Marmon v. Mustang Aviation, Inc.

• Decision Date: 15 May 1968
• Docket Number: No. B--389,B--389
• Citation: 430 S.W.2d 182
• Parties: Lucy MARMON et al., Petitioners, v. MUSTANG AVIATION, INC., Respondent.
• Court: Texas Supreme Court

Page 182

430 S.W.2d 182

Lucy MARMON et al., Petitioners, v. MUSTANG AVIATION, INC., Respondent.

No. B--389.

Supreme Court of Texas.

May 15, 1968.

Rehearing Denied July 10, 1968.

White, McElroy & White, B. Thomas McElroy, W. D. White and Adair Dyer, Jr., Dallas, for petitioners.

L. W. Anderson, Robert C. Johnson, Dallas, for respondent.

NORVELL, Justice.

This is an action for the wrongful deaths of Ernest F. Marmon, Max E. Green, Max W. McNeil and George G. Sherry, who lost their lives when an airplane crashed into a mesa near the town of Kim in southeastern Colorado. The controlling question, as stated by the Court of Civil Appeals, '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.' We are confronted with a problem of stare decisis and hold that the Colorado law applies.

The case was tried upon agreed facts and a complete and accurate statement is contained in the opinion of the Court of Civil Appeals. All of those killed were residents of Texas with the exception of George G. Sherry who resided in Illinois. They were on a business trip which originated in Texas. The plane was returning to Texas and had landed in Denver for a few minutes to refuel and obtain weather information. The defendant, Mustang Aviation, Inc., is a Texas corporation, and it was stipulated that the negligence of Mustang's pilot, also a resident of Texas, was the proximate cause of the plane crash and the death of the passengers.

Wrongful death statutes have been adopted in Texas, Colorado and Illinois. The Colorado law has a statutory limitation of $25,000.00 for each wrongful death. The Illinois limitation is $30,000.00. Texas has placed no limitation upon the amount of recovery.

The trial court rendered judgment in accordance with Colorado law. The Court of Civil Appeals affirmed. 416 S.W.2d 58. Petitioners here present the primary contention that Texas law and not Colorado law is applicable to the case.

The Court of Civil Appeals in an able opinion sets forth the law of this state as heretofore declared by the Legislature and the Texas courts. This court has repeatedly held that our wrongful death statute, Article 4671, ¹ does not have extra-territorial force. However, the lower appellate court calls attention to recent developments relating to the 'most significant contacts rule' which is described as one of the newer concepts of conflicts of law. It is stated in the opinion that:

'We have been urged to adopt the new doctrine of most significant contacts. We find much merit in the doctrine, and, if free to act in a cause of first impression, we would be inclined to explore the doctrine more fully with a view to consideration of adoption. But we are bound by Article 4678 and the construction placed on the statute by the Supreme Court and by decisions of other courts of Texas. * * *'

The petitioner vigorously and ably argues that the State of Colorado actually has little concern with this unfortunate accident which took the lives of four Texans and one Illinois resident while they were returning to Texas on a business trip in behalf of a Texas based commercial activity, and points out that the defendant is a Texas corporation and that the negligent pilot was also a Texas resident. From these circumstances, it is contended that essentially this is a Texas controversy which should be controlled by Texas law.

The portions of our wrongful death statute which are applicable here are:

'Article 4671. Cause of action

'* * * An action for actual damages on account of the injuries causing the death of any person may be brought in the following cases:

'1. When an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskillfulness, or default of another person, association of persons, joint stock company, corporation * * * his, its or their agents or servants, such persons * * * shall be liable in damages for the injuries causing such death. * * *

'2. When an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskillfulness, or default of the proprietor, owner, charterer or hirer of any industrial or public utility plant, or any railroad, street railway, steamboat, stage-coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, wrongful act, neglect, carelessness, unskillfulness or default of his, their or its servants or agents, such proprietor, owner, charterer or hirer shall be liable in damages for the injuries causing such death. * * *'

'Art. 4672. Character of wrongful act

'The wrongful act, negligence, carelessness, unskillfulness or default mentioned in the preceding article must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.'

'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 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.'

The provisions of Article 4678 became a part of the law of Texas long after the original wrongful death statute was adopted. See Acts 1913, 33rd Leg. ch. 161, p. 338, and Acts 1917, 35th Leg. ch. 156, p. 365. This enactment does not purport to give extraterritorial effect to the Texas wrongful death statute. Its purpose was simply to provide that a right of action arising under the laws of a foreign state or country for the wrongful death of a Texas citizen could be enforced in the Texas courts. The words, 'whenever the death * * * of a citizen of this State * * * for which a right to maintain an action * * * is given by the statute or law of such foreign state * * * Such right of action may be enforced in the courts of this State * * *' are abundantly clear as to the legislative intention. ²

As pointed out in the opinion of the Court of Civil Appeals, the courts of this state have repeatedly held that Article 4671 has no extraterritorial application. We need not discuss the Texas cases so holding except as necessary to review one contention which is strongly urged by the petitioner. While some of the cases heretofore decided simply declare that our wrongful death statute has no extraterritorial effect, ³ the early case of Willis v. Missouri Pacific Ry. Co., 61 Tex. 432 (1884), stated a reason or rationale for its holding, viz.:

'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, that is to say, the cause of action must have arisen and the remedy must be pursued in the same state, and that must be the state where the law was enacted and has effect.

'The principle upon which the doctrine rests is the want of power in a state to give laws an extraterritorial effect.'

It is pointed out that in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 587, 7 L.Ed.2d 492, decided in 1962, the Supreme Court of the United States said:

'Where more than one State has sufficiently substantial contact with the activity in question, the forum State, by analysis of the interest possessed by the States involved, could constitutionally apply to the decision of the case the law of one or another state having such an interest in the multistate activity.'

It is argued that the rationale stated in Willis is no longer operative and under the view taken by the Supreme Court of the United States, as well as other authorities, it cannot now be legitimately maintained that a state cannot adopt a statute having an extraterritorial effect. If this proposition be accepted as sound, it does not necessarily follow that we should now hold that Article 4671 has an extraterritorial thrust. It would be far reaching, to say the least, for us to say that an enactment of the Legislature adopted over a hundred years ago now has a different meaning and a more far reaching thrust than it did when construed by this court in 1884. We are not here dealing with the common law which is our special domain but with a cause of action which did not exist at common law but is wholly a creature of statute. And in the area of statutory construction, the doctrine of stare decisis has its greatest force. Moss v. Gibbs, 370 S.W.2d 452 (Tex.Sup.1963). A statute is the creation of the Legislature and should an interpretation of a statute by the courts be unacceptable to the Legislature, a simple remedy is available by the process of legislative amendment. United States v. South Buffalo Ry., 333 U.S. 771, 68 S.Ct. 868, 92 L.Ed. 1077 (1947).

As heretofore stated, an action for wrongful death did not exist at common law. ⁴ In 1846, the British Parliament passed Lord Campbell's Act (9 & 10 Vict. Ch. 93), providing for the recovery of damages in case of wrongful death. Practically all the American jurisdictions adopted similar acts with varying provisions. Many of these acts, including that adopted in Colorado, placed a limit upon the amount of recovery. The first wrongful death statute was adopted in Texas in 1860 (Acts (1860, 8th Leg. ch. 35, p. 32, 4 Gammel's Laws of Texas 1394).

The cause of action is provided for in Article 4671. There is nothing contained in the wording of this article nor the wording of any of the other articles contained in Title 77, 'Injuries Resulting in...