*1 was, in the exercise the mistake been, dis- diligence should have
reasonable here, controlling
covered. This below reversed and judgments trial in
cause is remanded for view of summary judgment rec-
indications respects. in these
ord of issues of fact is so ordered. al., Petitioners,
Lucy MARMON et AVIATION, INC., Respondent.
MUSTANG
No. B-389.
Supreme Court of Texas.
May 15, 1968.
Rehearing July 10, Denied *2 White,
White, McElroy B. Thomas & Dyer, McElroy, and Adair D. White W. Jr-> Dallas> petitioners. Anderson, Johnson,
L. Robert C. W. Dallas, respondent.
NORVELL, Justice. an deaths
This is action for Marmon, Green, Max of Ernest Max E. F. Sherry, who George McNeil and W. G. airplane an crashed lost lives when a mesa Kim into near town of in south- question, controlling eastern The Colorado. Appeals, as stated the Court of Civil Colorado, place “is whether law of accident, Texas, or the law of trial, applied.” shall followed problem We are confronted with of stare decisis and hold that Colorado applies. upon
The case agreed was tried facts complete and a and accurate statement contained in the Court of Appeals. Civil All killed of those were exception residents of Texas with the George Sherry G. who resided in Illinois. They on a trip origi- were business nated in plane returning Texas. The was to Texas and had landed' in for a Denver few minutes to refuel and obtain weather in- defendant, formation. The Mustang Avia- tion, Inc., corporation, is a Texas and it stipulated was the negligence of Mustang’s pilot, Texas, also a resident of proximate plane cause crash and the death passengers. Wrongful adopt- death statutes have been Texas, ed in Colorado and Illinois. Colorado law has a limitation $25,000.00 for each death. $30,000.00. Illinois limitation Texas has placed no limitation the amount of recovery.
The trial court judgment rendered accordance with Colorado law. Court Appeals of Civil affirmed. 416 S.W.2d Petitioners primary here any person may brought tention that Texas law and Colorado following to the case. cases: injury causing “1. the death When Appeals in an able of Civil any person is caused opinion sets forth the this state as unskilfulness, act, carelessness, neglect, heretofore declared *3 person, or default another association repeatedly the Texas This court has courts. persons, joint company, corpora- stock statute, wrongful held that our Article ** * his, agents their or tion its or 4671,1 not have extra-territorial force. does * * * servants, persons shall be such However, appellate calls lower damages injuries causing liable in for the relating attention developments to recent such death. significant to the rule” “most contacts which is described as one the newer -injury causing “2. the death When concepts of conflicts of law. It is stated any person wrongful by is caused that: act, carelessness, unskilfulness, neglect, owner, proprietor, or default of urged adopt the “We have been new any charterer hirer or or industrial significant doctrine of most contacts. railroad, public utility plant, any street or doctrine, and, We find much merit in the railway, steamboat, stage-coach, other or if impres- free to act a cause of first conveyance vehicle goods for the or sion, explore inclined to unfitness, passengers, by wrongful doctrine fully more with a view to act, neglect, carelessness, unskilfulness or adoption. sideration of But we are bound his, default or its servants or by Article the construction 4678 and owner, agents, proprietor, such charterer
placed
by
Supreme
on the statute
damages
or hirer shall
be liable
Court and
”
decisions of other courts
injuries
causing such death.
**
of Texas.
“Art.
4672. Character of
act
petitioner
ably
vigorously and
act,
“The wrongful
negligence, care-
argues
actually
that the State of Colorado
lessness,
default mention-
unskilfulness or
has little concern with this unfortunate
ed in the preceding article must be of
accident which took the lives
four Texans
would,
such character
and one
they
Illinois resident while
were
ensued,
party
in-
have entitled the
a,
jured
returning
trip
to maintain
Texas on
business
an action for such
injury.”
activity,
behalf of a Texas based commercial
points
out that the defendant
a Texas
foreign
“Art. 4678. Death in
State
corporation
negligent pilot
and that the
personal
“Whenever
the death or
also a Texas resident. Prom these circum
injury
a citizen
of this State or of
stances,
essentially
it is
contended
States,
country
any foreign
or of
controversy
is a Texas
which should be
having equal treaty rights with the United
controlled
Texas law.
citizens,
States on behalf of its
has been
act,
may
be caused
portions
death stat-
of our
neglect
any
or default of another in
ute which are
here are:
foreign
country
State or
for which
right to maintain an action and recover
“Article 4671. Cause of action
damages
thereof
given
statute or
“ * * *
damages
An
for actual
foreign
country,
action
law of such
State or
injuries causing
account of the
of action
be enforced in
1. All article references are to Vernon’s Ann.Tex.Stats.
Ry. Co.,
time
prescribed holding, or rationale for viz.: for the of such commencement actions this State. statutes of “But where the does law of the shall control forum statute, except by not exist reason prosecution and maintenance of such only in the can be enforced of this State all courts and where existence pertaining procedure.” matters occurred, say, is to have arisen and the cause of action must provisions of Article be state, remedy pursued must be the same part long came a of Texas after of the law and that must state where original wrongful death statute was has effect. was enacted and adopted. Leg. 33rd Acts ch. p. Leg. p. and Acts 35th ch. *4 principle upon “The which the doctrine purport give 365. This not enactment does power in a state to rests is want of wrong extraterritorial effect to give effect.” laws an extraterritorial purpose simply ful death statute. Its pointed It is v. provide out Richards arising that a action 1, 587, States, 585, United 82 under 369 U.S. S.Ct. foreign country the laws of a state or 492, 1962, 7 L.Ed.2d Supreme for the decided death of Texas citizen Court of the United said: could be States enforced in the Texas courts. words, “whenever the death' “Where than more one State has suf- ** * citizen of this State for which ficiently contact with substantial to maintain an action is activity State, by question, the forum given by the foreign statute or law of such analysis possessed by the interest ** such right may be involved, constitutionally States could enforced in the courts of this State apply of the decision case the * * * are abundantly clear as of one having or another state such an legislative intention.2 activity.” interest in the multistate pointed As out in the of the Court of Civil Appeals, the courts of this state argued that the rationale is
have repeatedly held that Article 4671 has
operative and
longer
stated in
is no
Willis
application.
extraterritorial
We need
Supreme
Court
view taken
not discuss the
holding
cases so
States,
of the
as well as other
United
except
necessary
to review one conten-
authorities,
legitimately
be
it
now
cannot
tion which is strongly urged by
peti-
adopt a
maintained that a
cannot
tioner. While
some of
cases heretofore
having
effect.
statute
an extraterritorial
simply
decided
declare
our
sound,
proposition
accepted
If
be
death statute
effect,3
it
necessarily
does not
follow
we should
early
case of
v.Willis Missouri Pacific
extra-
now hold that
4671 has an
Article
emergency
2. The
clause to the
defenses,
1917 Act
tion,
any,
and the
available.
recites that:
stand or
fall
The case asserted must
“The fact
there is now
pp. 452-454;
no law
12 C.J.
law.
permitting
State,
Ry.
citizens of this
McComus,
of a
El
Co.
Paso & N.W.
v.
foreign
country,
state or
who
170,
760,
be
Tex.Civ.App.
36
81 S.W.
761
injured
foreign
killed
state or
(writ
refused) ;
v.
Thomas
Western
country,
bringing
an action for
398,
Co.,
Tex.Civ.App.
Union Tel.
25
injury or death under
the laws of this
(writ
refused) ;
501,
61 S.W.
502
State,
State
the courts of this
Jackson,
Ry.
v.
[Mexican Nat.]
Co.
emergency,”
creates an
etc.
857,
107, 113,
31 L.R.A.
33 S.W.
Am.St.Rep. 28.” Jones v. Lou
“The
3.
law of the
where the cause of
Ry. Co.,
arose,
delictus,
isiana Western
the lex loci
S.W. 976
must
(Tex.Com.
1922).
determine the
Appeals
nature
the cause of ae
reaching,
intent
known. Admit-
territorial thrust.
It would
far
lative
thereto
not
involved,
say
least,
say
tedly,
enact-
questions
that an
there are two
for us to
power,
adopted
namely,
legislative
the extent of
Legislature
ment of the
over
authority.
legislative
and the
years ago
hundred
now has a different
intention of the
Filardo,
reaching
Foley
thrust This is made clear in
Bros. v.
meaning and a more far
construed. An extraterritorial effect is reject force. must We be given implication. statutes stat- argument. intention that the An * * *” (50 510, Statutes Am.Jur. effect ute should have extraterritorial 487). *6 § wording gathered cannot be from the of statute, the hence we not have and will do only Not does our un- not have a laws” situation “choice of death statute contain no wording indicat less extra- Legislature gives and until ing Legislature that the intended that the force to the statute. Act force, should have extraterritorial but, pointed out may The circumstance that we believe Appeals, of Civil it has been re that a such as this should be con- case peatedly held the Texas Legisla- courts that it trolled law that the does not. In ture, addition to development “signif- these considera after the of tions, provisions of Article rule,” which icant contacts should have amended give action, rise to the have been on our give it an extraterri- statute so as to statute books in one form or another since en- torial us to effect, does not authorize They have been yet carried forward legislative ter the have not field. We without substantial change wording in in theory adopted Legislature’s that the the Texas 1879, 1895, Revised Statutes of in judicial non-action authorizes 1911 and 1925. While the rule is legislative not matters.
invariable, settled, it is well general as a
proposition, judgments the District Court of that: Appeals are af-
and the Court of Civil Legislature regarded be must “[T]he firmed. intending statutes, repeatedly when STEAKLEY, J., re-enacted, Dissenting opinion here, as is the case to be GREENHILL,
given joined by interpretation that SMITH which has been JJ. of were residents Texas and OPINION deceased DISSENTING granted a operated under railroad charter The court Legislature Texas. STEAKLEY, Justice. said: problem respectfully dissent. I
judicial legislative origin right action does “But where the —and —not Con separation provision powers statute, except by reason it can exist mean not he stitution should held where only enforced state it. there can solve I only Legislature existence where fore conclusion of disagree with say, occurred. That Legis majority that until and unless must arisen and cause of action have in our lature inserts a sentence pursued in the remedy must be same they expressly reciting state, statutes and that must be state effect, shall have extraterritorial has effect. enacted the discredited reconsider and overrule principle upon the doctrine “The Pacific Ry. holding Willis v. Missouri state to power the want rests Co., with Tex. (1884), state give an extraterritorial her laws effect.” power give out laws force; judicial adopt the or consider and One later illustration of the influence doing “significant contacts rule” so Mexican Willis suffice. De will Ham public policy of our enforce declared Ry. Co., 68, 23 Nat. S.W. seeking for the benefit State its citizens upheld a demurrer to suit also redress death. for injuries to damages of mother Republic Mexico her son inflicted ma- there any Nor is assurance subsequent Texas. causing jority any later holding that this will said, citing Willis: accept accomplished should the the invitation add the extraterritorial “It that the statute of is settled law sentence. We have been under tort, which, gives state for a edict of this Court since 1884 law, derogation the common give lacks the extra- its laws law, or a action unknown to express legis- territorial effect either by and, force; can no extraterritorial have by judicial lative declaration decision. rule, it has been accordance surprising So is not legislature that the that for expressly decided in during attempted has not declare so *7 terri- injury inflicted in another state years these eighty-four since intervening the tory, in the of which results today Willis. And backs majority even the relatives party injured, surviving the away past. from overruling this relic of the in this state. recover have no * to Willis, This cases fol- * and * least, of torts, the laws at As to wake, thought in its the lowing gave to beyond its operation state have a implications extraterritorial of Articles 4671 own limits.” seq., quoted et majority opinion. in the wrongly de- were progeny This Willis and its to consideration not even could come Their un- overruled. the cided and surface of should because the view then held recog- in the modern derpinnings away fall no event could the statutes have a interest of the nition of constitutional upheld thrust. de- a Willis occurrence to an substantial ties the the state with against murrer to suit of wife applica- the outside its limits railway company damages to recover determining tion of own rules law negligent the of of brakeman hus- its killing her In consequences the conduct. band. of and occurred States, 1, 82 Richards v. Territory. plaintiff the Indian the
189
place
delictus,
Lex
the
loci
the law
(1962), the Court
of
L.Ed.2d 492
7
S.Ct.
past
wrong,
the
has also
of
dominated
said:
See also
ply
of
tivity
interest
an
cussion
ciently
Where
States
analysis
place has been indicated
in a situation
“Our view of a
one
appropriate conflict-of-laws doctrine
to the decision of the
[*]
involved,
or another
substantial contact
more
in Part
Pearson
question,
than one State
the multistate
interests
touching more
could
State’s
III
state
Northeast
constitutionally
of
forum
possessed
having
with
case the
by
has suffi-
State,
than one
our
Airlines,
to
activity.
such
opinion.
the
adopt
dis-
law
ap-
ac-
ute
Jones
ed) :
S.W. 976
decisions
thereof,
or default
cause of action
the courts
the death of a
which death
been
Statutes
“Our statute
recover
v. Louisiana Western
caused
treatment of the
of our
(Tex.Com.App.1922,
1920, art.
of
of
damages
Article
this state.
courts. This
right may
another in such
citizen in
given by
provides that
wrongful act, neglect,
7730½.
maintain an
given by
predecessor
another
Complete
be enforced
Illustrative
Ry.
jdgmt
law
seen
whenever
state,
state has
Co., 243
of
adopt-
stat-
law
Inc.,
(2d
state in
negligent
which
occurred
killing
A.L.R.2d 1162
F.2d
that our
enforce.
1962)
however, that
courts are authorized to
hold,
Cir.
: “We do
The law of the
the cause
to a transaction
with substantial ties
arose,
delictus,
the lex loci
must
dispute
legitimate
constitutional
the nature
own
determine
the cause of ac-
application
interest in
of its
rules
”*
tion,
defenses,
any,
available.
of law.
The case
stand
fall
asserted must
applied Texas
recently
We have
that law.”
consequences
a Texas
determine
This
El
again
seen in
Paso & Juarez
occurring
citizen
conduct
outside
Carruth,
Traction
(Tex.
Co. v.
S.W.
Employers’
State.
Insurance
Com.App.1923):
Dossey,
(Tex.Sup.
Ass’n v.
S.W.2d
Bruce,
1966).
In
King v.
merely
“This statute
declared what
A.L.R. 1328
201 S.W.2d
rule,
theretofore been the
universal
exception to
quoted
approval
the lex loci delictus
determine the
must
general
rule
control
law of
action,
nature
cause
the ex-
where contract
made:
recovery,
tent
while the forms of
pursuing
remedies
mode
same
has,
exceptions.
however,
“That rule
determined
forum.”
applied
It will not be
when
observed
The waning
contract, according
influence
loci
of lex
delictus
foreign
enforce a
acceptance
is seen in the
and wide
laws,
growing
will
provisions
foreign
holds that
public
contravene some established
the forum will
determine the
forum. Union
policy of
state of the
*8
parties in those
Grosman,
cases where the forum
Trust Co. v.
significant relationship
the
368;
most
S.Ct.
62 L.Ed.
1 Wharton
with
pro-
the
Ed.),
occurrence.1 The doctrine
(3d
Conflict of
275.”
Laws
(3rd
pies
Jackson,
of
of
Conflict
Laws 199-212
ed.
Babcock v.
Comments on
1963) ; Weintraub,
Solving
Development
A Method for
of
in Conflict
A Recent
Cheatham,
Torts,
Cavers,
Laws,
(by
48 Cornell L.
Conflict
Professors
Problems —
;
Reese),
(1963)
Leflar,
Currie, Ehrenzweig, Leflar,
Q.
Choice-Influenc
and
Currie,
ing
Law,
(1963) ;
Considerations
in Conflicts
63 Colum.L.Rev.
(1966).
Essays
of Laws
N.Y.U.L.Rev. 267
on the Conflict
Selected
(1963 ed.)
Stumberg,
;
Princi-
629-742
ap-
the
of
solving
gravity”
“grouping
of
contacts”
a flexible method of
vides
by proach
apply
in
that it
conflicting
holding
problem
domestic
would
of
recovery.
respective
the
statute as
bar to
public
the
Ontario
a
looking
of
The
the
York
basis for
that New
holding
in
its statutes.
states as reflected
-
had sufficient
the cause oí
contacts with
away from
doing,
trend
so
and
application
no action to
the
Nev
justify
of
having
struing statutes
the forum as
of
o;
law,
York
effect,
impressive. Re-
and that a
interest
substantial
the State New York
be forwárded
Laws
of
would
(Second)
statement
of
§
Conflict
so,
May
by doing
while
interest
Draft,
Ontario
II,
had
(Proposed
Part
Official
its
application
sufficient
justify
the
principle
1968) expresses the
as follows:
New York
On-
the
court. While
Principle.
“The General
its
tario
have an interest
applying
regulate
conduct,
law to
standards
the
“(1)
rights
liabilities of
and
highways,
as rules
the
Ontario
are
parties
respect to
issue
tort
with
an
and
interest
the
regulating
law the
by the
local
determined
liabilities
arising
Yorkers
from
New
issue,
sig-
which,
has the most
as to that
guest-host
origin
relationship which had
the
relationship
nificant
occurrence
in New York. The court stated:
parties
principles stated
the
6.§
“Comparison
‘contacts’
relative
ac-
taken into
“(2) Contacts to be
‘interests’ New York
Ontario
to6
applying
principles
count in
litigation,
the issue here
§
vis-a-vis
applicable to an issue
determine the law
presented,
it clear that the concern
makes
unquestionably
include:
of New
York is
greater and
in-
more direct and
oc-
“(a)
place
where
injury
terest of Ontario is at best minimal.
curred,
injuries
sustained
involves
by a
the result
guest
New York
caus-
“(b)
place
conduct
where
negligence
York host
of New
occurred,
ing
operation
automobile, garaged,
of an
residence, nationality,
domicil,
“(c) the
New
undoubtedly
licensed and
insured
place of
place
incorporation
York,
jour-
in the course
week-end
of a
parties, and
business of the
ney
began
end there.
was to
In sharp
relation-
contrast, Ontario’s sole
relationship,
“(d)
ship
purely
with
occurrence is
centered.
any,
parties
between
acci-
adventitious circumstance
dent
there.
occurred
evaluated
“These contacts
according to their relative
importance
[*]
[*]
[*]
[*]
issue.”
respect
particular
with
however,
here,
not wheth-
“The issue
against
er
defendant offended
the trend
Perhaps the landmark case
lei;
prescribed
Ontario
road
loci
away
rigid application of the
from
he vio-
whether
generally
motorists
473, 240
Jackson, 12 N.Y.2d
is Babcock v.
imposed
of conduct
some standard
lated
279, A.L.R.2d
N.Y.S.2d
191 N.E.2d
rather whether
jurisdiction,
but
(1963).
York resident
There
New
guest
because she was
plaintiff,
accident
injured in
automobile
automobile, is barred
the defendant’s
Yorkers
traveling
other New
while
wrong
damages for
recovering
from
Ontario,
plaintiff
sued
Canada.
issue, it
to that
concededly committed. As
host-driver,
pleaded
Ontario
Guest
who
*9
parties
(cid:127)
place
York, the
where
is New
recovery. New
complete
as a
bar to
Statute
relation-
resided,
guest-host
York
The New
York has
statute.
guest
began
trip
and where
ship arose
“center
termed the
adopted
it
court
what
IQI
Ontario,
speak-
and
end,
parties,
rather than
liabilities of
and
and
towas
ing
lex
loci delictus rule said:
place
occurrence
fortuitous
accident,
has the dominant
“That
com-
today
old
almost
applica-
superior claim for
tacts
pletely
unvarying guide
discredited as
* * *
tion
law.
of its
tort
choice
law decision
all
cases
part
due in no
Supreme
Pennsylvania, in
trenchant
small
Court of
Currie,
Cheatham, Cook,
620, A.2d
criticism of
McCrory,
v.
422 Pa.
222
Kuchinic
No
Pennsylvania,
Georgia,
Lorenzen, Stumberg
Yntema.
(1966),
897
held
authority
conflict
laws
in America to-
airplane
case of an
re-
day agrees
rule should be
Georgia in route from Florida
the old
crash
* * *
Pennsyl-
court
Pennsylvania
tained.
No American
involving only
felt
re-examine
passengers.
vania
reasoned:
which has
free to
thoroughly
matter
last
decade
agree
appellants
with
“We
chosen
retain the
rule.
old
analysis spelled
and interest
out
interests
“Vermont’s
under its statute
[Inc.],
Griffith v. United Airlines
416
are
1,
courts
requires
brought
Pa.
suits
in its own
203
796
(1964)
A.2d
'
Pennsylvania
hosts,
affecting
and insurance
applied
guests
law be
these
companies subject
jurisdiction.
to its
facts.
Our primary interest
our
arising out of
analyzed
“Indeed when
properly
ordinary
correspondingly
negligence law
present
prime example
cases are a
applies
affecting
to suits in our courts
what has been characterized
aas
‘false
people
relationships
with which
conflict’, for
stretch of
legitimate
have a
That interest
concern.
imagination
Georgia
can
as
viewed
in this
is a real
case
one.”
**
jurisdiction.
concerned
Geor-
gia’s
case,
only contact
jurisdictions
Cases
in other
accord
as
accident, wholly
situs of
cited in the footnote.2
fortuitous,
Pennsylvania,
whereas
in agreement
I am
with these decisions
host-guest relationship
where the
hold
was established,
where was
intended
constitutionally
statutes of our
State
terminate, and
domicile of all four
applied
beyond
to occurrences
occupants,
aircraft’s
the state
limits and that the rule of lex loci delictus
with the
significant
most
interest in de-
longer
application
nowill
bar
fining
legal consequences
attached
the forum.
accord Restatement
relationship
here involved.”
(Second)
(Pro-
of Conflict of Laws
175
§
Clark v. Clark,
351,
107 N.H.
222 A.2d posed
Draft,
II,
1968),
Official
Part May
206
the circum-
considered
which reads as follows:
stances of an automobile accident in Ver-
“Right of Action for Death.
mont involving
Hampshire
New
citizens.
Supreme
Hampshire
Court of New
“In
death,
an action for wrongful
held
its law would determine
local
law of the state where the
Horgen,
Fabricius
1967) ;
v.
257 Iowa
132
Empresa
Tramontana
v. S. A.
(1965) ;
Wilcox,
N.W.2d 410
Wilcox v.
Grandense,
De Viacao Aerea Rio
121 U.S.
26
(1965) ;
Wis.2d
App.D.C.
133
N.W.2d
(1965) ;
408
occurred determines limitation and must be respect implication sup- parties unless, logic bilities the there in of and is no issue, position particular some that legislature other the would want significant relationship preclude the re- more intend its to to citizens from parties, covering wrongful occurrence which full damages and the death happened the injuries event the local the other state will because causative law of applied.” be outside our territorial it to limits. Nor is expected be the Texas hand, Turning at be to the case would years, the of during on the occasions and pose arguing circumstances difficult to the re-enactments of Article sig- “most forcefully more the rule of provide for expressly have undertaken to against adherence nificant contacts” and extraterritorial reach when this Court the of to the view that the law of repeatedly past not that it did said consequences the is determinative of the do. have constitutional to so only Here the matter of tortious conduct. not Nonaction under such circumstances is the of concern the State of Colorado legislative bearing acquiescence has no and portion during the pilot conduct of the deciding the responsibility of the aircraft journey of interstate when statutes, thrust of the matter to using flying was Colorado air it- not addressed this Court has heretofore airport negligence The Colorado facilities. self, and, view, today. in my does not do so pilot crash causing of the fortuitous Finally, require not our Article does of accountability in Colorado, and hence right foreign courts to enforce the of action for his those in Texas must answer who lan- the extraterritorial situation. The acts, this, stipulated. Beyond Colorado permissive not guage the statute is of legitimate interest. can have no further mandatory. no more than It authorize does pilot The not cause act of the did right enforcement action foreign of of a nor Colorado constituent death the courts of this State if survivors will citizens of be answerable Colorado statutory elect to seek such relief. damages. justification logic There is no right action forum of under the law of the or reason for law to nevertheless Colorado Article otherwise available under parties. govern substantive of precluded subsequent not enactment by state, It is matter of indifference not of Article latter statute does public policy, in way contrary to its prescribe purport to the conditions under determine should Texas applicable. which Article 4671 is It consequences pilot. the conduct of of mandate our courts enforce significant Texas only is the state of birthplace substantive law of nection with the citizens who were by of action when not cause invoked killed there- with those who are liable parties compensatory damages. seeking for; interest that of while is maximal purpose underlying Article is minimal. There is no conflict. Colorado a statutory the establishment of difficulty so, This being there should It does action for death. the Texas citizens concluding that speak purport assertion terms of public entitled the benefits statutory' right under local law or reflected in statutes of alone, not, foreign standing law and does the forum state. authorize enforcement our courts foreign right Article 4678 action. does furthermore, clear, cause abe There must so with two conditions. is not Article 4671 authorized stat- given its terms to a limited jurisdiction, foreign utes limits of the territorial occurring within governed such action is trial speaks only State. The statute inter- procedural law of our State. A wrongful act. injury causing
19 n relationship is locking exists, two statutes Under it now there is plausible. no obvious and choice of laws. Article 4671 does not apply wrongful resulting to acts in death judgments I would reverse the below and Texas, which are committed outside con statutory- give the their Texas survivors sequently only purely basis for Texas, the forum statutory action is the Colorado statute state. by enforceable in is virtue of Article 4678.2 GREENHILL, join SMITH and JJ., this dissent. thing is one for branch quite to amend a statute and another
ON MOTION FOR REHEARING thing modify a rule of common law. NORVELL, And, to overrule a court’s uniform inter Justice. pretation of a persisted statute which has dissenting opinion filed here long period years over a as evidenced recognizes at the outset that Willis v. decisions, very amending numerous is like Missouri Ry., Pacific 432, 61 Tex. and the why a statute. That rule of stare line of following cases that decision have highly decisis binding field. A construed the Texas wrongful death statute holdings by series of a court of last resort as having no effect, extraterritorial operate starting should an axiom or new this line of authorities must be over point, speak, so to and if a reexamination ruled before adopt a choice of law rule of all made decisions to be all occa under which apply we could the Texas law sions, purpose the rule would than serve no rather the Colorado measuring law in the damages to be certainty awarded in there would be no law.3 this case.1 Ry. 1. Cox, person, person In Texas & Pacific v. death of another and no personal right S.Ct. 36 L.Ed. inherit of an- could Supreme injuries Court of the other to recover for tortious United States * * * holding important body. stated that rea- v. his One Willis Mis- Ry. why recovery souri Pacific was that son “suit could brought inju- (Texas) everywhere in that state had await de- resulting person inflicted, ries in death is that the interest one lineation inherently creating where no law existed the life of another is such a clearly recog- of action.” This intractable. Rather than hear offers proof nition that under the of love affection economic court’s hold- ing, every person dependence the Texas who from had statute might the bell effect. think or claim This him, stayed apparently struction of the the courts was tolled for unchallenged pending legislative until action. suit hands Harlan, dissenting Levy filed. v. Loui- J. bindingness holdings siana, L. a series of 88 S.Ct. U.S. (1968). of a court of last resort Ed.2d 436 under the rule stare decisis is determined the “de- former overrules one of its 3.When cision” rather than the or ration- necessarily decisions, makes a ale advanced for the decision. 21 C.J.S. of the eumbersomeness decision. Because 181, 186, pp. 289, Courts §§ 297. The amending process, some- the rule controlling principle general- of a case is in constitu- have the force times does not ly judgment determined rendered leg- possesses in the that it tional matters light therein in the of the facts which of a a construction field where islative deciding authority important. deems Congress unpalatable statute, Goodhart, “Determining the Ratio De- changed Legislature, or a State Case,” Jurisprudence cidendi of a in Ac- comparative Am.Jur. ease. 20 with tion, p. similarity 191. The of the facts Courts, 197, 198. §§ in this ease to those of Willis v. Missouri ap- decisis in which stare fields Other Ry. readily apparent. Pacific particular plies decisions force are Wilkinson, law, person (Cross involving “At common titles had a le- land gally cognizable involv- interest 234 S.W. place, gave to and controlled sub- order rise make above observations
We
action,
of this
clearly point
basis
stantive law
out
recovery
abide
limitation
that could be al-
decision to
holding is its
court’s
procedural
therein was
in nature and
and refuse
over-
lowed
the rule of stare decisis
Ry.
hence
the law
New York.
Pacific
controlled
v. Missouri
rule Willis
*12
comparison, Hopkins
also for
v. Lock-
following that decision.
line of cases
Corporation,
heed Aircraft
dents. The doctrine of Air Hopkins v. Lockheed rule.
court-made Corporation, (Fla.1967),
craft
and the abandonment of one, “signifi different such as a
of some rule, involve contacts” while
cant precedents
overruling common necessarily policy grounds, does not involve parte Ex Billie Thomas ADAMS. meaning fifty saying that a statute one No. 41468. today. In years ago and a different one situation, than latter rather restraint Appeals Court of of Texas. Criminal becoming temerity may the more July 10, 1968. virtue. by petition Many authorities cited apposite are either not
ers approach entirely adopt different
case problem. the cases cited over If statutes, they prior constructions least, say At seems to
do so. cases, g., the better considered e.
true of Lines, Air 416 Pa.
Griffith v. United A.2d v. and Babcock Jack son, N.Y.2d 240 N.Y.S.2d (1963).4 A.L.R.2d
N.E.2d perhaps say we cannot
We should
accept Kilberg the thesis set forth in Airlines, 34, 211 N.Y.S. 9 N.Y.2d
Northeast e. (1961), i.
2d
while act which resulted took
the death a New York resident dissenting his ing contained issues of both construction Lines, gen- Air Pa. titles), Griffith v. land forms of contracts (1964). use, policies, A.2d 1. c. 810 insurance common eral parties long standing, rules of ease, see, probably conducting In connection with the Babcock have relied by Cavers, Cheatham, personal, family, Currie. Comments and business affairs. See Ehrenzweig, Reese, also, Leflar 63 Colum. Bell’s discussion of Justice Chief (1963). Whither?”, Why, What, L.Rev. 1212 “Stare Decisis —