De Ham v. Mexican Nat. Ry. Co.

• Decision Date: 12 October 1893
• Citation: 23 S.W. 381
• Parties: DE HAM v. MEXICAN NAT. RY. CO.
• Court: Texas Supreme Court

23 S.W. 381

DE HAM v. MEXICAN NAT. RY. CO.

Supreme Court of Texas.

October 12, 1893.

Application for writ of error to the court of civil appeals, first supreme judicial district.

Action by Elizabeth De Ham against the Mexican National Railway Company for injuries to plaintiff's son, resulting in his death. Judgment for defendant affirmed in court of civil appeals. 22 S. W. Rep. 249. Application for writ of error. Denied.

McLeary & Fleming, for petitioner.

GAINES, J.

This is an application for a writ of error to the court of civil appeals of the third supreme judicial district, which is asked for the purpose of reviewing and reversing a decision of that court affirming a judgment of the district court of Nueces county. The applicant brought the suit to recover of the defendant, the Mexican National Railway Company, damages for injuries to her son, which, as alleged, resulted in his death. It was averred in the petition that the injuries were inflicted in the republic of Mexico, and that the death occurred in this state. A general demurrer to the petition was sustained, and, the plaintiff having declined to amend, the suit was dismissed. It is settled law that the statute of a state which, for a tort, gives a right of action in derogation of the common law, or a right of action unknown to that law, can have no extraterritorial force; and, in accordance with this rule, it has been expressly decided in this state that for an injury inflicted in another state or territory, which results in the death of the party injured, the surviving relatives have no right to recover in this state. Willis v. Railway Co., 61 Tex. 432; Railway Co. v. Richards, 68 Tex. 375, 4 S. W. Rep. 627; Railway Co. v. McCormick, 71 Tex. 660, 9 S. W. Rep. 540. But in each of the cases cited the death occurred without the limits of the state. A seeming exception is that, if the law of the state where the injury is inflicted gives substantially the same right of action which is given by the law of the state where the suit is brought, and in favor of the same parties, by reason of the principle of comity the right will be enforced in the latter state. The doctrine is recognized in the case last cited, though it was there held that the facts of that case did not bring it within the principle. That decision, however, leaves the question open. We use the phrase "a seeming exception" because it cannot in fact be deemed an exception to the general rule. That rule is founded upon the principle that the statutes of a state have no effect beyond its own limits, and that, if the act or omission complained of be not actionable by the law of the state where it is committed, no action can properly be brought on it in another state, although by the laws of the latter the act would have been actionable if committed within its jurisdiction. We do not understand, however, that the applicant for the writ of error in this case controverts these propositions. The contention is, in substance, that because the death occurred in this state, although the injury was inflicted in Mexico, our statute gives a right of action. In support of this contention, we infer that counsel for the applicant rely, in part at least, upon the language of article 3202 of our Revised Statutes. This article provides, in substance, that all actions of this character shall be brought within one year "after the cause of action shall have accrued," and also provides that "the cause of action shall be considered as having accrued at the death of the party injured." But this is merely a statute of limitation, and not a statute defining what shall constitute a cause of action. The reason of the provision is obvious. Since no action could be brought by the relatives of the injured person until death had ensued, and since a great length of time might elapse between the injury and the death, it was...