This suit wаs instituted by Samuel Goodman to recover damages inflicted upon himself and wife through being ejected from a train belonging to appellant in the Bepublic of Mexico. The cause was tried upon the original petition and resulted in a verdict for Goodman. The cause was then appeаled to this court, and was reversed and remanded. Railway v. Goodman,
The damages claimed arose out of the refusal to honor certаin tickets held by appellee and her husband, and their ejectment from a train of appellant. The facts necessary to an understanding of the opinion are fully stated in our former opinion, аnd need not be restated.
This is an action for damages arising from a tort. Kelley v. Tel. Co., 17 Texas Civ. Apр., 344.
. The first assignment presents as error the action of the court in overruling its special exceрtions to the petition, the grounds of exception being that the petition showed that the injury was inflictеd in the Bepublic of Mexico, and fails to allege that the cause of action of appellee’s husband would'survive to her under the laws of that country.
*110 The damages sued for were for injury to the person of Samuel Goodman and his wife, the appellee in this case, and the action was mаintainable in Texas without any allegation that such suit was authorized by the laws of Mexico, because such actions are sanctioned by the universal law, but the further and more difficult question arises, Rid the action of Goodman survive to his wife under the law of the forum, there being no allegation or proof as to the laws of Mexico on the subject? r
Under the common law, as well as the civil law, the cause of action brought by Samuel Goodman for damages for his personal injuries would not survive Ms death. Watsоn v. Loop,
It follows, therefore, that the action as to the personal injuries sustained by Samuel Goodman did not survive to his wife, unless the presumption will obtain, in the absence of proof, that the forеign law is the same as that of the lex fori. The matter must be viewed as though Mrs. Goodman had originally instituted the suit, no strength being added to the action by the fact that it was instituted by the husband during Ms lifetime. Did she have such cause of action after the death of her husband? We think not. Had the action been one that she could have brought at common law, it would be transitory and could be instituted anywhere that the offender might be found, but adhering to our opinion in Railway v. Mitten, 13 Texas Civil Appeals, 653, we hold that, “where the action is given by statutе, and is not one that arose at common law, it becomes necessary for the plaintiff to establish the existence of a. law in the foreign State that gives the right of action as well as in the Statе where the case is tried.”
In the case of De Harn v. Railway,
In the case of Tempel v. Dodge,
The opinion in the De Harn Case is supportеd by numerous authorities. McDonald v. Mallory,
We are of the opinion that the cause of actiоn so far as it is based upon the inj uries inflicted upon the mind and body of Samuel Goodman died *111 with him, unless it could be shown that there is in Mexico a similar statute to that of this State which causes such actions to survive. Wе do not think that the right of appellee to recover for the injuries she sustained was affected by the death of her husband. If he had died at the time the injuries were inflicted there can be no doubt that аppellee could have maintained a suit for damages to her person, and there cаn be no reason why she should not be authorized to continue a suit after his death brought by him for personal injuries to her.
It follows that if the cause of action did not survive as to the injuries inflicted upon Samuel Goodman, testimony on that subject should not have been admitted in evidence.
The other assignments of error need not be considered.
For the reasons given the judgment will be reversed and the cause remanded.
Reversed and remanded.
Application for writ of error dismissed by the Supreme Court.