Ross v. Kansas City S. R. Co.

• Decision Date: 20 February 1904
• Parties: ROSS v. KANSAS CITY S. R. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 626

ROSS v. KANSAS CITY S. R. CO.^*

Court of Civil Appeals of Texas.

February 20, 1904.

Appeal from District Court, Bowie County; J. M. Talbot, Judge.

Action by Lee Ross against the Kansas City Southern Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

F. M. Ball and Thigpen & Foster, for appellant. Glass, Estes & King, for appellee.

BOOKHOUT, J.

This action was instituted by this appellant, the plaintiff below, in the district court of Bowie county, Tex., for recovery of $2,000, actual damages, of this appellee, Kansas City Southern Railroad Company, for permanent personal injuries resulting from the negligence and carelessness of such appellee, its servants, agents, and employés. After the evidence had been heard, the trial court peremptorily instructed the jury to return a verdict for the appellee, responsive to such portion of its answer which interposed the defense of a bar by one year's limitation and discharge under the statutes of the state of Louisiana, and judgment was accordingly entered that appellant take nothing; hence this appeal.

Appellant admits the existence of the following facts: That he is a resident of the state of Louisiana, where his injuries occurred, while in the performance of his duties, on the 20th day of May, 1901; that this suit was filed in the district court of Bowie county, Tex., on the 14th day of June, 1902— more than a year, but less than two years, after the cause of action accrued.

It is conceded by the appellee that the evidence upon the merits of the case, independent of the question of prescription, and extinguishment of plaintiff's cause of action in Louisiana, prior to the time of filing this suit, was sufficient to require the submission of the case to the jury on the issue as to whether plaintiff was injured as alleged in his petition, and whether such injuries were the result of negligence on the part of defendant. The trial court was of the opinion that the uncontroverted testimony showed that the plaintiff's cause of action was one created by statute, and the statutes creating the cause of action absolutely discharged and released the same by reason of plaintiff's failure to file his suit within one year from the accrual of the cause of action. Appellant contends that the issue presented is that of limitation, and that defendant cannot invoke the statute of limitation of Louisiana, which bars a cause of action for personal injuries in one year, in a cause pending in the courts of Texas, where the period of limitation to such cause of action is two years, thereby causing the lex loci to prevail, instead of the lex fori.

The question arises (1) on the action of the court in overruling plaintiff's demurrer to defendant's answer, in which it set up that the cause of action for the recovery of such damages as appellant had sustained depended entirely on the statute law of the state of Louisiana, which statutes created the cause of action, and prescribed the time within which same must be brought, and that the prescription laws of said state had the effect to extinguish a cause of action, as distinguished from making it unenforceable, and that the time within which this cause of action, by the laws of the state of Louisiana, had to be brought, was one year, and that a failure to bring such suit within said time would preclude a recovery; and (2) in instructing a verdict for defendant.

It is shown by the undisputed facts in this case: (1) The cause of action on which plaintiff sought a recovery was created by the statutes of the state of Louisiana; (2) the prescription laws of that state directly referring to the right thus created not only made the right unenforceable after the prescribed period, but totally extinguished and discharged it; (3) both parties resided in the state of Louisiana during the period of prescription, and no suit was instituted there or elsewhere during that time on the claim. It was further shown that the common law...