416 S.W.2d 58 (Tex.Civ.App.

Docket Nº:11487.
Citation:416 S.W.2d 58
Party Name:Lucy MARMON et al., Appellants, v. MUSTANG AVIATION, INC., Appellee.
Case Date:May 24, 1967
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas

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416 S.W.2d 58 (Tex.Civ.App. —Austin 1967)

Lucy MARMON et al., Appellants,



No. 11487.

Court of Civil Appeals of Texas, Austin

May 24, 1967

Appellants' Motion for Rehearing and Appellants' Amended Motion for Rehearing Denied June 14, 1967.

White, McElroy & White, Adair Dyer, Jr., Dallas, For appellants.

Harris, Anderson, Henley, Shields & Rhodes, L. W. Anderson, Dallas, for appellee.

O'QUINN, Justice.

Suit was brought in Dallas County for wrongful death of passengers in a chartered aircraft that crashed into the side of a mesa

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in Colorado on November 3, 1964. The pilot and all the passengers were killed. Everyone aboard the plane was a resident of Texas, except one passenger who resided in Illinois.

At the time of the accident, the plane was returning to Texas, after take-off at Billings, Montana, on the last leg of an extensive journey. The passengers had left Texas about ten days previously on a business trip to western United States, with stops in New Mexico, Nevada, Oregon, and Montana.

Each of the two defendant corporations was domiciled in Texas. Three of the four passengers killed were executives of Dr. Pepper Company, a corporation having its principal place of business and its national headquarters in Texas. The trip west had been made in behalf of Dr. Pepper Company under a contract made by this company in Texas with Mustang Aviation, Inc., appellee, whose principal place of business was Love Field, Dallas, Texas. The pilot had been hired in Texas, and the aircraft was garaged, maintained, licensed, and contracted for in Texas.

The only connection between the aircraft, its pilot and passengers, with the State of Colorado was the crash itself near Kim and a landing at Denver earlier that day for refueling and to obtain weather information, which took about an hour.

The question to be decided is whether the law of Colorado, the place of the accident, or the law of Texas, the place of trial, shall be followed and applied.

The Texas wrongful death statute places no limit on compensable damages. The Colorado statute imposes a limit of $25,000 for each death. This limitation is the principal difference between the two statutes. Under the judgment of the district court, this difference, depending upon final determination of the case in the appellate courts, could amount to $100,000.

The cause was submitted to the trial court under an agreed statement of facts, pursuant to Rule 263, Vernon's Ann.Rules Civ.Proc., and the court's judgment makes allowance for the several results that might flow from a final decision in the appellate courts.

The district court applied the law of Colorado, awarding damages in the sum of $24,000 to each group of survivors of the four passengers. The sum of $96,000 was paid into the registry of the court to be distributed equally to each of the four groups of survivors. The judgment provided for an additional sum of $100,000 to be paid by appellee if on appeal it is found the trial court should have applied the Texas law imposing no limit on damages, instead of the Colorado law limiting compensable damages.

Appellants, survivors of the four passengers, contend that the law of Texas should have been followed by the trial court. Appellants seek to show that because Texas is the state having the most significant total relationship with the flight and the sole significant interest in the measure of recovery allowed to those survivors who are residents of Texas, and the arbitrary limitation on damages recoverable under the Colorado wrongful death statute should not be applied by the Texas courts to limit appellants' recovery.

Appellee contends that Article 4678, Vernon's Ann.Tex.Civ.Stats., controls this case in its entirety. This statute, with emphasis added to the same clauses accented by appellee, reads as follows:

'Whenever the death or personal injury of a citizen of this State or of the United States, or of any foreign country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by the wrongful act, neglect or default of another in any foreign State or country for which a right to maintain an action and recover damages thereof is given by the statute or law of such foreign State or country, such right of action may be enforced in the courts of this State within the time prescribed for the commencement of such actions by the statutes of this State. The law of the

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forum shall control in the prosecution and maintenance of such action in the courts of this State in all matters pertaining to the procedure.'

Appellee argues that Article 4678 specifically holds that the damages recoverable are the damages designated by the foreign state that created the cause of action. Appellee asserts that the Texas courts have consistently held that the question of damages, as well as the creation of the cause of action, is controlled by the law of the foreign state in which damages arose.

Article 4678 had its origin in a statute passed by the Texas Legislature in 1913, amended in 1917, and included as amended, with no substantive change, in the Revised Civil Statutes of 1925. Acts 1913, 33rd Leg., ch. 161, p. 338; Acts 1917, 35th Leg., ch. 156, p. 365.

In 1922 in a wrongful death case the Texas Commission of Appeals, in an opinion adopted by the Supreme Court, construed the statute and held that, while the statute required Texas...

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