Cox v. McDonnell-Douglas Corp.

• Decision Date: 11 January 1982
• Docket Number: No. 81-1046,DONNELL-DOUGLAS,81-1046
• Parties: Mrs. Sharon COX, Individually and As Next Friend for Her Minor Children, Bridgette Cox, Jennifer Marie Cox and John Thomas Cox, and As Community Survivor of John T. Cox, Deceased, Plaintiffs-Appellants, v. McCORP., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 566

665 F.2d 566

Mrs. Sharon COX, Individually and As Next Friend for Her

Minor Children, Bridgette Cox, Jennifer Marie Cox and John

Thomas Cox, and As Community Survivor of John T. Cox, Deceased, Plaintiffs-Appellants, v. McDONNELL-DOUGLAS CORP., et al., Defendants-Appellees.

No. 81-1046.

United States Court of Appeals,

Fifth Circuit.

Jan. 11, 1982.

Papadakis, Betts & Cooke, John A. Betts, Houston, Tex., William D. Lynch, Spivey, Hazel & Grigg, Paul E. Knisely, Broadus Spivey, Austin, Tex., for plaintiffs-appellants.

Graves, Dougherty, Hearon, Moody & Garwood, John T. Anderson, Robert J. Hearon, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, TATE and WILLIAMS, Circuit Judges.

TATE, Circuit Judge:

The plaintiffs' decedent, an air force captain, was killed on February 13, 1970, when his aircraft crashed in Idaho. On January 5, 1978, almost eight years later, Captain Cox's widow and his three minor children brought this wrongful death action in a Texas federal district court against McDonnell-Douglas Corporation and its affiliated companies ("McDonnell-Douglas"), which designed and manufactured the aircraft. The aircraft was designed and manufactured in the state of Missouri. The plaintiffs claim damages based on negligence and products strict liability.

The district court found that Missouri law governed the case, and that the plaintiffs' cause of action was barred in its entirety by the Missouri statute of limitations. Accordingly, the court rendered a summary judgment in favor of the defendants, and the plaintiffs appeal. We find (1) that Idaho, rather than Missouri, substantive law governs; and (2) that the action is not barred by the applicable statutes of limitation, at least not with respect to the minor children. Therefore, we reverse the judgment of the district court.

I.

The facts of this case are set forth in detail in the opinion of the district court. Cox v. McDonnell-Douglas Corp., 503 F.Supp. 202 (W.D.Tex.1980). The only issue before us is whether the plaintiffs' wrongful death action against McDonnell-Douglas is barred by whatever statute of limitations is applicable. To resolve that issue, we must first determine which state's time-bar law governs this case: the law of Idaho, in which the decedent's wrongful death occurred; or that of Missouri, in which the defendant's negligent or deficient design and manufacture occurred; or that of Texas, the forum state in which suit was brought. However, since prior to 1975 the Texas wrongful death statute, article 4671, Rev.Tex.Stat.Ann., did not create a cause of action for a wrongful death that occurred outside the state, see Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 185 (Tex.1968), it is undisputed that Texas substantive law does not apply. Thus, the central issue is, initially, whether Idaho or Missouri law governs as to whether the present action is time-barred so as to be unenforceable in the courts of Texas.

The choice of law question arises because of the following conflict of laws:

(1) Missouri's wrongful death statute, §§ 537.080 et seq., Mo.Rev.Stat.Ann., which in 1970 contained a two-year limitation period of a substantive, peremptory nature, i. e., expiration of the two-year period prior to suit being filed destroyed the right of action, not merely limited the remedy. Mo.Rev.Stat.Ann. § 537.100 (as it existed at the time of the death and of institution of this action); Crenshaw v. Great Central Insurance Co., 527 S.W.2d 1, 4-5 (Mo.App.1975). ¹ The Missouri statute of limitations is not tolled by minority. See Edmonsond v. Lakeside Hospital Ass'n, 562 S.W.2d 361, 363 (Mo.1978). The plaintiffs concede that if the Missouri statute is applicable, the district court's judgment barring their action must be affirmed.

(2) Idaho's wrongful death statute, Idaho Code § 5-311, which does not incorporate a peremptory statute of limitations, but rather is subject to the general prescriptive two-year Idaho tort statute of limitations, Idaho Code § 5-219. Further, Idaho has a six-year minority tolling provision. Idaho Code § 5-230.

(3) Texas's two-year tort statute of limitations actions, article 5526, Tex.Rev.Civ.Stat.Ann., pursuant to which limitations are tolled during the entire period of a plaintiff's minority. Article 5535, Tex.Rev.Stat.Ann.

All parties agree that because the action was brought in Texas, Texas conflict-of-law rules govern. See Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties further agree that the issue turns on the construction given to the pre-1975 version of article 4678, Tex.Rev.Civ.Stat.Ann. Article 4678 was amended in significant respect in 1975, but the Texas Supreme Court has expressly held that the 1975 amendments are not to be applied retroactively. See Gutierrez v. Collins, 583 S.W.2d 312, 317 n. 3 (Tex.1979).

"Before enactment of article 4678 in 1913, rights of action for wrongful death arising in other states or countries could not be enforced in the courts of this State." Francis v. Herrin Transportation Co., 432 S.W.2d 710, 712 (Tex.1978). The pre-1975 version of this 1913 statute applicable to the present litigation relevantly provides: Whenever a death has been caused by "the wrongful act, neglect or default of another in any foreign State ... for which a right to maintain an action and recover damages thereof is given by the statute or law of such foreign State ..., such right may be enforced in the courts of this State within the time prescribed by the statutes of this State." ²

The issue of statutory interpretation before us is whether "the wrongful act, neglect or default" in a foreign state refers to the place of the negligence or to the place of the wrongful death. In most instances, of course, they will be the same. However, as will be seen, for purposes of the pre-1975 version of this statute, the Texas courts have considered the wrongful act as giving rise to a cause of action in the place of the injury. So to speak, "the wrongful act, neglect or fault" is not considered an actionable "wrong" until it results in injury. As contemplated by the statute as originally enacted, an action for wrongful death was created by the state in which the death occurred; thus article 4678 intended to permit enforcement in Texas courts of foreign-based actions for wrongful death when a cause of action therefor was "given by the statute or law of such foreign State"-i. e., the state in which the action for wrongful death arose, contemplated to be the state in which the wrongful-death injury was sustained.

II.

The plaintiffs claim that the pre-1975 article 4678 directs the application of the law of the state in which the death occurred, in this case Idaho. The defendants, on the other hand, argue that the statute dictates application of the law of the state in which the allegedly "wrongful act, neglect or default" occurred, in this case Missouri. ³ Both sides agree that the Texas legislature probably did not seriously consider the possibility that a wrongful act in one state might cause a death in another state; indeed no Texas decision is cited to us that involves the application of the statute to this situation.

The district court agreed with the defendants that Missouri law governs this case. The court declared:

The Texas Statute does not point to the law of the place "where the cause of action arose," "the place of injury" or "the place where the tort occurred." The statute clearly refers to the State where the Defendant committed the wrongful act. The intention of the State legislature in using the words it did, must be followed. This Court holds that in referring to the place where the wrongful act, neglect or default occurred, Article 4678, as it existed prior to 1975, intended that the law of the State where the negligent act or omission actually occurred be applied, rather than the law of the place of the injury.

503 F.Supp. at 204.

Although we agree with the district court that the more literal interpretation of article 4678 is that the law of the place of the wrongful act should apply, we find that, as interpreted by the Texas courts, article 4678 calls for application of the law of the place of the allegedly wrongful death. This is because the Texas courts interpret the pre-1975 article 4678 as a codification of the judicially-created lex loci delicti rule. ⁴

Prior to the landmark decision of Gutierrez v. Collins, supra, the Texas courts for over a hundred years applied the lex loci delicti rule to resolve conflicts of law in all actions sounding in tort. See, Gutierrez, 583 S.W.2d at 313 and cases cited therein. However, prior to the enactment of article 4678 in 1913, actions for wrongful death arising in other states or countries could not be enforced in Texas courts. See Francis v. Herrin Transportation Co., 432 S.W.2d 710, 712 (Tex.1968), and cases cited therein. Article 4678 permitted the Texas courts to entertain foreign wrongful death actions, but with respect to choice of law questions, the "statute merely declared what had been the universal rule, that the lex loci delictus must determine the nature of the cause of action, and the extent of the recovery, while the forms of remedies and the methods of pursuing same are determined by the law of the forum." El Paso & Juarez Traction Co. v. Carruth, 255 S.W. 159, 159 (Tex.Com.App.1923, judgment adopted by Texas Supreme Court) (quoted in Gutierrez, supra, 583 S.W.2d at 314, as an authoritative interpretation).

Accordingly, pursuant to article 4678, "it is the cause of action given by the laws of the country where the injury occurred that (Texas) courts are authorized to enforce." Id. (emphasis added). The "law of the state in which the negligent killing occurred " governs in an action brought pursuant to the pre-1975 article 4678. Jones v. Louisiana Western Ry. Co., 243...