Gutierrez v. Collins

Decision Date13 June 1979
Docket NumberNo. B-7943,B-7943
PartiesEsperanza GUTIERREZ, Petitioner, v. Edward R. COLLINS, Respondent.
CourtTexas Supreme Court

Sam J. Dwyer, Jr., El Paso, for petitioner.

Dudley & Dudley, Paul W. Dudley, El Paso, for respondent.

SAM D. JOHNSON, Justice.

This appeal brings into question the continued validity of two conflict of laws rules which heretofore have been considered well-established in this state: the rule of Lex loci delicti and the dissimilarity doctrine. The trial court dismissed petitioner's case for want of jurisdiction. The court of civil appeals affirmed. 570 S.W.2d 101. Having carefully considered the matter, we reverse the judgments of the trial court and the court of civil appeals. This cause is remanded to the trial court so that it may proceed to a trial on the merits.

The facts of this case are not difficult. Gutierrez, plaintiff below and petitioner here, brought suit against Collins, defendant below and respondent here, for damages for personal injuries suffered in an automobile accident that occurred in Zaragosa, State of Chihuahua, Mexico. Plaintiff Gutierrez alleged that the collision was caused by the negligence of defendant Collins. Gutierrez and Collins are both residents of El Paso, Texas. The petition prayed for damages for medical expenses, loss of earning capacity, lost wages, and pain and suffering, or, in the alternative, for moral reparations as allowed under Mexican law, which was specifically pleaded. Collins filed a plea to the jurisdiction, arguing that the dissimilarity doctrine required dismissal of the case. At a hearing on this plea, the trial court received evidence concerning the laws of Mexico. The court then sustained defendant Collins' plea to the jurisdiction and dismissed Gutierrez's suit. The court of civil appeals affirmed.

The long-standing rule in tort cases in this state has been that the law of the place where the wrong occurred, I. e., the Lex loci delicti, dictated the substantive rights of the parties and was to be applied by a Texas court in the trial of the case. By this rule, if suit were brought in Texas for a tort committed in Mexico, the trial court was to apply the law of Mexico. It was here, however, that the dissimilarity doctrine deprived the plaintiff of a judicial forum. By this doctrine, the Texas court was required to dismiss the cause for want of jurisdiction because the tort laws of Mexico were considered to be so different from those of Texas as to make it impossible for a Texas court to apply and enforce them. The time has come to reconsider both of these rules.

LEX LOCI DELICTI

It must be understood at the outset that the rule of Lex loci delicti owes its origins to the courts. While not formally stated until the end of the nineteenth century in De Ham v. Mexican Nat. Ry. Co., 86 Tex. 68, 23 S.W. 381 (1893), it clearly was within the contemplation of the court much earlier. The rights of the moving party always turned on the substantive law of the place where the injury occurred. St. Louis, I. M. & S. Ry. Co. v. McCormick, 71 Tex. 660, 9 S.W. 540 (1888); Texas & P. Ry. Co. v. Richards, 68 Tex. 375, 4 S.W. 627 (1887). It is the contention of the plaintiff Gutierrez that this court may effect a change in this area of the law by the simple expedient of overruling those cases. The defendant Collins argues to the contrary that the Legislature has taken the matter out of the hands of the courts by codifying the Lex loci delicti rule in statutory form. Thus, according to Collins, what began as a rule of common law has now been transformed into a statutory edict and may be changed only by the Legislature.

The statute in question is Article 4678, Texas Revised Civil Statutes Annotated. The accident in question occurred on December 25, 1973. The statute was substantially changed by amendment in 1975, but the version existing in 1973, the time of the accident, read as follows:

"Art. 4678. Death in foreign State

"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 Defendant Collins argues that the statute, which was enacted in 1913, reflects a legislative mandate to the courts to apply the Lex loci delicti rule. He asserts that the statute covers all negligence cases since it speaks of "death Or personal injury," thereby depriving the courts of any discretion in the matter. Plaintiff Gutierrez, on the other hand, argues that the statute is mandatory only in statutory causes of action, such as a suit brought under the Wrongful Death Statute, Texas Revised Civil Statutes Annotated, Article 4671, Et seq., of which Article 4678 is a part. Gutierrez argues that in a common law cause of action, such as the instant case, the statute is merely permissive; that is, it authorizes one to bring suit in Texas, but does not dictate any conflict of laws rules to be applied by the court. We agree with this construction.

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."

Some cases do contain broad language that might be construed as supporting Collins' theory. For example, it was stated in Jones v. Louisiana Western Ry. Co., 243 S.W. 976, 978 (Tex.Com.App.1922, jdgmt. adopted), in reference to the meaning of Article 77301/2, the predecessor statute to Article 4678:

"The law of the place where the cause of action arose, the lex loci delictus, must determine the nature of the cause of action, and the defenses, if any, available. The case asserted must stand or fall upon that law."

One year later the statute was again construed as a codification of the Lex loci delicti rule in El Paso & Juarez Traction Co. v. Carruth, 255 S.W. 159, 159 (Tex.Com.App.1923, jdgmt. adopted):

"This statute merely declared what had theretofore 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 mode of pursuing same are determined by the law of the forum."

More recently, this court wrote in Francis v. Herrin Transportation Company, 432 S.W.2d 710, 712-13 (Tex.1968):

"Thus, the right conferred by that article (4678) 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 '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." (Emphasis partly in original and partly added.)

This language was cited as controlling authority in Click v. Thuron Industries, Inc., 475 S.W.2d 715, 716 (Tex.1972).

Several courts of civil appeals have relied on Article 4678 in applying the Lex loci delicti rule in suits for personal injuries as well as wrongful death actions. Withers v. Stimmel, 363 S.W.2d 144, 148 (Tex.Civ.App. Dallas 1962, writ ref'd n. r. e.); Carter v. Tillery, 257 S.W.2d 465, 466-67 (Tex.Civ.App. Amarillo 1953, writ ref'd n. r. e.); Grandstaff v. Mercer, 214 S.W.2d 133, 134-35 (Tex.Civ.App. Fort Worth 1948, writ ref'd n. r. e.). The Fifth Circuit has viewed Article 4678 as a "clear mandate" to apply the Lex loci delicti rule. Ramirez v. Autobuses Blancos Flecha Roja, S.A. de C.V., 486 F.2d 493, 497 (5th Cir. 1973). Stumberg was in accord with this view of the statute. Stumberg, Conflict of Laws Torts Texas Decisions, 9 Tex.L.Rev. 21 (1930); G. Stumberg, Principles of Conflict of Laws 181 n. 7 (3rd ed. 1963).

Nevertheless, while the above-quoted language marks no distinction between statutory and common law causes of action, the fact remains that all of the decisions by this court involving Article 4678 have been The distinction between common law causes of action and those created by statute has long been recognized. Nearly a century ago it was stated by this court in Willis v. Mo. Pac. R'y Co., 61 Tex. 432, 434 (1884):

wrongful death actions. The instant case represents the first opportunity this court has had to determine whether Article 4678 is of mandatory application in a common law cause of action as well.

"Where the action is transitory and is based on personal injuries recognized as such by universal law, the suit may be brought wherever the aggressor is found, irrespective of the provisions of the local law, or whether there be any law at all in force at the place where the wrong was committed. . . .

"But where the right of action does not exist except by reason of statute, it can be enforced only in the state where the statute is in existence and where the injury has occurred." 1

In 1962 this court expressly reserved judgment on whether Article 4678 was of mandatory application. Flaiz v. Moore, 359 S.W.2d 872, 876 (Tex.1962). The statutory nature of Article 4678 was particularly noted in Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 193-94 (Tex.1968):

"Under the law as it now exists, there is no choice of laws. Article 4671 does not apply to wrongful acts resulting in death which are committed outside of Texas, consequently the only basis for this purely statutory action is the Colorado statute which is enforceable in Texas by virtue of Article 4678.

"It is one thing for the judicial branch to amend a statute and quite another thing to modify a rule of common law. . . .

". . .

". . . The doctrine of lex loci delicti is a court-made rule. . . ."

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