This
was an action by the defendants in error, Lena M. Slater, and
William F. Slater, Jesse R. Slater, Annie E. Slater, and
Henry G. Slater, minors, surviving wife and children of
William H. Slater, deceased, against the Mexican National
Railroad Company (the plaintiff in error), to recover damages
for the death of the deceased. The petition is in the usual
form until it reaches the ninth paragraph, and then it is in
the words and figures following:
'(9)
Plaintiffs further allege that by the laws of Mexico which
now exist and existed and were in force at the time and place
of the happening of the killing of William H. Slater through
the defendant's negligence as aforesaid, they, the
plaintiffs, have had the right of action against the
defendant for their damages, and they say that the following
were, and are now, the laws of Mexico applicable to this
case, out of which the said right of action grew, and by
virtue of which the same now exists in the said republic of
Mexico, to wit:
'From
the Federal Constitution of the Mexican United States:
''Art
72. Congress has power: * * * (22) To enact laws
governing the general lines of communication, and
governing postoffices and mails.'
''Art.
97. The federal court has jurisdiction: (1) Of all
questions growing out of the execution and application of
the federal laws, except when the application of the law
only affects interests of individuals, in which case the
local judges and tribunals of the state shall entertain
jurisdiction.'
'From
the Penal Code of Mexico:
''Art.
4. A crime is a voluntary infraction of a penal law,
doing that which it prohibits, or neglecting to do that
which it commands.
"Art.
5. A misdemeanor is the infraction of police regulations
or proclamations and good government.
"Art.
6. There are intentional crimes, and crimes resulting
from neglect.'
''Art.
11. Negligent crimes exist: (1) Where an act is done, or
a duty omitted, which, although lawful in itself, is not
so by reason of its consequences, if the accused fails to
provide against the consequences, through negligence,
want of reflection or care, by not making proper
investigations, by not taking necessary precautions or
through unskillfulness in any art or science, the
knowledge of which is necessary in order that the act
done may not result in injury. Unskillfulness is not
punishable when he who does the act does not profess the
art or science necessary to be known, and acts when
impelled by the gravity and urgency of the case. * * *
(3) Where the question relates to an act which is
punishable solely by reason of the circumstances under
which it is done, or by reason of a circumstance personal
to the party aggrieved; if the accused is ignorant of
such circumstance, through not having previously made the
investigation which the duty of his profession or the
importance of his case demands.'
'Pen.
Code, bk. 2. ' Civil Liability in Criminal Matters':
"Art.
301. The civil liability arising from an act or omission
contrary to a penal law consists in the obligation imposed
on the party liable, to make (1) restitution, (2)
reparation, (3) indemnization, and (4) payment of judicial
expenses.'
"Art. 304. Reparation comprehends: Payment of all
damages caused to the injured party, his family or a third
person for the violation of a right which is formal,
existing and not simply possible, if such damages are
actual, and arise directly and immediately from the act or
omission complained of, or there be a certainty that such
act or omission must necessarily cause, a proximate and
inevitable consequence.
"Art.
305. Indemnization imports: The payment of damages, that
is, of that which the injured party fails to enjoy as a
direct and immediate consequence of an act of omission by
which a formal, existing and not merely possible right is
attacked, and for the value of the fruits of the thing
usurped and already consumed, in the cases in which the
same should be done conformably with civil right.
"Art.
306. The condition required by the two preceding articles,
that the damages and injuries should be actual, shall not
prevent that the indemnization of subsequent damages and
injuries be exacted by a new suit, when they shall have
accrued; if they proceed directly from, and a necessary
consequence of, the same act or omission from which
resulted the previous damages or injuries.
"Art.
307. The payment of judicial expenses solely embraces those
absolutely necessary, which the injured party incurs for
the purpose of investigating the act or omission which
causes the criminal proceeding and to avail himself of his
rights in such proceeding or in the civil suit.
"Art.
308. The civil responsibility cannot be declared except at
the instance of the party entitled to recover.
"Art.
309. The judges who adjudicate upon the civil
responsibility shall be controlled by the provisions of
this title, so far as its provisions extend; on other
questions, they shall follow, according to the nature of
the suit, the provisions of the civil or of the commercial
laws which may be in effect at the time of the happening of
the act or omission causing the civil responsibility.
"Art.
310. The right to civil responsibility forms a part of the
estate of a decedent and descends to his heirs and
successors, provided it be not the case of the following
article, or that it arise from injury or defamation, and
that, the offending person having been able in the
life-time to bring his suit, he neither did so nor directed
his heirs to sue; in such case the offense shall be
understood as remitted.
"Art.
311. The action to enforce civil responsibility demanding
support of a person guilty of homicide is personal, and
belongs exclusively to the persons named at the end of
article 318 as directly damages. Consequently such action
forms no part of the estate of the deceased, nor is it
extinguished, although the latter pardon the offense in
life.'
"Art.
318. The civil responsibility that grows out of a homicide
done without right (or justification) comprehends the
payment of the indispensable expenses of the burial of the
body, the expenses and necessary charges made for the cure
of the deceased, the damages that the homicide causes to
the property of the deceased, and of the support not only
of the widow, descendants and ascendants of the deceased,
who were being supported by him, he being under legal
obligations to do so, but also to the posthumous
descendants that he may leave.
"Art.
319. The obligation to furnish support shall last during all
the time that the deceased might have lived if the homicide
had not killed him, and that time shall be calculated by the
judge according to the table at the end of this chapter, but
taking into consideration the state of the health of the
deceased before the homicide was committed. As limitation of
this rule the obligation shall cease: (1) At whatever time it
shall not be absolutely necessary for the subsistence of
those entitled to receive it. (2) When those beneficiaries
get married. (3) When the minor children become of age. (4)
In any other case in which, according to law, the deceased,
if alive, would not be required to continue the support.
"Art.
320. In order to fix the amount which should be given as the
measure of support, the ability of the party responsible for
the killing shall be taken into consideration and the
necessities and circumstances of the persons entitled to
receive it.'
"
'Art. 325. * * * Table of mortality and expectancy of
life:
A
10......... Corresponded ........... 40.80
"
15......... " ........... 37.40
"
20......... " ........... 34.26
"
25......... " ........... 31.34
"
30......... " ........... 28.52
"
35......... " ........... 25.72
"
40......... " ........... 22.89
"
45......... " ........... 20.05
"
50......... " ........... 17.23
"
55......... " ........... 14.51
"
60......... " ........... 11.05
"
65......... " ........... 09.63
"
70......... " ........... 07.58
"
75......... " ........... 05.87
"
80......... " ........... 04.60
"
85......... " ........... 02.00'
'Federal Civil Code, chap. iv:
"Art.
205. The obligation to give support is reciprocal; he that
gives support has at the same time the right to ask it.
"Art.
206. Married people in addition to the general obligation
imposed by matrimony, have that of giving support in cases of
divorce and others designated by law.
"Art.
207. Fathers are obliged to support their children. If it
should be impossible for parents to do so, or should they
become unable to do so, the obligation falls upon other
ascendants by both lines of ascendancy who are nearest of
kin.
"Art.
208. The children are obliged to give support to their
parents. If it is impossible for the children to do so, or
they are unable to do so, then those descendants next in kin
are obliged to do so.'
"Art.
211. The support comprehends eating, dress, habitation and
assistance in case of sickness.
:'Art.
212. In regard to minor's support it comprehends in
addition to the necessary expenses for the primary education
of the party entitled to support, and to furnish him some
calling, art or profession, honest and adequate to his sex
and personal circumstances.'
''Art.
214. The support should be proportioned according to the
abilities of those who have to give it, and the necessities
of those who have to receive it.'
''Art.
220. The assurance of the support may consist in a
mortgage, bond or deposit of sufficient amount to cover the
support.'
''Art.
225. The right to receive cannot be renounced nor is it an
object of transfer or
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