Atchison, T. & S. F. Ry. Co. v. Mills

• Decision Date: 20 January 1909
• Citation: 116 S.W. 852
• Parties: ATCHISON, T. & S. F. RY. CO. v. MILLS.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

116 S.W. 852

ATCHISON, T. & S. F. RY. CO. v. MILLS.^†

Court of Civil Appeals of Texas.

January 20, 1909.

On Rehearing, March 10, 1909.

Appeal from District Court, El Paso County; Jas. R. Harper, Judge.

Action by I. L. Mills against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Terry, Cavin & Mills and A. H. Culwell, for appellant. Patterson & Wallace, for appellee.

FLY, J.

This is a suit for damages instituted by appellee, and a trial resulted in a judgment for him in the sum of $7,500. This is a second appeal, the opinion in the first being reported in 108 S. W. 480.

Appellee was a fireman in the employ of appellant, and on November 14, 1906, while acting in the line of his duty, he went under an engine that was standing still, and the engine automatically moved backward and crushed his right leg so that it had to be amputated about five inches below the knee. The movement of the engine was caused by a throttle valve which leaked, which defect was not known to appellee. He was an inexperienced man, having been in the railroad service only a few weeks. The direct and proximate cause of the injury was the negligence of appellant in failing to use ordinary care in repairing the engine. Other conclusions of fact are reached in connection with the consideration of the assignments of error.

The uncontradicted testimony showed that appellee was a resident of California when the injuries were inflicted. Appellee swore that he had been in the service of appellant for about eight weeks before the accident occurred, that when he was employed he was a citizen of Los Angeles, Cal., being a voter there, and that he did not intend to make New Mexico his home. He stated: "At the time of this accident, on the fourteenth day of November, 1906, my home was in Los Angeles, California. I was a citizen of that city at that time." Being a citizen of California, he could not be compelled by a territorial law to bring suit for his damages in a court of the territory or forego his right to recover. For reasons satisfactory to this court and to the Supreme Court of Texas, we have held that such requirement did not bind the citizens of any state of the Union. Railway v. Sowers (Tex. Civ. App.) 99 S. W. 190. In that case it was said: "The state of Texas is bound, under section 1, art. 4, of the Constitution of the United States, to give full faith and credit to the public acts, records, and judicial proceedings of every other state, but it is not required to recognize a statute of any state that seeks to fix the jurisdiction of Texas courts and prevent the citizens of other states from using its courts, if they so desire, in the enforcement of their rights. The jurisdiction of our courts must and will be prescribed by the constitutional and legislative authority of our state, and not by that of any other state. A law attempting such interference is null and void, and as such does not come within the constitutional provision aforementioned." This court is asked by appellant to give careful consideration to the case of Swisher v. Railway, 76 Kan. 97, 90 Pac. 812, a decision by the Supreme Court of Kansas, the statement being made that the "identical question was considered as is involved." We find, however, that the case was one in which the parents of John W. Swisher had sued for damages alleged to have accrued by reason of his death in New Mexico, and a dismissal of the suit in the lower court was sustained on the ground that the cause of action for damages arising from the death of a person was not given by the common law, but was created by the law of the territory, and the right to sue could only exist with the restrictions contained in that law. The court, after quoting from several authorities, said: "We think that an action in this state for a wrongful death occasioned in another state or territory is incumbered with all the limitations and burdens which may have been imposed by the statutes of the state where the right of action was created." We believe that to be a correct enunciation of law, but it was announced in a very different case from this and does not apply to an action arising by virtue of the common law, and not by statute. Appellee does not have the right to appear in court and seek redress by virtue of the law of New Mexico, but by virtue of the common law, which extends to him the right to sue for damages arising from injury to his person wherever he may find the party that inflicted the injury on him.

This being a transitory common-law action, appellee had the right to sue the wrongdoer wherever he could find him, and the laws of limitation as applied to such action in the state where the action is instituted, and not those of the place of the injury, would prevail. If the right of action depended on the statute of the territory, then the bar created by statute, if the action was not instituted in a certain time, would bar the action wherever instituted, but the rule is different where the cause of action exists independent of statutory provision and the law of the forum would prevail. Gautier v. Franklin, 1 Tex. 732; Williams v. Railway, 123 Mo. 573, 27 S. W. 387. Appellee did not institute his suit under or by virtue of the statute of New Mexico, but as a citizen of California he exercised his common-law right to sue appellant in Texas because he found appellant here, and the law of the forum that he chose, as to limitations, must be applied to his action, and not a provision of a law of New Mexico. The law of New Mexico did not give him his right of action; he does not invoke that law in aid of his action, but he has invoked the aid of a law as broad as the confines of civilization, and under its beneficent operation asks redress for the wrongs perpetrated on him. If, however, it should be concluded that by the enactment of the law invoked by appellant the common-law right of action was annulled, and that by the provisions of the statute no one could sue a railroad corporation for inflicting injuries to his person, unless various and sundry, onerous, and harassing conditions were complied with, and unless the suit was instituted in a territorial court within one year from the time the right of action accrued, still the provision as to the suit being brought in one year could have no application to the rights of appellee, unless it appeared that he and appellant had continued to reside in New Mexico during the full period of limitations, so that it could act both upon the parties and the cause of action. Story, Conflict of Laws, 581; Wood, Lim. § 8, p. 34; Finnell v. Railway (C. C.) 33 Fed. 427; Railway v. Johnston, 61 Fed. 738, 9 C. C. A. 587, 25 L. R. A. 470; Williams v. Railway, 123 Mo. 573, 27 S. W. 387; Nonce v. Railway (C. C.) 33 Fed. 429.

The statute of New Mexico does not attempt to give a right of action for damages arising from personal injuries, but provides that an existing right shall not accrue unless certain provisions are complied with. The statute did not purport to grant any new right, but its sole purpose, as is evidenced by its preamble, was to prevent citizens who might be injured in their persons, within the bounds of the territory, from exercising their right to sue where they might find the wrongdoer, and then, if they had the desire to sue in its courts, to prescribe such onerous and vexatious requirements that they would rather have their wrongs unredressed than to attempt to run the gauntlet of the statutory provisions. Of course all those conditions were prescribed because persons seemed disposed to rather shun the territorial courts, "to the increased cost and annoyance and manifest injury and oppression of the business interests of this territory, and in derogation of the dignity of the courts thereof." It did not attempt to create a new right, but rather to abridge and throttle an old one, and the courts of the different states are under no obligations of comity, or otherwise, to lend any aid to the strangling process when it is applied to those who do not live within the bounds of the territory. We have said this in view of the rule that where a cause of action is created by statute, and a period of limitation is prescribed therein, it would bar the action, if the time has elapsed before suit is brought, no matter where it might be instituted. The law in question does not come within the rule. As is said in the cited case of Finnell v. Railway: "The rule is different, however, with respect to action given by the common law. As suits may be brought upon causes of action arising under the common law wherever service can be obtained, it is difficult to understand how a statute of limitation of one state, even though it extinguishes a cause of action after the lapse of a certain period, can have any extraterritorial effect unless both parties to be affected by the statute reside within the state where the law prevails for the statutory period. In that event, if they removed to a foreign jurisdiction and suit is brought upon the cause of action, it is reasonable to hold them bound by the laws of the state under which they both lived and which extinguished the cause of action before they removed therefrom. As...