El Paso Electric Ry. Co. v. Carruth

• Citation: 208 S.W. 984
• Decision Date: 23 January 1919
• Docket Number: (No. 914.)
• Parties: EL PASO ELECTRIC RY. CO. et al. v. CARRUTH.
• Court: Texas Court of Appeals

208 S.W. 984

EL PASO ELECTRIC RY. CO. et al. v. CARRUTH.

(No. 914.)

Court of Civil Appeals of Texas. El Paso.

January 23, 1919.

On Rehearing, February 20, 1919.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Suit by James S. Carruth against the El Paso Electric Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Davis, Goggin & Harrington, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for appellants.

John T. Hill, of El Paso, for appellee.

HARPER, C. J.

This suit was instituted by James S. Carruth on March 28, 1918, in the Forty-First district court of El Paso county, Tex., against the El Paso Electric Railway Company and the Juarez Traction Company for personal injuries alleged to have been sustained by him in the city of Juarez, republic of Mexico. The accident and injuries to plaintiff occurred in Juarez on or about the 4th day of January, 1916. The plaintiff, at the time of his injury, was in the employ of the Tri-State Telephone Company as a lineman and repairman. The plaintiff alleged the El Paso Electric Railway Company and Juarez Traction Company owned and operated certain electric light lines in Juarez; that a guy wire belonging to the defendants, used to guy one of their electric light poles, became loosened from the ground, came into contact with a transformer and exposed live wire of the defendants on this pole, became charged, and, having come into contact with the guy wire of a telephone pole, when plaintiff attempted to climb the telephone pole in discharge of his duties as such repairman he received an electric current through his body from defendants' wires, was shocked, burned, thrown to the ground, and seriously injured.

The defendants first interposed a plea to the jurisdiction of the court, setting up that the accident and injury occurred in the state of Chihuahua, republic of Mexico, and that the statutory laws of Mexico governing cases of this character were so dissimilar to those of Texas the courts of Texas should not and would not take jurisdiction, pleading in detail the statutory laws of Mexico governing cases of the character of that set up by plaintiff in his petition. The plea to the jurisdiction was followed by a general demurrer, a general denial, a plea of contributory negligence, and a plea adopting and setting up the facts pleaded in the plea to the jurisdiction in bar of plaintiff's cause of action.

Appellee, by supplemental petition, denies that the laws pleaded by appellants as the laws of Mexico governing the rights of the parties are in fact the laws, and all the laws, of Mexico governing the right of appellee to damages and the measure thereof, and that the laws of torts and negligence in Mexico are substantially the same as those of Texas and the United States, and that a great portion of the law pleaded by appellants as the law governing in this case is in truth the adjective law of Mexico, and is not controlling in determining the right of jurisdiction, but that the substantive law of negligence of the two countries is substantially the same as set forth in appellee's supplemental petition.

The trial court overruled the plea to the jurisdiction, and submitted the case as if the action were for an injury occurring in Texas, except that the questions of mental and physical pain and inability to labor and earn money in the future were not submitted. Submitted to a jury, and upon their verdict judgment was entered for $2,500, from which this appeal.

By several assignments and propositions it is charged that, under the undisputed evidence as to the laws of Mexico, the defendant's plea to the jurisdiction of Texas courts should have been sustained and the cause dismissed (a) because our courts cannot ascertain with sufficient certainty the substantive law of Mexico governing the case; (b) because the laws of the state of Chihuahua and the republic of Mexico are so dissimilar to those of this state covering the right of action, the measure of damages, and the terms of recovery that the courts of Texas cannot and should not enforce them. For these propositions appellant relies upon Railroad Co. v. Jackson, 89 Tex. 107, 33 S. W. 861, 31 L. R. A. 276, 59 Am. St. Rep. 28; Railway Co. v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804; De Herrera v. Tex. Mex. Ry. Co., 154 S. W. 594; Slater v. Ry. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900, etc.

These were all railway negligence cases resulting in death, and others than the injured party sued, and, so far as the report of these cases show, the laws of Mexico applicable to the facts as pleaded were proved as alleged; and we also note that the articles of the Civil and Penal Codes of Mexico relied upon in those cases are pleaded and proved in this case and are here relied upon as a defense. So, if we were limited in our consideration of the points raised here by that which was in effect conceded to be the law in those cases, our holding must of necessity be the same; but, as indicated in the statement of the pleadings of the appellee, it is denied that the law pleaded and proved by appellant is the law applicable to this case, and has specifically set up other articles of the Civil Code of the state of Chihuahua and of the Mexican republic, alleging that in fact and as construed by the courts they are the same as those of Texas, and in support of this pleading has introduced other sections of the Codes of Mexico in evidence, and in addition introduced the testimony of witnesses who qualified as experts, lawyers of long practice in the republic of Mexico, to the effect that, whilst there is no system of reporting the opinions of the Mexico courts, in fact the true meaning of the sections of the laws in evidence in this case is substantially the same as those of Texas, and that the courts there are authorized to and do so construe them; that certain sections of the law apply only to railways, and others apply to other industrial enterprises, and point out those which gave the cause of action against industrial enterprises such as the defendant in this case, under similar facts. In such cases the question of the existence of and abstract meaning of the laws, as is urged by appellee in a counter proposition, becomes a question of fact to be determined by the court or the jury, as the case may be. It could serve no good purpose to quote these articles of the Mexican Code or the evidence of lawyers adduced, so we will not do so. Sierra Madre Construction Co. v. Brick, 55 S. W. 521; St. Louis & S. F. Ry. Co. v. Conrad, 99 S. W. 209; Slater v. Mexican National R. R. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900.

This case was submitted upon special issues, but the question was not submitted, nor was it requested to be submitted; so article 1985, Vernon's Sayles' Statutes of Texas, applies: "* * * The failure to submit any issue shall not be deemed a ground for reversal. * * * An issue not...