Carter v. Tillery, 6278
| Decision Date | 02 February 1953 |
| Docket Number | No. 6278,6278 |
| Citation | 257 S.W.2d 465 |
| Parties | CARTER et al. v. TILLERY. |
| Court | Texas Court of Appeals |
Hill, Brown, Kronzer & Abraham, Houston, for appellants.
Adkins, Folley, Adkins, McConnell & Hankins, Amarillo, for appellee.
The sole question to be determined on this appeal is whether or not the trial court had jurisdiction over the subject matter pleaded. Appellants, Mrs. Patricia Carter, joined by her husband William Carter, filed suit against appellee, Jackson I. Tillery, for alleged damages in the sum of $96,000 as a result of personal injuries sustained by Mrs. Carter in an airplane crash occurring as a result of appellee's alleged negligence on December 21, 1950, in Chihuahua, Old Mexico. Appellants and appellee were all residents of Potter County, Texas, at the time in question. Appellee owned the airplane involved and was operating it at the time of the crash and appellants were riding with appellee as his gratuitous guests on that occasion. The three of them left Artesia, New Mexico, en route to El Paso, Texas, when they lost their course and landed in Chihuahua, Mexico. They learned some thirty minutes before landing that they were in the Republic of Mexico as they sought and found a place for a safe landing on a dirt road. The plane crashed causing the alleged injuries as they attempted to take off from Saas, Chihuahua, Mexico.
Appellee filed a plea to the jurisdiction of the court, based upon a contention that the laws of the State of Chihuahua and of the Republic of Mexico fixing the rights of a party to recover for an injury of this nature, and the measure of damages therefor, are so dissimilar to the laws of this State in like matters that the courts of this State should not and cannot enforce the same. In support of his contention appellee pleaded in detail the Civil Code for the Federal District and Territories of the Republic of Mexico, both as to the basis for a cause of action and defining the measure of damages. He then pleaded that the Mexico code was so dissimilar to the laws of this State covering such a right of action, measure of damages and terms of recovery that the Texas courts cannot and should not undertake to enforce them. Appellee then offered testimony in support of his pleadings. He first offered the testimony of Honorable Erasmo Lozano, a practicing attorney from Mexico City, who testified that he was familiar with the system of laws that prevailed in the Republic of Mexico; that the system in so far as it concerns tort actions has been the same from the year 1870 down to the present time and that such was true as to the rights of parties to maintain an action for tort. The witness then explained in detail the system of laws as it prevails in the State of Chihuahua and in the Republic of Mexico concerning a tort action such as the instant case and regarding the measure of damages therefor. He further testified that appellee's exhibit number one, which was introduced in evidence, was the Mexico code governing the cause of action as set forth in appellants' original petition herein filed. The oral testimony of appellant, William Carter, given briefly, and stipulations converning admitted facts heretofore given were also heard by the trial court. For these reasons appellee sought a dismissal for lack of jurisdiction.
As a result of the hearing the trial court sustained appellee's plea to the jurisdiction of the court on the grounds therein pleaded and dismissed the cause for lack of jurisdiction, from which order of dismissal appellants have perfected their appeal.
In 1917 the Legislature of this State enacted the following law, which is now Article 4678, Vernon's Annotated Civil Statutes:
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...adjudicate the rights of the parties." El Paso & Juarez Traction Co. v. Carruth, Tex. Comm.App.1923, 255 S.W. 159. See Carter v. Tillery, Tex.Civ.App.1953, 257 S.W.2d 465, err. ref., n. r. e. See also Mexican National Railway Co. v. Jackson, 1896, 89 Tex. 107, 33 S.W. 857, 31 L.R.A. 276; Sl......
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