Francis v. Herrin Transp. Co.
| Decision Date | 03 January 1968 |
| Docket Number | No. 52,52 |
| Court | Texas Court of Appeals |
| Parties | Evelyn FRANCIS, Appellant, v. HERRIN TRANSPORTATION CO., Inc., Appellee. . Houston (14th Dist.) |
Joseph D. Jamail, John Gano, William J. Stradley, Houston, Eugene H. Lawes and Bass & Lawes, Lake Charles, La., for appellant.
Danny R. Edwards, Houston, for appellee.
Appellant, Evelyn Francis, widow of Lawrence Francis, deceased, brought this suit for damages by reason of injuries to and the death of her husband which occurred in the State of Louisiana. The suit was brought against Herrin Transportation Co., Inc., appellee here, and alleges general negligence on the part of Herrin Transportation Co., Inc. (hereinafter called Herrin). The accident occurred on April 18, 1966, and appellant filed suit on May 29, 1967, more than one year after the accident and death of Mr. Francis. Suit was filed in the District Court of Harris County, Texas. Herrin, by special exceptions and plea in abatement, contends that the cause of action accrued more than one year before the date of the filing of the petition and of the commencement of this action, and that under the laws of Louisiana where this cause arose, and of which laws the court has heretofore been asked to take judicial notice, an action for wrongful death must be brought within one year from date of accrual of such cause. Appellee contends that the cause here is barred forever under the Louisiana doctrine of peremption. Herrin duly and timely filed motion for judicial notice of the laws of Louisiana as required by Rule 184a, Texas Rules of Civil Procedure.
The trial court, after hearing, granted Herrin's plea in abatement and dismissed Mrs. Francis' action, holding in effect that the action was barred by the one-year prescription provisions of Louisiana law, and that the cause was perempted and destroyed after the expiration of one year from the accrual of the cause of action. Appellant, Mrs. Francis, excepted and has properly perfected her appeal to this court.
Appellant's contentions are that the trial court in dismissing appellant's cause of action for the death of her husband as being perempted in one year, directly violated the controlling Texas statutes and violated the public policy of this State as expressed by these legislative enactments, towit: Articles 4678 and 5526, V.A.T.S. Article 4678 provides that a citizen of Texas or of the United States may seek redress within the Texas limitation period, in a Texas court for damages occurring in another state, if the laws of the other state give such right of action, and provides that Procedural matters shall be governed by the laws of Texas. Article 5526 provides for a two-year limitation period from time of death in an action resulting in death.
Appellant is a resident of Louisiana. Appellee is a Delaware corporation doing business in Texas and Louisiana. The injuries for which appellant sued were sustained in Louisiana and this suit was filed and prosecuted in Texas. The substantive laws of Louisiana must control appellant's rights of recovery, but procedural matters involved will be controlled by the laws of this state. Jones v. Louisiana Western Ry. Co., 243 S.W. 976 (Tex.Com.App.); Grandstaff v . Mercer, 214 S.W.2d 133 (Tex.Civ.App.), writ ref., n.r.e.; Withers v. Stimmel, 363 S.W.2d 144 (Tex.Civ.App.), writ ref., n.r.e.; 12 Tex .Jur.2d 312.
In Louisiana, prescription is similar to our statutes of limitations, while peremption is a substantive limit on the right of action. Statutes of peremption destroy the cause of action itself. See Succession of Roux v. Guidry, 182 So.2d 109, 110 (La.Ct. of App.), writ ref.; 13 Tulane L.Rev. 39 (footnote).
Appellant seeks to have applied the Texas two-year statute of limitations in this case and states that procedural matters (limitations) are governed by the law of the forum--Texas law. In support of her contention, she cites the case of Home Ins. Co. v. Dick, 15 S.W.2d 1028, 1029 (Tex.Com.App.), reversed, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926. That case involved a contractual action, an insurance policy on a boat totally destroyed by fire at Tampico, Mexico. Suit was filed in Texas after the expiration of one year from the accrual of the action. The policy of insurance in that case provided that no suit could be brought on the policy unless the suit was filed within one year, and sought to apply the law of Mexico's commercial code to the policy, which provided for a prescriptive period of one year in cases involving contracts of life insurance, sea and land. The Prescriptive period in that policy was urged by the insurance company as a Peremptive period, and it was contended that the provisions effectively terminated or killed the cause of action under Mexican law. The Commission of Appeals held that the prescriptive periods amounted to nothing more than statutes of limitations, a procedural matter, and that Texas law governed. However, the court did treat the Mexican statutes as peremptive statutes for the sake of argument, and held that in a case of such nature, involving an insurance policy, the result would be the same as against the claimant, a resident of Texas who had the right to rely upon the law of the forum in a Texas action. Moreover, in that case it was never proven just what construction had been placed upon the language of the contract by the Mexican courts. It was further held that the Texas statute prohibiting the shortening of limitation periods by any person, firm or corporation by contract violated the public policy of this State. See Art. 5545, V.A.C.S. In the present case, the plaintiff is a citizen of Louisiana, and there is no agreement or contract shortening any period of limitation or prescription. Only the substantive law of Louisiana is involved.
The governing Louisiana Statute pertaining to actions of this type is as follows:
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The above article was amended in 1960 partly to broaden the right to recover damages for wrongful death.
The Texas authority which we believe to be controlling on this question is discussed in State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758. In that case, the right of the State of California to bring suit for reimbursement against a son...
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Neal v. Butler Aviation Intern., Inc.
...of limitations as integral to the statutory right if that appears to be the scheme of the foreign statute. Francis v. Herrin Transportation Co., Tex.Civ.App.1968, 423 S.W.2d 610; Culpepper v. Daniel Industries, Inc., Tex.Civ.App. 1973, 500 S.W.2d 958. That, however, appears to be deference ......
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Francis v. Herrin Transp. Co.
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