Mexican Cent. Ry. Co. v. Goodman

• Decision Date: 07 December 1898
• Citation: 48 S.W. 778
• Parties: MEXICAN CENT. RY. CO. v. GOODMAN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

48 S.W. 778

MEXICAN CENT. RY. CO. v. GOODMAN.¹

Court of Civil Appeals of Texas.

December 7, 1898.

Appeal from district court, El Paso county; W. R. Smith, Judge.

Action by Samuel Goodman against the Mexican Central Railway Company. After plaintiff's death, Cora Goodman, as administratrix of his estate, continued to prosecute the action. Judgment for plaintiff, and defendant appeals. Reversed.

Falvey & Davis, for appellant. Beall & Kemp, for appellee.

FLY, J.

This suit was instituted by Samuel Goodman to recover damages inflicted upon himself and wife through being ejected from a train belonging to appellant in the republic of Mexico. The cause was tried upon the original petition, and resulted in a verdict for Goodman. The cause was then appealed to this court, and was reversed and remanded. Railway Co. v. Goodman, 43 S. W. 580. Afterwards the death of Samuel Goodman was suggested, and Cora Goodman, his surviving wife, was allowed, as administratrix of the estate of Samuel Goodman, to prosecute the suit. Another trial was had, which resulted in a verdict and judgment for $2,106.15 in favor of appellee. The damages claimed arose out of the refusal to honor certain tickets held by appellee and her husband, and their ejectment from a train of appellant. The facts necessary to an understanding of the opinion are fully stated in our former opinion, and need not be restated.

This is an action for damages arising from a tort. Kelly v. Telegraph Co. (Tex. Civ. App.) 43 S. W. 532. The first assignment presents as error the action of the court in overruling its special exceptions to the petition; the grounds of exception being that the petition showed that the injury was inflicted in the republic of Mexico, and fails to allege that the cause of action of appellee's husband would survive to her under the laws of that country. The damages sued for were for injury to the person of Samuel Goodman and his wife, the appellee in this case, and the action was maintainable in Texas without any allegation that such suit was authorized by the laws of Mexico, because such actions are sanctioned by the universal law; but the further and more difficult question arises, did the action of Goodman survive to his wife under the law of the forum, there being no allegation or proof as to the laws of Mexico on the subject? Under the common law, as well as the civil law, the cause of action brought by Samuel Goodman for damages for his personal injuries would not survive his death. Watson v. Loop, 12 Tex. 12; Taney v. Edwards, 27 Tex. 224; Gibbs v. Belcher, 30 Tex. 81; Railway Co. v. Richards, 68 Tex. 375, 4 S. W. 627. It follows, therefore, that the action, as to the personal injuries sustained by Samuel Goodman, did not survive to his wife, unless the presumption will obtain, in the absence of proof, that the foreign law is the same as that of the lex fori. The matter must be viewed as though Mrs. Goodman had originally instituted the suit, no strength being added to the action by the fact that it was instituted by the husband during his lifetime. Did she have such cause of action after the death of her husband? We think not. Had the action been one that she could have brought at common law, it would be transitory, and could be instituted anywhere that the offender might be found; but, adhering to our opinion in Railway Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282, we hold that "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...