Willis v. Mo. Pac. R'Y Co.

• Decision Date: 22 April 1884
• Docket Number: Case No. 4961.
• Citation: 61 Tex. 432
• Parties: DORA WILLIS v. MO. PAC. R'Y CO.
• Court: Texas Supreme Court

61 Tex. 432

DORA WILLIS

v.MO. PAC. R'Y CO.

Case No. 4961.

Supreme Court of Texas.

Apr. 22, 1884.

ERROR from Grayson. Tried below before the Hon. Richard Maltbie.

The opinion states the case.

A. B. Persons and Woods, Wilkins & Cunninghan, for appellant, cited: Const., art. 16, sec. 26; R. S., arts. 2000, 2002, 2003, 2899; McDonald v. Mallory, 77 N. Y., 564; Pierce on Railroads, 386.

R. C. Foster and A. E. Wilkinson, for defendant in error.

WILLIE, CHIEF JUSTICE.

This is a suit by Mrs. Dora Willis against the Missouri Pacific Railway Company to recover damages for the negligent killing of her husband, who was a brakeman at the time in the service of the company.

The appellee operated a line of railroad running through the Indian Territory into Texas, and had an office and an agent in Grayson county, in this state, in which county this suit was brought. The petition alleged that the injury and the death consequent upon it occurred in the Indian Territory; that the plaintiff and the deceased were residents of Texas at the time; that she resided here at the commencement of this suit, and that the defendant operated its road under a charter, which had been recognized, adopted and put in force in this state by special enactment of the legislature of Texas. It further alleged that the country in which deceased was killed was, at the time of the occurrence and of the beginning of the suit, without law applicable to the deceased, the plaintiff or defendant, or other person residing beyond its boundaries; and that neither deceased, plaintiff, or the defendant, nor any one not a citizen of the country in which Willis was killed, has any civil rights or securities therein, and as to such person said country is as if there were no law at all; and that the defendant was not a citizen of that territory.

Among other defenses filed to the action was a special demurrer to the effect that the petition showed on its face that the injuries and death occurred outside of the jurisdiction of the state of Texas; and that there was in the locality of these occurrences no law giving plaintiff a right of action against the company for causing the death of her husband. This exception was sustained by the court, and the plaintiff declining to amend, the cause was dismissed. From this action of the court Mrs. Willis has appealed to this court, assigning as error the ruling by which the special demurrer was sustained.

By our Revised Statutes, ch. 52, the wife has, in certain cases, a right of action against a railway company for the negligent killing of her husband. It is generally held that at common law no such action could be maintained by her, though the husband might have sued for the injuries so received by him, if death did not ensue.

It is conceded in the petition that, under the laws of the Indian Territory, Mrs. Willis had no right of action against the appellee for the killing of her husband (which is alleged to have occurred in that territory) by reason of the carelessness and negligence of the railroad company, its agents and servants.

The appellant therefore seeks to maintain in Texas a suit for injuries committed in the Indian Territory, where the right to the action is not allowed her by the common law, nor by the law of the place where the cause of action, if it exists, must have arisen, on the ground that she can, under the laws of this state, maintain such a suit.

The rules governing suits arising out of torts committed in a locality other than the government where the redress is sought are about these, as deduced from the authorities upon the subject: Where the action is transitory and is based on personal injuries recognized as such by universal law, the suit may be brought wherever the aggressor is found, irrespective of the provisions of the local law, or whether there be any law at all in force at the place where the wrong was committed. Rorer on Interstate Law, pp. 154, 155.

But where the right of action does not exist except by reason of statute, it can be enforced only in the state where the statute is in existence and where the injury has occurred. That is to say, the cause of action must have arisen and the remedy must be pursued in the same state, and that must be the state where the law was enacted and has effect.

The principle upon which the doctrine rests is the want of power in a state to give her laws an extraterritorial effect. Our state, in providing that the negligent killing of an individual shall constitute a cause of action in certain of his survivors for damages against the party committing the homicide, is providing only for cases occurring within her own borders. She makes that an...