Marmon v. Mustang Aviation, Inc.

• Decision Date: 24 May 1967
• Docket Number: No. 11487,11487
• Citation: 416 S.W.2d 58
• Parties: Lucy MARMON et al., Appellants, v. MUSTANG AVIATION, INC., Appellee.
• Court: Texas Court of Appeals

Page 58

416 S.W.2d 58

Lucy MARMON et al., Appellants, v. MUSTANG AVIATION, INC., Appellee.

No. 11487.

Court of Civil Appeals of Texas, Austin.

May 24, 1967.

Appellants' Motion for Rehearing and Appellants' Amended

Motion for Rehearing

Denied June 14, 1967.

White, McElroy & White, Adair Dyer, Jr., Dallas, For appellants.

Harris, Anderson, Henley, Shields & Rhodes, L. W. Anderson, Dallas, for appellee.

O'QUINN, Justice.

Suit was brought in Dallas County for wrongful death of passengers in a chartered aircraft that crashed into the side of a mesa in Colorado on November 3, 1964. The pilot and all the passengers were killed. Everyone aboard the plane was a resident of Texas, except one passenger who resided in Illinois.

At the time of the accident, the plane was returning to Texas, after take-off at Billings, Montana, on the last leg of an extensive journey. The passengers had left Texas about ten days previously on a business trip to western United States, with stops in New Mexico, Nevada, Oregon, and Montana.

Each of the two defendant corporations was domiciled in Texas. Three of the four passengers killed were executives of Dr. Pepper Company, a corporation having its principal place of business and its national headquarters in Texas. The trip west had been made in behalf of Dr. Pepper Company under a contract made by this company in Texas with Mustang Aviation, Inc., appellee, whose principal place of business was Love Field, Dallas, Texas. The pilot had been hired in Texas, and the aircraft was garaged, maintained, licensed, and contracted for in Texas.

The only connection between the aircraft, its pilot and passengers, with the State of Colorado was the crash itself near Kim and a landing at Denver earlier that day for refueling and to obtain weather information, which took about an hour.

The question to be decided is whether the law of Colorado, the place of the accident, or the law of Texas, the place of trial, shall be followed and applied.

The Texas wrongful death statute places no limit on compensable damages. The Colorado statute imposes a limit of $25,000 for each death. This limitation is the principal difference between the two statutes. Under the judgment of the district court, this difference, depending upon final determination of the case in the appellate courts, could amount to $100,000.

The cause was submitted to the trial court under an agreed statement of facts, pursuant to Rule 263, Vernon's Ann.Rules Civ.Proc., and the court's judgment makes allowance for the several results that might flow from a final decision in the appellate courts.

The district court applied the law of Colorado, awarding damages in the sum of $24,000 to each group of survivors of the four passengers. The sum of $96,000 was paid into the registry of the court to be distributed equally to each of the four groups of survivors. The judgment provided for an additional sum of $100,000 to be paid by appellee if on appeal it is found the trial court should have applied the Texas law imposing no limit on damages, instead of the Colorado law limiting compensable damages.

Appellants, survivors of the four passengers, contend that the law of Texas should have been followed by the trial court. Appellants seek to show that because Texas is the state having the most significant total relationship with the flight and the sole significant interest in the measure of recovery allowed to those survivors who are residents of Texas, and the arbitrary limitation on damages recoverable under the Colorado wrongful death statute should not be applied by the Texas courts to limit appellants' recovery.

Appellee contends that Article 4678, Vernon's Ann.Tex.Civ.Stats., controls this case in its entirety. This statute, with emphasis added to the same clauses accented by appellee, 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.'

Appellee argues that Article 4678 specifically holds that the damages recoverable are the damages designated by the foreign state that created the cause of action. Appellee asserts that the Texas courts have consistently held that the question of damages, as well as the creation of the cause of action, is controlled by the law of the foreign state in which damages arose.

Article 4678 had its origin in a statute passed by the Texas Legislature in 1913, amended in 1917, and included as amended, with no substantive change, in the Revised Civil Statutes of 1925. Acts 1913, 33rd Leg., ch. 161, p. 338; Acts 1917, 35th Leg., ch. 156, p. 365.

In 1922 in a wrongful death case the Texas Commission of Appeals, in an opinion adopted by the Supreme Court, construed the statute and held that, while the statute required Texas courts to follow the law of this state in all matters pertaining to procedure, the law of the place where the negligent killing occurred must be applied as to substantive matters. Jones v. Louisiana Western Ry. Co. (Tex.Com.App., 1922), 243 S.W. 976.

On this point the Court stated:

'It is the cause of action given by the law of the state in which the negligent killing occurred that our courts are authorized to enforce. 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.' 243 S.W. 976, 978, col. 2.

Jones v. Louisiana Western Ry. Co., supra, was decided in October, 1922. Shortly thereafter, in February, 1923, the Texarkana Court of Civil Appeals, in a case in which the Supreme Court refused a writ, decided that Texas courts may award damages for mental and physical suffering in a wrongful death suit, brought in Texas for negligent killing in another state, if such recovery would be allowed in the foreign state, even though not recoverable in Texas on the same tort if committed in this state. Davis v. Gant, Tex.Civ.App., Texarkana, 247 S.W. 576 (writ ref.). Precisely, the court held that, 'While our statute does not authorize a recovery of such damages when the injury occurs in this state, article 7730 1/2, as contained in Complete Texas Statutes of 1920 (Article 4678, R.S. 1925), permits such a recovery when authorized by the laws of another state where the injury occurs.' 247 S.W. 576, 580, col. 2.

In October, 1923, about a year following the decision in Jones v. Louisiana Western Ry. Co., the Commission of Appeals again construed the statute and dismissed the lawsuit for want of jurisdiction, holding that the laws of Mexico were so materially dissimilar to Texas laws as to be incapable of enforcement or application by Texas courts for personal injuries occurring in Mexico. El Paso and Juarez Traction Co. v. Carruth (Tex.Com.App., 1923), 255 S.W. 159.

In reaching this decision the Commission followed an earlier holding of the Supreme Court in Mexican National Railroad Co. v. Jackson, 89 Tex. 107, 33 S.W. 857, 31 L.R.A. 276 (1896), as to want of jurisdiction where great dissimilarity in laws prevented application of foreign laws by Texas courts.

More recently, the holding in El Paso and Juarez Traction Co. v. Carruth, supra, has been followed in a suit in Texas for injury in an aircraft take-off after forced landing in Mexico. Carter v. Tillery, Tex.Civ.App., Amarillo, 257 S.W.2d 465 (writ ref. n.r.e.). In that case the court construed Article 4678 to hold that the law of the place where injury occurred will control. The case was dismissed because the Texas tribunal did not have power or authority to apply and enforce the law of Mexico as to damages, awarded in Mexico on a periodic basis instead of lump sum as provided under Texas law.

In contending that the Colorado statute limiting the amount of recovery should not control, and that the Texas law containing no such limitation should prevail, appellants advocate a doctrine of recent origin. That doctrine holds that the most significant relationship with the occurrence, and with the parties, should determine the rights and liabilities of the parties. This is clearly contrary to the general rule followed in Texas that the courts look to the law of the place where the wrongful act or neglect took place.

The evolution of the new doctrine is best illustrated by the change in the Restatement, Conflict of Laws. The original Restatement directed looking to the law of the place of the wrong, which was characterized as the 'state where the last event necessary to make an action liable for an alleged tort took place.' (Sec. 377). In a tentative draft, invoked by appellants and cited by authorities embracing the doctrine, the Restatement, Second, Conflicts of Law, looks to the 'local law of the state which has the most significant relationship with the occurrence and with the parties.' Tentative Draft No. 9, sec. 379. See: Seguros Tepeyac, S.A., Compania Mexicana, etc. v. Bostrom (U.S.C.C.A., Fifth Cir., 1965), 347 F.2d 168, 175, col. 2, and footnote 4a quoting Restatement, pp. 175-176.

In applying the doctrine, a court will consider various important contacts in deciding which state, that of the forum or that of the foreign state, had the more significant relationship with the event, out of which the injury came, and with the parties themselves. These important contacts will...