Mexican Cent. Ry. Co. v. Chantry

136 F. 316 | 5th Cir. | 1905

Lead Opinion

After stating the case as above, the opinion of the court was delivered by PARDEE, Circuit Judge.

To recover in this transitory action for the alleged personal injuries, it must be shown that the laws of Mexico give a right of action. Foreign laws are matters of fact, and, like other facts, must be pleaded and proved. Liverpool & G. W. S. Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788. Assuming that in this case it has been sufficiently pleaded and proved that under the laws of Mexico the plaintiff is given a civil right of action to recover from the defendant company for the injuries in question, we still meet the proposition that, prior to the suit brought, and the trial of the same, said right of action had been lost or extinguished by legal proceedings in the courts of Mexico; and the question arises whether such proceedings, sufficiently pleaded and proved, will defeat the cause of action sued on. After much consideration, we conclude, on principle and authority, that the rule declared in McLeod v. Connecticut & P. R. Co. (Vt.) 6 Atl. 648, as follows: “Although a civil right of action acquired or a liability incurred in one state or country for a personal injury may be enforced in another to which the party in fault may have removed or where he may be found, yet the right of action must exist under the laws of the place where the act was done or neglect accrued. If no-cause or right of action for which redress may be had exists in the country where the personal injury was received, then there is no cause of action to travel with the person claimed to be in fault, which may be enforced in the state where he may be found” — is a correct statement of the law of the case.

The record shows that the plaintiff in error duly pleaded proceedings in Mexico under the laws of Mexico had prior to the institution; of the present suit, by and through which whatever right the defendant in error may have had to prosecute his suit in any jurisdiction was extinguished. The plea seems to be good, and, so far as the record-shows, was so treated by the trial court. On the trial of the case the evidence of Amador, Mexican lawyer, made a prima facie case to the-effect that, under the laws of Mexico, by proceedings of the kind and' nature described in the certified transcript attached to the plea, the defendant in error’s right of action was extinguished. In connection with this evidence, the certified transcript of the proceedings in the courts of Mexico in relation to the railroad wreck in which the defendant in error was injured, and the finding by said courts that in such wreck no culpability was attached to any one, was offered in evidence» ■ but was rejected by the court for the purpose for which it was offered, and admitted only for the limited purpose of contradicting the oral evidence of the defendant in error. This transcript, in connection with the other evidence, would have shown, prima facie at least, that, at the time the present suit was instituted, proceedings in Mexico had been had in the nature of, and having the force of, res judicata, settling the defendant in error’s right to recover adversely to him. Certainly, if no cause of action existed in Mexico at the time this suit was brought, the same ought not to be maintained. Holding this view, we are of opinion that the trial judge erred in rejecting the evidence offered, and-that for this reason the judgment of the court below should be reversed.

We do not think it necessary to pass on other points raised on this wrif of. error, further than to say that whether or not the common-law . doctrine as to the nonliability of employers to one servant for injuries resulting from the negligence of a fellow servant prevails in Mexico is a matter of fact, to be proved like other facts. See, in this connection, Mexican Central Ry. Co. v. Sprague, 114 Fed. 544, 52 C. C. A. 318.

The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to grant a new trial.

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Concurrence Opinion

SHEEBY, Circuit Judge.

I concur in the judgment of reversal, but, as I place it on grounds fatal to the plaintiff’s cause of action, it seems proper to briefly state them:

This is a common-law action for damages for personal injuries received by the defendant in error (the plaintiff below) while in the service of the plaintiff in error (the defendant below). It is alleged in the declaration that, while engaged in the service of the defendant as conductor, the plaintiff was injured by the defendant’s servants, whose negligence caused him to be knocked down between the cars, and that his right foot was caught under the wheels of the cars and mangled to such an extent as to render him a cripple for life. The accident occurred in Mexico, and the plaintiff, in his pleadings, sets out the laws of Mexico upon which he bases his right of recovery. For convenience of reference, these statutes, so far as is necessary, are printed in the margin.¹' They make railway companies civilly liable for the negligence, imprudence, arid want of capacity of their servants. Negligence is made a crime, and civil liability is fixed, which requires the payment of all the damages caused to the injured party. The judges who take cognizance of the suit for damages are required to endeavor to have the parties agree ori the amount of damages and “terms of payment.” The measure of damages is fixed by the statute. The guilty defendant must pay all the expenses of cure, the damages the plaintiff may have suffered, and that which he may fail to gain during the time which he may not be able to do the work by which he subsisted. If the plaintiff recovers so that he can do other work (different from his accustomed work), “the civil responsibility shall be reduced to paying him the sum which his ability to earn in his new employment falls short of his daily earnings in his former occupation.” It is clear that, if the plaintiff had sued in Mexico, a judgment for the plaintiff would have required the defendant to pay him at stated times such sums as he had been earning before the injury, and that if the plaintiff recovered so that he could do other work appropriate to his education, etc., the payments required of the defendant would be reduced by the amount the plaintiff earned in his new vocation. Article 322, note. It seems, also, that by proceedings .subsequent to the judgment the defendant may be relieved of the liability fixed by the judgment, and that such liability may “be expressly left to the charge of the public treasury.” Articles 331, 334, note. There are other differences between the lex loci delicti and the lex fori, not necessary to be mentioned here, which are elaborately stated by the Supreme Court of Texas in refusing to administer and enforce the Mexican statutes. Mexican National Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28. This is an action at law for damages for a statutory tort. No room is left for presumption as to what laws prevailed in Mexico, for the plaintiff presents the statutes making the alleged negligence a tort, and prescribing the penalty, and limiting in certain points the defendant’s liability by providing the terms and character of the judgment. It is not a judgment for a lump sum, but for periodical payments. These payments may be reduced by a change in 'the physical condition and occupation of the plaintiff, and by procedure after judgment the defendant may be re-, lieved of the liability; it being made a charge on the public treasury. It is .clear that in this suit no such judgment can be rendered by the Circuit Court sitting in Texas. It is a general rule that a civil right of action or liability incurred in one country for a personal injury may be enforced in another country to which the party in fault may have moved, or where he may be found, if the right of action exists under the laws of the place where the act was done or the neglect occurred. But the rule does not apply to 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. Minor on Conflict of Taws, § 194. I think the principles announced by the Supreme Court in Slater v. Mexican National R. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900, are conclusive of this case. That was a suit brought in the Circuit Court in Texas for damages for the negligence of the railroad company in causing the death of William H. Slater. The statutes of Mexico and those of Texas both give an action for wrongfully causing death, and the court said:

“Of course, there is no general objection of policy to enforcing such a liability, although it arose in another jurisdiction.”

In affirming the judgment of the Circuit Court of Appeals, which directed the dismissal of the action (115 Fed. 593, 53 C. C. A. 239) the Supreme Court said:

“As Texas has statutes which give an action for wrongfully causing death, of course there is no general objection of policy to enforcing such a liability there, although it arose in another jurisdiction. But when such a liability is enforced in a jurisdiction foreign to the place of the wrongful act, obviously that does not mean that the act, in any degree, is subject to the lex fori, with regard to either its quality or its consequences. On the other hand, it equally little means that the law of the place of the act is operative outside its own territory. The theory of the foreign suit is that, although the act complained of was subject to no law having force in the forum, it gave rise to an obligation — an obligatio — which, like other obligations, follows the person, and may be enforced wherever the person may be found. But as the only source of this obligation is the law of the place of the act, it follows that that law determines not merely the existence of the obligation, but equally determines its extent. It seems to us unjust to allow a plaintiff! to come here, absolutely depending on the foreign law for the foundation of his case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose. * * * We may lay on one side, as quite inadmissible, the notion that the law of the place of the act may be resorted to so far as to show that the act was a tort, and then may be abandoned, leaving the consequences to be. determined according to the accident of the place where the defendant may happen to be caught. * * * It is sufficiently obvious from what has been quoted that the decree contemplated by the Mexican law is a decree analogous to a decree for alimony in divorce proceedings — a decree which contemplates periodical payments, and which-is subject to modification from time to time as the circumstances change. The present action is a suit at common law, and the court has no power to make a decree of this kind contemplated by the Mexican statutes. * * * But we are of opinion, further, that- justice to the defendant would not permit the substitution of a lump sum, however estimated, for the periodical payments which the Mexican statute required. * * * Evidently the Texas courts would deem the dissimilarities between the local law and that of Mexico too great to permit an action in the Texas state courts. Mexican National Ry. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St. Rep. 28; St. Louis, Iron Mountain & Southern Ry. v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804. The case is not one demanding extreme measures, like those where a tort is committed in an uncivilized country. The defendant always can be found in Mexico, on the other side of the river; and it is to be presumed that the courts there are open to the plaintiff, if the statute conferred a right upon them, notwithstanding their absence from the jurisdiction, as we assume that it' did, for the purposes of this part of the case.”

While the facts of the two cases are different — one being for damages for wrongfully causing death, and the other for wrongfully inflicting personal injuries — as both causes of action depend absolutely on foreign statutes, I cannot avoid the conclusion that the principles announced in the former case are equally controlling in the latter. In each case the judgment or decree provided for by the statute prescribes periodical payments that may be reduced by subsequent events. The statutory judgment in each case is such that “in an action at common law the court here has no power to make.” The procedure here is such that the defendant in this case, as in the Slater Case, would be deprived of substantial rights secured to it by the foreign statutes on which the suit is based. The opinion and judgment of the Supreme Court'is, of course, controlling on this court; and it seems to me that, if we permit this case to proceed to judgment for the plaintiff in the court below,, we ignore the principle announced — that it is “unjust to allow a plaintiff to come here, absolutely depending on the foreign law for the foundation of his case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose.” Neither can I reconcile the direction to proceed to try this case again under the Texas law, allowing a verdict and judgment for a lump sum only, with the opinion quoted — that “justice to the defendant would not permit the substitution of a lump sum, however estimated, for the periodical payments which the Mexican statute required.” I am forced. therefore, to the conclusion that the opinion of the Supreme Court, which requires the plaintiff to seek his remedy “on the other side of the river,” is just as applicable to this case as to the Slater Case.

The Circuit Court, I think, should be directed to dismiss the case. I dissent, therefore, from that part of the judgment which directs a new trial.

NOTE.

The following are the pertinent Mexican statutes set out in his pleadings by the plaintiff:

“Art. 184. Companies [railway] are liable for all faults or accidents which occur through tardiness, negligence, imprudence, or want of capacity of their employés.”

“Art. 304. The civil liabilities arising from an act or omission contrary to a penal law consists on the obligation imposed on the party liable, to make <1) restitution, (2) reparation, (3) indemnization, and (4) payment of judicial expenses.

“Art. 305. Reparation comprehends: The payment of all the damages caused to the injured party, to his family or to a third person, for the. violation of a right which is formal, existing and not simply possible, if such damages are actual, and arise directly and immediately from the act or omission complained of or there bé a certainty that such act or omission must necessarily cause, as a proximate and inevitable consequence.”

“Art. 305. Indemnization imports: The payment of damages, that is, of that which the party fails to enjoy as a direct and immediate consequence of an act of omission by which a formal, existing and not merely possible right is attacked, and of the value of the fruits of the thing usurped and already consumed, in the cases in which the same should be done comfortably with civil right.

“Art. 306. The condition required by the two preceding articles, that the damages and injuries should be actual, shall not prevent that the indemnization of subsequent damages and injuries be exacted by a new suit, when they shall be accrued; if they proceed directly from, and as a necessary consequence of the same act or omission from which resulted the previous damages or injuries.

“Art. 307. The payment of judicial expenses embraces those absolutely necessary, which the injured person incurs for the purpose of investigating the act or omission which causes the criminal proceeding and to avail himself of his rights in such proceeding or in civil suit.”

“Art. 313. The judges who take cognizance of suits based upon civil responsibility shall endeavor that the amount and terms of payment be fixed by agreement of the parties. Failing in this, the provisions of the following article shall be observed.”

“Ai't. 321. In case of blows or wounds, from which the injured party does not remain a cripple, lamed or deformed, he shall have the right that the responsible party pay all his expenses of cure, the damages he may have suffered, and that which he may fail to gain during the time which, in the opinion of competent persons, he may not be able to do work by which he subsisted. But it is essential that the inability to work should be the direct result of the wounds or blows, or be a cause which is [the] immediate effect of such blows or wounds.

“Art. 322. If the inability of the injured person to devote himself to his accustomed work be permanent, from the moment in which he shall recover and can properly devote himself to other and different work, which may be lucrative and appropriate to his education, habits, social position and physical constitution, the civil responsibility shall be reduced to paying him the sum which his ability to earn in his new employment falls short of his daily earnings in his former occupation.

“Art. 323. If the blows or wounds cause the loss of any member not indispensable for work, or the person wounded or struck remain otherwise crippled, lamed or deformed, by that circumstance, he shall have the right not only to the damages and injuries, but also the sum which the judge may determine as extraordinary indemnity, considering the social position and sex of the person and the part of the body remaining crippled, lame or deformed.

“Art. 324. The gain which the injured party fails to earn during his inability to work, shall be computed by multiplying the sum which he formerly earned per day by the number of days of his inability.

“Art. 325. The provisions of the foregoing articles for computing the civil responsibility for wounds or blows shall be applied to all other cases where, in the violation of the penal law, a person may cause the illness of another, or may have placed him under disability to work.

“Art. 326. No person can be charged with civil liability upon an act or omission contrary to the penal law, unless it be proven: That the party sought to be charged usurped the property of another; that without right he caused, by himself or by means of another, damages or injuries to the plaintiff, or that the party sought to be charged being able to avoid the damages, they were caused by a person under his authority.

“Art. 327. Whenever any of the conditions of the preceding articles are established, the defendant shall be civilly liable, without regard to whether he be absolved or condemned to criminal liability.”

“Art. 330. In order that masters may be held civilly liable through their clerks and servants, according to the provisions of articles 326 and 327, it is an indispensable condition that the act or omission of the clerks or servants causing the liability shall occur in the service for which they are employed.

“Art. 331. Under the condition of the preceding article, those liable are: Railroad companies.”

“Art. 331. — -Limitation. The various actions by which the civil responsibility may be demanded, or the execution of the final judgment declaring that such responsibility has been incurred by the accused may be asked, shall be extinguished according to the terms and in the manner provided by the Civil Code, according to the nature of the demand and the subject matter treated of.”

“Art 364. Amnesty shall not extinguish the civil responsibility, nor the action to exact it, nor the legal rights which third persons may have acquired. Nevertheless, when the responsibility may not yet have been made effective, and the demand is not for restitution, but for the reparation of damages, of indemnity for injuries, or for payment of judicial expenses, the guilty person shall remain free from such obligations only when it is declared in the amnesty and they are expressly left to the charge of the public treasury.”

1 See note at end of ease.