Southern Pac. Co. v. Dusablon

• Decision Date: 11 December 1907
• Citation: 106 S.W. 766
• Parties: SOUTHERN PAC. CO. v. DUSABLON.
• Court: Texas Court of Appeals

106 S.W. 766

SOUTHERN PAC. CO. v. DUSABLON.

Court of Civil Appeals of Texas.

December 11, 1907.

Rehearing Denied January 15, 1908.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by Arthur C. Dusablon against the Southern Pacific Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and dismissed.

Beall & Kemp, for appellant. Patterson & Wallace, for appellee.

NEILL, J.

This suit was brought by the appellee against appellant to recover damages for personal injuries alleged to have been inflicted by the negligence of the company on the 26th of April, 1906, at Lordsburg, N. M. In our view of the case it is unnecessary to state the grounds of negligence averred, nor the specific injuries sustained. The appellant answered by a plea of privilege, claiming the right to be sued in Harris county, Tex. Also by special demurrer, raising the question of jurisdiction, which being overruled, it filed a special plea to the jurisdiction of the court, predicating such plea upon the statute set out in our conclusions of law, and upon the fact that appellee was a resident citizen of New Mexico at the time of his alleged injuries and when this suit was brought. This plea being overruled, appellant pleaded certain defenses in bar, which, in view of the disposition we shall make of the case, are not necessary to further mention. The trial of the case resulted in a verdict and judgment for the appellee.

Conclusions of Fact.

As we shall reverse the judgment and dismiss the suit upon the ground that the court erred in not sustaining appellant's plea and demurrer to the jurisdiction, these conclusions will be confined to such facts as pertain to that plea. It was averred and proved that, when plaintiff received the personal injuries upon which he bases his action, he was a resident citizen of the territory of New Mexico; that his injuries were sustained in that territory; that at the time he was injured, and when the suit was brought, defendant was a foreign corporation, having been incorporated under the laws of the state of Kentucky, operating a railroad in the territory of New Mexico, where it maintained an office and had agents through whom service could be had on the company under the laws of said territory; that the statute set out in our conclusions of law was passed by the Legislature of New Mexico, and was in full force and effect at and from the time the injuries complained of were inflicted and the suit instituted until it was tried.

Conclusions of Law.

Appellant's first and second assignments of error, which involve substantially the same question, and will be considered together, are as follows:

"The trial court erred in not sustaining defendant's special demurrer questioning the court's jurisdiction, which special demurrer is, in substance, as follows: The defendant, excepting to and protesting against the action and order of the court in overruling its plea of privilege, appears for the single and special purpose of objecting to the jurisdiction of this court, and for that purpose specially excepts to the plaintiff's petition and says: That it appears therefrom that the plaintiff's cause of action, if any he has, did not arise in the state of Texas, but arose and accrued at Lordsburg, in the territory of New Mexico, at which time, and the time of the filing of his petition, it appears therefrom that the plaintiff was a resident citizen of said town of Lordsburg and territory of New Mexico, and the defendant a foreign corporation, nonresident of Texas, and an inhabitant of another state. Wherefore this court ought not to take jurisdiction of this cause, and of this the defendant prays the judgment of the court.

"The trial court erred in overruling the defendant's plea to the jurisdiction based on the laws and act of New Mexico set up in said plea, for the reason that plaintiff had not filed his suit in New Mexico, as required by said laws and act as a condition precedent to his right to a recovery, and because said laws and act expressly repudiated the right of the courts of Texas to take jurisdiction of plaintiff's cause of action, which arose in New Mexico, and on no principle of comity should this court have entertained jurisdiction. On the contrary, inasmuch as the said act of New Mexico, set up in defendant's plea, expressly repudiated the right of Texas courts to take jurisdiction of actions of this sort arising in said territory, this court ought not to take jurisdiction of this suit."

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 whenever 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 within the country where they arose. As applied to torts, these exceptions may be said to consist of: (1) Those where the lex loci delicti is in direct contravention of the law or policy of the forum; (2) where the remedy prescribed for the tort by the lex loci delicti is penal in its character; and (3) statutory torts, where the statute, in creating the liability, at the same time, creates a mode of redress peculiar to that state, by which alone the wrong is to be remedied. To these exceptions, however, there are certain limitations and qualifications not necessary to mention here. It is obvious that the second exception has no application to this case. But it was earnestly contended by counsel for appellant in brief and oral argument that the first has; and among other cases they cite Mex. N. Ry. Co. v. Jackson, 89 Tex. 113, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28, in support of the contention. Before showing the distinction between that case and the one at bar, we deem it not improper to observe that the policy of a state or nation must be determined by its Constitution, laws, and judicial decisions, not by the varying opinions of lawyers or judges as to the demands or interest of the public. As has been well said: "Anything more indistinct and incapable of certainty or uniformity than the requirement of `public policy' can hardly be imagined. This principle is now invoked with increasing frequency, and sometimes, at least, seems to be made use of as authority for deciding in whatever way the court thinks would, on the whole, be most useful. It need not be said that such use of such principle must diminish greatly the certainty and uniformity of the law." 2 Parsons on Contracts (9th Ed.) 265. It is because things have been either enacted or assumed to be by the common law unlawful, and not because a judge or court have a right to declare that such and such things are, in his or their view, contrary to public policy. Janson v. Driefontein Con. Mines (1902) A. C. 484, 491. In that case, the Earl of Halsbury said: "I do not think that the phrase `public policy' is one which in a court of law explains itself. It does not leave at large to each tribunal to find that a particular contract is against public policy. * * * I deny that any court can invent a new head of public policy."

Ever since the adoption by this state of the common law as the rule of decision a wrongful injury to the person of another has been actionable in its courts, and redress given the injured party, regardless of where the injury was inflicted, if such personal injury (not resulting in death) was actionable in the country where such wrong was done. It may be safely said, in view of our laws and judicial decisions, that it has never been the policy of the state of Texas to furnish a city of refuge or make itself an Alsatia for those who have wrongfully inflicted injuries upon others. But its policy has always been, without counting the costs, if the wrongdoer could be found within its borders to open the doors of its courts to the injured party, though an alien, and mete out the same even-handed justice to parties to the suit that she would had they both been its own citizens and the injury inflicted within its borders. Nor has Texas ever said to any of...