Mexican Cent. Ry. Co. v. Mitten

• Decision Date: 13 May 1896
• Citation: 36 S.W. 282
• Parties: MEXICAN CENT. RY. CO. v. MITTEN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

36 S.W. 282

MEXICAN CENT. RY. CO. v. MITTEN.¹

Court of Civil Appeals of Texas.

May 13, 1896.

Appeal from district court, El Paso county; C. N. Buckler, Judge.

Action by Harry Mitten against the Mexican Central Railway Company for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Falvey & Davis, for appellant. Leigh Clark, A. G. Wilcox, and T. T. Teel, for appellee.

FLY, J.

On the 9th day of July, 1889, a wreck occurred on the railway of appellant near Chihuahua, Mex., in which appellee was injured and he instituted suit to recover $25,000 damages. It was alleged in the petition upon which the case was tried that appellee was a newsboy on the train of appellant, on his way from El Paso, Tex., to the city of Mexico; that he was a passenger thereon, arrangements having been made by his employers with appellant by which he was transported between the points named from time to time; that, on the date above named, the train on which appellee was a passenger was derailed and wrecked, through the negligence of appellant, and appellee seriously and permanently injured. The negligence was alleged to consist in failure to keep the roadbed in proper condition, in running the train at a rapid and reckless rate of speed, failure to send out track walker after a heavy rain that just previously had fallen, and the recklessness of the employés in refusing to obey instructions to run slowly, and to stop and examine all bridges before attempting to cross the same. The case was tried by a jury, and resulted in a verdict and judgment for $5,000 for appellee.

We find that the allegations in the petition were substantially proved. Appellee was a passenger on the train of appellant, and was seriously and permanently injured, through the negligence of appellant in failing to use reasonable care in the construction and repair of its roadbed, and in not using ordinary care in running its train and in inspecting its roadbed after a heavy rain. The following order was given to the conductor on the wrecked train: "Heavy rains during night between Sans and Chihuahua. You are the first train over this track. Run very slowly and carefully, and stop and examine all bridges before you pass or cross." No examination of the bridge was made before the accident, and the train was running at the rate of over 30 miles an hour when the accident occurred. The breach in the approach to the bridge was open and apparent, and would have been discovered by the exercise of ordinary care. In the third amended petition, it was alleged that appellee was a resident of El Paso county, Tex., and that appellant was a corporation duly incorporated by and under the laws of the state of Massachusetts, and was engaged in operating a railroad between El Paso, Tex., and the city of Mexico, in the republic of Mexico, and had a local agent and representative residing in the city of El Paso. It was also alleged that the injury was inflicted on appellee by appellant a few miles north of Chihuahua, in the republic of Mexico.

It is urged, through the first and second assignments of error, that no cause of action was shown by the petition that was cognizable by the courts of Texas, because the injury was inflicted in a foreign country, and it does not appear from the petition that the laws of Mexico would entitle appellee to recover damages of appellant by reason of the injuries; that it is not shown that appellee could not have subjected appellant to the jurisdiction of the courts of Mexico, and no necessity is shown in the petition for the courts of Texas to assume jurisdiction of the cause. These questions were not raised in the lower court, but for the first time in this court. The only authority cited in support of the propositions is the case of Railroad Co. v. Jackson, 33 S. W. 861, recently decided by the supreme court of this state. From that greatest and most perfect system of laws evolved by the minds of our English ancestors, from the necessities, exigencies, and difficulties surrounding them through the centuries of their history, have American states drawn largely for the laws and system of jurisprudence by which our rights are preserved and our wrongs redressed; and to this reservoir of legal lore it is not only interesting, but profitable and instructive, for us to go, when questions of perplexity and doubt present themselves for solution. The policy of England in the matter of opening her courts to litigants who present themselves with their grievances at their doors has been of the most liberal, enlightened, and generous character. Not only is it the boast of the English people that their courts are ever open to protect the rights and redress the wrongs of those aggrieved by acts done within their own confines, but, with a few simple conditions, the privilege is extended in all transitory actions, no matter where the cause of action may have arisen. Under the wise and beneficent operation of that system, except in certain cases, a remedy can be found in English courts for torts committed in places outside the territorial jurisdiction of those courts. The rule is thus stated by Sir Frederick Pollock, the erudite scholar and distinguished writer: "(1) The act may be such that, although it may be wrongful by the local law, it would not be a wrong if done in England. In this case no action lies in an English court. * * * (2) The act, though in itself it would be a trespass by the law of England, may be justified or excused by the local law. Here, also, there is no remedy in an English court. * * * But nothing less than the justification by the local law will do, (3) The act may be wrongful by both the law of England and the law of the place where it was done. In such a case an action lies in England, without regard to the nationality of the parties, provided the cause of action is not of a purely local kind, such as trespass to land." Webb's Pol. Torts, pp. 237-239. In the case of Phillips v. Eyre, L. R. 6 Q. B. 1, cited by Pollock, the principle is thus stated: "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled: First. The wrong must be of such a character that it would have been actionable if committed in England. * * * Secondly. The act must not have been justifiable by the law of the place where it was done." These rules are plain, enlightened, reasonable, and just, and have been the guide of English courts in the administration of justice in the classes of cases mentioned for many years. A review of American authorities shows the adoption of the same rules in America. Judge Cooley, in his great work on Torts, says: "It is a general rule that, for the purpose of redress, it is immaterial where a wrong was committed; in other words, a wrong being personal, redress may be sought for it, wherever the wrongdoer may be found. To this there are a few exceptions, in which actions are said to be local, and must therefore be brought not only within the country, but also within the very county where they arose. The distinction between transitory and local actions is this: If the cause of action is one that might have arisen anywhere, then it is transitory; but, if it could only have arisen in one place, then it is local." Cooley, Torts (2d Ed.) p. 551. In support of the text, the English case of Mostyn v. Fabrigas, 1 Cowp. 161, is cited. In that case the governor of a British colony was prosecuted in England, and a heavy judgment recovered against him for an assault and imprisonment of the plaintiff, without authority of law in the colony. In another cited English authority it was held to be unimportant whether the foreign tort was or was not committed within territory subject to the British crown, the only proviso being that, to support an action, an act complained of must have been wrongful or punishable where it took place, and that whatever would be a good defense to the action, if brought in the foreign state would be a good defense everywhere. In the case of Leonard v. Navigation Co., 84 N. Y. 50, it was said: "The rule, no doubt, is that all common-law actions for an injury in a foreign country are transitory in their character, and may be brought in another state or country besides that in which they originated. In contemplation of law, the injury arises anywhere and everywhere." This was the enlightened English rule, as we have heretofore seen; and in every state of the Union, unless it be Texas, the same rule has been adopted. Where the action is given by statute, and is not one that arose at common law, it becomes necessary for the plaintiff to establish the existence of a law in the foreign state that gives the right of action, as well as in the state where the case is tried. However, where the wrong is one for which a remedy was given at common law, the presumption will prevail that the common law is in force in the foreign state, and the remedy will be...