Francis v. Herrin Transp. Co.

• Citation: 432 S.W.2d 710
• Decision Date: 02 October 1968
• Docket Number: No. B--798,B--798
• Parties: Evelyn FRANCIS, Petitioner, v. HERRIN TRANSPORTATION COMPANY, Inc., Respondent.
• Court: Supreme Court of Texas

Page 710

432 S.W.2d 710

Evelyn FRANCIS, Petitioner, v. HERRIN TRANSPORTATION COMPANY, Inc., Respondent.

No. B--798.

Supreme Court of Texas.

Oct. 2, 1968.

Rehearing Denied Nov. 6, 1968.

Joseph D. Jamail, John Gano and William J. Stradley, Houston, Bass & Lawes, Eugene H. Lawes, Lake Charles, La., for petitioner.

Danny R. Edwards, Houston, for respondent.

CALVERT, Chief Justice.

This suit for damages for wrongful death was brought by the widow of Lawrence Francis, Jr., who was alleged to have died as a result of injuries received while a passenger in an automobile which collided with one of Herrin's trucks in Louisiana.

Mr. Francis died on April 18th, 1966, the date on which the collision occurred and this suit was filed in Harris County thirteen months and eleven days later on May 29th, 1967. Herrin filed a sworn pleading by which it sought abatement and dismissal of the suit on the ground that Louisiana law required the filing of the suit within one year of Mr. Francis' death. The district court took judicial notice of Louisiana law, upon motion, and sustained the plea and dismissed the suit. The court of civil appeals affirmed. 423 S.W.2d 610. We reverse the judgments of both courts and remand the cause to the trial court with instructions to reinstate it on the docket.

The pleadings of the parties indicate that at the time of the collision, the driver of the automobile in which Mr. Francis was riding was attempting to pass an unidentified automobile proceeding in the same direction; that the Herrin truck was proceeding from the opposite direction and the collision occurred before the passing was completed; and that before the vehicles and their occupants were removed from the highway, a third automobile, driven by one Bednarek, collided with the wreckage and caused further injury and damage. The record before us also discloses that within one year of her husband's death, Mrs. Francis, acting individually and as duly appointed tutrix for her two minor children, filed a wrongful death suit in a Louisiana court against The Stonewall Insurance Company, Bednarek's insurer, under Louisiana's direct action statute, Article 22:655, West's La.Rev.Stat. That suit is still pending.

Mrs. Francis urges in this court, as she did in the court of civil appeals, that the trial court erred in dismissing her suit for three reasons: (1) Texas statutes expressly provide a period of two years within which to file her suit in this State, and these statutes, rather than the Louisiana statute which requires that her suit be filed within one year, control; (2) the shorter limitation period provided in the Louisiana statute is contrary to the public policy of this State and will not be enforced; and (3) her suit was timely filed even if the Louisiana statute controls.

The Texas statutes to be considered in disposing of petitioner's contentions are Articles 4678 and 5526, Vernon's Tex.Civ.Stat. Article 4678 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 forum shall control in the prosecution and maintenance of such action in the courts of this State in all matters pertaining to the procedure.'

Article 5526(7) provides a two-year period of limitation for the commencement of wrongful death actions in this State. It is to be noted, however, that by the provisions of Article 4678 rights of action for damages for death caused by wrongful act or neglect in another state or country may be enforced in the courts of this State only by one to whom the statute or law of such other state or country gives 'a right to maintain an action and recover damages.' 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. See Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, (Tex.Sup.1968); De Ham v. Mexican Nat. Ry. Co., 86 Tex. 68, 23 S.W. 381 (1893); Willis v. Missouri Pac. Ry. Co., 61 Tex. 432 (1884). Thus, the right conferred by that article is subject to the qualifications imposed by its terms, and one invoking the jurisdiction of our courts under the article must establish that he has At that time ¹ 'a right to maintain an action and recover damages' under the statute or law of the state or country where the wrongful act or neglect occurred. If by that law or statute the right to maintain the action and recover damages, although once given, no longer exists, our statute of limitation does not confer the right. Petitioner's first contention is overruled.

Petitioner's second contention is also overruled. There is no sound basis for holding that the public policy of this State frowns upon foreign statutory provisions which limit the time within which rights of action for wrongful death may be enforced to one year. In support of her public policy contention, petitioner relies principally upon Home Ins. Co. v. Dick, 15 S.W.2d 1028 (Tex.Com.App.1929, judgm't app.). In that case, Dick sought by suit in Texas courts to predicate liability of the defendants on a policy of insurance issued in Mexico by a Mexican company. A Mexican statute provided a one-year limitation period for the commencement of suits on insurance policies, and the policy contained a similar contractual provision. The Commission of Appeals held that both the Mexican statutory provision and the policy provision were violative of the public policy of this State as declared in Article 5545, Vernon's Tex.Civ.Stat., which prohibits the making of 'any stipulation, contract, or agreement, by reason whereof the time in which to sue thereon is limited to a shorter period than two years,' and provides that 'no stipulation, contract, or agreement for any such shorter limitation in which to sue shall ever be valid in this State.' The decision in Dick is inapposite for two reasons, viz: (1) Texas has no statute comparable to Article 5545 proscribing periods of limitation of less than two years in wrongful death actions, and (2) Texas has no statute applicable to suits on insurance policies or other contracts containing language similar to the controlling language we have quoted from Article 4678. It should be noted that the Supreme Court of the United States reversed the judgment of this court in Dick. See Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1929). That court held that to give Article 5545 the effect of voiding the policy provision under the circumstances of the case was a denial of due process and was violative of the Federal Constitution.

Petitioner's third contention presents an extremely difficult problem. It requires that we determine whether petitioner, on the date of filing this suit, had a substantive right under Louisiana law to maintain a suit against, and recover damages from Herrin in that state for the wrongful death of her husband. If she did have the right, Article 4678 gives her a right to maintain her suit in the courts of this State since it was commenced within the applicable two-year limitation period provided in Article 5526(7). The frustrations encountered in our search for a definitive answer to the question deepens our sympathy for Federal courts which must search for state law as a goodly part of their daily tasks.

The relevant part of Article 2315, West's La.Civ.Code, the Louisiana wrongful death and survivorship statute, provides:

'Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

'The right to recover damages to property * * *. (not relevant).

'The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; * * * (other beneficiaries not relevant to this suit). The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.

'* * *. (definitions not relevant to this case).'

The statute undoubtedly gave Mrs. Francis a substantive right of action in Louisiana for the alleged wrongful death of her husband; but the statute expressly provides that '(T)he right to recover * * * shall survive for a period of one year from the death of the deceased * * *,' and the parties disagree strongly as to the nature and legal effect of that provision.

Rights of action in Louisiana may be lost by passage of time under two different types of statutory provisions, one of which is 'prescriptive' and the other 'peremptive'. The Supreme Court of Louisiana has differentiated the two in Succession of Pizzillo, 223 La. 328, 65 So.2d 783, at 786 (1953), in this language:

'The difference in prescription and peremption is that the former simply bars the remedy whereas, in the latter, time is made of the essence of the right granted and a lapse of the statutory period operates as a complete extinguishment of the right.'

Or, as was said by the same court in Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899,...