo W. Walton—Plaintiff—Direct

you left Dhahran to drive out to the airport? A,

Kast.

Q. What kind of a road was it? A. It was a black

top and oil road.

®. And was it right through the desert? A. Yes.

(). Sand on either side? <A. Yes.

Q. When you say ‘‘black top,’’ is that a tar road!

A. It was kind of a tar in the center and then on the

sides they had it oiled down.

Q. All right. Now the tarred portion of the road,

how wide was that? A. About 25 feet.

Q. And the oiled portions out on the side, how wide

were each one of those strips on either side of the

tarred portion? A. About 10 feet; total width of the

road was about 40, 45 feet.

Q. As you drove out there from Dhahran, what kind

of a morning was it? A. It was a foggy morning.

Q. As you were driving along how far had you got-

ten from Dhahran, how far had you driven east before

something happened? A. About five miles.

Q. How many miles was the airport? A. About eight

to ten.

(Q. What part of the road were you driving on? A.

I was on the righthand side.

Q. As you went from Dhahran to this point about

five miles out were there other vehicles going your di-

rection and other vehicles going the opposite way? A.

I had passed several vehicles in the Dinahran area and on

this road.

> — 7 o

(). Was there any line or marking indicating the

center of this road? A. There was none marking the

center, no,

(). Taking an imaginary line down the center, where

Leo W. Walton—Plaintiff—Direct

was the lefthand side of your car with reference to

the center of the highway? A. Two or three feet to the

right.

Q. Which way? A. To the right of it..

Q. How far did you have clear or good visibility ahead

of you? A. 30 feet.

Q. How fast were you driving? A. 10 to 15 miles an

hour.

Q. As you were driving along there 10 or 15 miles

an hour what happened? A. Well, the first thing I saw

was one headlight on a truck or car coming toward me.

Then the first thing before I knew it he was on me

and we hit head-on, and he was on my side of the

road.

Q. Well, this truck you are talking about, which way

was the truck going? A. He was going west.

Q. Where was the other truck with reference to

this imaginary center line of the roadway? A. He was

dead ahead of me.

Q. He was dead ahead of you. Was any part of

his vehicle on the north side of the center line or in

the westbound part of that road? A. No.

Q. Now you say you saw one headlight? A. Yes,

Q. Which headlight would that have been as you were

looking at it? Would it have been the lefthand one

or the righthand one? A. His lefthand light.

Q. Was on or out? A. It was on.

Q. What about the righthand one? A. It was out.

Q. What happened then; did you erash? A. We just

crashed head-on.

Q. Then what happened to you at that time? <A. I was

knocked unconscious.

Leo W. Walton—Plaintiff—Direct

Q. Did you come to at any time out on the road-

way? A. No.

Q. When was the first trme that you came to? A,

I came to in the Dhahran Hospital and I don’t know how

long | had been there.

Q. Do you know when it was, what day, or what

time it was when you first remember anything? A,

No.

Q. When you came to how did you feel? <A. Well,

I came to, I had a—my right arm was swollen, and

my chin and all was taped up; I was sore; and my left

leg was in a cast.

Q. While you were there in that hospital were you

operated on? A. Yes.

Q. When were you operated on? A. When? That

day that I was admitted.

Q. After you were operated on was a Cast put on

vour leg? A. Yes.

Q. During that time did you have any pain? A.

Yes, I had a lot.

Q. Where and in what parts of your body? A. My

leg and chin and my arm, right arm.

. * . 7.

Q. Outside of the pain in the chin did you notice

anything else at that time? A. Yes, I had headaches

after, at that time, and ringing in the ears.

Q. How long were you in the Dhahran Hospital? A.

About 30 days.

Q. Were you transferred from there to another

hospital? <A. Yes.

Q. Where? A. To Ras Tanura.

Q. How long were vou in Ras Tanura? <A. About

ten days, I believe,

Fee

Leo W. Walton—Plaintiff-—Direct

Q. What did they do for you in Ras Tanura? A,

Heat treatments and swirl baths on my leg and mas-

sages.

Q. When did they take the cast off your leg? A.

I believe it was after, in the Dhahran Hospital, just

after I was transferred.

Q. After or before? A. Just before—it was taken

off at the Ras Tanura Hospital, I believe.

Q. How did your leg feel after the cast was taken

off? <A. It was stiff.

Q. Did you have any pain in it? A. Yes.

Q. What kind of pain? A. Well, all up and down

the leg. When I would tend to move it, it would ache.

It would ache and hurt at that time.

Q. And after you got out of the hospital just tell

us how you felt.

The Court: Off the record.

(Discussion off the record.)

Mr. Higgins: At your Honor’s suggestion,

since the medical phase of the case will not be

developed, I will adopt your Honor’s suggestion

and not go into detail on the pain and suffering

and general disability of the plaintiff, so long as

it is understood that I am not just not bringing

it out now, not because it does not exist, but it

is just because we don’t want to encumber the

record.

The Court: Needlessly at this time.

Mr. Higgins: That’s right.

Q. Now, how long did you stay in Saudi Arabia? A.

I stayed until July the 31st, I believe. That is when

I left.

Leo W. Walton—Plaintiff—Direct

Q. Were you paid up till that time? A. Yes.

* * * .

Q. How long did your payments continue with that

job? <A. It continued through my terminal leave that |

had coming until I got home.

Q. Now just with reference to this one phase of it,

while you were still there in Saudi Arabia did you go

up on flights? A. Yes.

Q. As a pilot or as a co-pilot? A. As pilot and

co-pilot.

Q. And what did you notice as to yourself and what

happened to you and what your condition was when you

were piloting or landing a plane and how you felt after-

wards? A. Well, in piloting I had considerable trouble

because my leg was still stiff, and after flying I had

trouble hearing, and particularly also in landing and

takeoffs I couldn’t control the ship because | couldn't

get sufficient radder movement on my left leg. ;

Q. After you came back to this country, when did you

first go to work again? A. I went to work for myselt

in November of 1947.

Q. In the ice cream business? A. Yes.

Q. And have you been in that ice cream business since!

A. Yes.

Q. And that ice cream business is a corporation? A.

Yes,

Q. What is the name of it now? A. Golden Rich

Ice Cream Company.

Q. Is that in Harrison, Arkansas? <A. Yes.

Q. As a matter of fact, you had another name for

Leo W. Walton—Plaintiff—Direct

it when you first opened it up. A. Yes, Arkies Ice Cream

Company.

Q. It was always a corporation? A. Yes.

Q. Now, how much a year have you earned from that

corporation since that time until now?

Mr. Reillv: This is objected to.

The Conrt: He wants to show loss of earn-

ings.

Mr. Reilly: I submit it might be dependent

upon any one of a dozen or two things, if your

Honor pleases.

Mr. Higgins: We are not going to prove

the medical. In our medical I intend to prove

that he cannot fly any more, and therefore he is

in this business. I just want to technically prove

his loss of earnings.

Off the record, do you have those figures on

your earnings from the corporation?

The Witness: Yes.

Mr. Reilly: This is objected to, if your Honor

please.

The Court: On what ground?

Mr. Reilly: Because, if your Honor pleases,

there might be, as I said before, a dozen or two

things that would enter into the earnings.

The Court: Couldn’t you develop that on

cross-examination? Can’t he testify as to what

his earnings were, earnings being what the pay-

ments were that were directly made to him? You

might be able to develop this was a one-man cor-

poration. As a matter of fact, the corporation

made a great deal of money and it wasn’t dis-

tributed, but he can testify—it is competent for

Leo W. Walton—Plaintiff—Direct

him to testify what his earnings were, and through

your cross-examination you may develop that his

earnings may have been a great deal higher.

What is the difference whether he worked for

a corporation he controlled or any other corpor-

ation? Those were his earnings.

When you say ‘‘earnings’’, maybe if we change

the word ‘‘earnings’’ Mr. Reilly will be hap.

pier.

What salary payments were made to you by

this corporation?

Mr. Higgins: Could you answer it that way?

The Witness: Yes. You want it by years

since I have been employed IT mean since I opened

the business?

Mr. Higgins: Yes.

A. In °48 I drew none. In °49 I drew $1755.33. In 1950,

$2,249.46. In 51, $4,742.75. In 1952, $5,000. 1953,

$5,000.

Mr. Reilly: What’s that?

The Court: 5,000.

The Witness: 5,000.

Mr. Reilly: Five?

The Court: That’s right.

The Witness: Yes, sir.

A. (Continuing) In 54, $5,009.62.

As a matter of fact, since the question came up,

Mr. Walton, do you have the records showing what

the corporation made in those years? <A. Yes, I

do.

Leo W. Walton—Plaintiff—Direct

Q. Now, Mr. Walton, since that time, since you have

been back to this country, tell us how you felt with

reference to your head and your general condition. A.

Well, I had a stiff leg and continuous ringing in my

head, and I had headaches, and I have had three black-

outs in the last—since 1951.

A. I have been to several doctors with my hearing,

and also with shoulder trouble.

The Court: Mr. Higgins, aren’t you now go-

ing again into the question of medical proof?

Mr. Higgins: Yes. 1 just want to ask one