Mexican Nat. R. v. Slater

115 F. 593 | 5th Cir. | 1902

McCORMICK, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The grounds of the defendant’s demurrers and of its special plea are these: (i) That the death occurred in the republic of Mexico, and not within the jurisdiction of the circuit court. (2) That under the Mexican laws the parties who may prosecute the suit are different from the parties who- may prosecute a like suit in the state of Texas, and that the laws of Mexico pleaded and relied upon by the plaintiffs are so far different in other particulars from the laws of Texas as to put the case outside of the jurisdiction of the circuit court. (3) That the right of the plaintiffs to recover depends solely upon the construction of a penal statute of Mexico, which has no extraterritorial effect. (4) That under the laws of Mexico the right of survivors to recover damages for personal injuries resulting in death is alimony or pension, payable in installments, and is therefore so dissimilar from the laws of Texas or the common law that this court cannot administer or enforce those laws and the plaintiffs’ rights thereunder. The parties to this suit are citizens of the United States, and all of the plaintiffs are citizens of Texas, and inhabitants of the district in which the suit was brought, while the sole defendant is a corporation organized under the laws of the state of Colorado, and has constructed and operates a line of railroad to the city of Laredo, in the district and at a point where the circuit court is held, and where also the defendant has a duly authorized and recognized agent upon whom process may be served; and the defendant, being thus an inhabitant of the district, has duly appeared.

The statutes of Mexico creating the plaintiffs’ right place the acts and omissions charged against the defendant to support their claim of right in the class of negligent crimes; but it cannot be contended that the act belongs to that class of criminal laws which can only be enforced by the courts of the country where the offense was committed, for it gives a civil action to recover damages for a civil injury. It is such an injury as would not have supported an action at common law, for it was early held, and has become settled law, that at common law the death of a human being could not be complained of as an injury in a civil court. As the right to compensation in such cases is one of recent creation, it is dependent solely upon the statute of the country where the injury is inflicted from which the death results. But when an act is done for which the law says the person shall be liable, and the action by which the remedy is to be enforced is a personal, and not a real, action, and is of that character which the law recognizes as transitory, and not local, the wrongdoer may be held liable in any court to whose jurisdiction he can be subjected by personal process or by voluntary appearance. Wherever, by either common law or the statute law of the country, a right of action has become fixed, and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties. Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439. We have seen that the foreign law here involved does not belong to the class of criminal laws which can only be enforced by the courts of the foreign country. The right created by those laws is not contrary to the public policy in the state of Texas, in which state the circuit court to which this writ of error issued is held. Rev. St. Tex. 1895, arts. 3017, 3027. It is not contrary to abstract justice, or to pure morals, nor calculated to injure the state of Texas or the United States or their citizens. We have already shown that the circuit court has jurisdiction of all of the parties to this action.

What we have said sufficiently disposes of the first and third of the grounds of error as stated in the opening of this opinion. The first clause of the second ground becomes immaterial in view of our conclusion as to the fourth ground, which substantially includes the last clause of the second, and hence there remains for discussion only the fourth ground of error, assigned as numbered in our opening statement. On the subject of jurisdiction, therefore, it remains to inquire only whether, consistently with our own forms of procedure and law of trials, we can do substantial justice between the parties. From the nature of our system of national judicature, and from the nature of the case, there is no general law or statute of the United States prescribing the forms of procedure and the law of the trial in such cases in the circuit court other than the statute which requires that the forms and modes of procedure in civil causes in the circuit court shall conform as nearly as may be to the forms and modes of procedure existing at the time in like cases in the courts of record of the state within which the circuit court is held. Rev. St. § 914. As we have seen, “in cases of other than penal actions, the foreign law, if not contrary to our public policy, or to abstract justice, or pure morals, or calculated to injure the state or its citizens, • shall be recognized and enforced here, if we have jurisdiction of all necessary parties, and if we can see that, consistently with our own forms of procedure and law of trials, we can do substantial justice between the parties. -If the foreign law is a penal statute, or if it offends our own policy, or is repugnant to justice or to good morals, or is calculated to injure the state or its citizens, or if we have not jurisdiction of the parties who must be brought in to enable us to give a statutory- remedy, or if, under our forms of procedure, an action here cannot give a substantial remedy, we are at liberty to decline jurisdiction.” Higgins v. Railroad Co., 155 Mass. 176, 180, 29 N. E. 534, 535, 31 Am. St. Rep. 544, quoted with approval in Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123. We must, therefore, look somewhat closely to the Texas law and practice thereunder preparatory to a comparison of that law with the laws of Mexico, to determine whether the circuit court, in an action at law, can give a substantial remedy and do substantial justice between the parties in this cause.

Article 3027 of the Revised Statutes of Texas of 1895 provides:

“The jury may give such damages as they may think proportioned to the Injury resulting from such death, and the amount so recovered shall be divided among the persons entitled to the benefit of the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict”

The learned judge of the circuit court who presided on the trial of this case sat in the case of Hall v. Railroad Co., 39 Fed. 21, and in his instruction to the jury in that case stated the Texas law thus:

“It is necessary for the plaintiff, in cases of this kind, to show a damage of a pecuniary nature. Yet such damages are not to be given merely in reference to the loss of a legal right, but may be calculated with reference to the reasonble expectation which the plaintiff had, resulting from his condition, and the disposition and ability of his son, during his life, to bestow upon him pecuniary benefit as of right, or in obedience to the dictates of filial duty without legal claim.”

In Railway Co. v. Lehmberg, 75 Tex. 67, 68, 12 S. W. 838, 840, which the trial judge cites in his charge in the instant case, we find the Texas law announced thus:

“While the law does not, in this character of action, intend to give compensation for anything but pecuniary loss by estimating the money value of the life of the relative; and while it necessarily results that regard must in each instance be paid to such facts and conditions as cast light upon the subject, it yet must be admitted that the inquiry is not intended to be narrowed down by the law to a result that can be exactly accounted for by the facts in evidence. Every parent and husband has for his wife and children a pecuniary value beyond the amount of his earnings by his labor or vocation. That value may to some, but not to every, extent be susceptible of allegation and proof, and to the extent that it can be alleged and proved it ought to be done. The difficulties of proof are known to the lawmaker. In some states an attempt has been made to remove them to some extent by placing limits to the amount that may be recovered. In establishing such rules the idea of making compensation In each instance for the pecuniary value of the lost life is necessarily abandoned. When no amount is fixed by law, and no rule is prescribed for making the calculation upon facts capable of exaet ascertainment, it necessarily follows, we think, that the lawmaker intended that, having reference as far as practicable to conditions existing at the time of the death, juries from their own knowledge, experience, and sense of justice should fix and assess the proper sum.”

In an earlier case (Railroad Co. v. Kuehn, 70 Tex. 582, 8 S. W. 484), it is said at page 587, 70 Tex., page 485, 8 S. W.: “That pending the suit the widow married again does not preclude her right of action.” And in Railway Co. v. Younger, 90 Tex. 387, 38 S. W. 1121, on certified questions duly propounded to the supreme court to obtain its rulings on the points stated, that court answered: “To the first question we answer that evidence of the marriage of plaintiff, Younger, after the death of his wife, on account of which he sought to recover damages, was properly rejected by the court.” And in the argument in the opinion it is stated: “If the plaintiff’s wife was killed through the negligence of the defendant, he then lost the value of her life as a wife; and the fact that her place has been supplied by a subsequent marriage does not in any manner operate to mitigate the damages for which the wrongdoer was responsible.”

Rooking only to the sections of the statutes put in evidence, we see that the civil liability imposed by the Mexican law obliges the wrongdoer to indemnify the injured party “for the violation of a right which is ‘formal, existing, and not simply possible/ and this imports the payment of damages; that is, of that which the injured party fails to enjoy as a direct and immediate consequence of an act or omission by which a formal, existing, and not merely possible right is attacked.” Arts. 301, 304, 305, Pen. Code, bk. 2, “Civil Liability in Criminal Matters.” “The civil responsibility that grows out of a homicide done without right (or justification) comprehends * * * the support not only of the widow, descendants and ascendants of the deceased, who were being supported by him, he being under legal obligations to do so, but also the posthumous descendants that he may leave. The obligation to furnish support shall last during all the time that the deceased might have lived if the homicide had not killed him, and that time shall be calculated by the judges according to the table at the end of this chapter, but taking into consideration the state of the health of the deceased before the homicide was committed. As limitation of this rule, the obligation shall cease, (1) at whatever time it shall not be absolutely necessary for the subsistence of those entitled to receive it; (2) when those beneficiaries get married; (3) when the minor children become of age; (4) in any other case in which, according to law, the deceased, if alive, would not be required to continue the support.” Articles 318, 319, Id. The articles of the statute law of Mexico put in evidence in this case appear to stand together, and, though taken from different books and different chapters of the laws as passed and published, to have a direct relation to the same general subject, and to define and limit the rights which they create. Counsel for the plaintiff m error contend that the general and special demurrers and exceptions to the respective pleadings of the parties necessarily involve and require: (1) The proper construction of the laws of Mexico touching the nature of the right and damages secured to surviving widows and children; (2) the power and authority of the circuit courts of the United States to administer these laws and enforce the right secured by them to the plaintiffs; and. (3), as practically preliminary to the other two, the manner of proving and construing the laws of a foreign country. The law of Mexico being that of a foreign country, of which our courts do not take judicial notice, could only be proved as a fact, and, if not proved in the trial court, cannot be taken judicial notice of by this court on this writ of error. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123. The plaintiff in error contends that under the agreement of counsel the translations of the statutes as set out in the plaintiffs’ petition and in Exhibits A and B, constituting, as it does, all of the testimony in relation to the laws of Mexico which was admitted by the trial judge, in no manner negatives or tends to negative the existence of other written or unwritten laws of Mexico having application to the issues in this case, and that, in further proof of the laws of Mexico as practically construed and enforced in that republic, it tendered the testimony of Emilio Velasco, a man learned in the laws of Mexico, taken by deposition, duly verified and authenticated and returned into court, which testimony was as follows:

“(1) That the said Emilio Velasco was a native citizen of Mexico. (2) That he was a lawyer in Mexico by profession, and had been since January, 1800. (8) That he was a graduate of the Law School of the Oity of Mexico, graduating in January, 1860. (4) That he was familiar with the laws of Mexico and the states of Nueva Leon and Tamaulipas in force now and that were in force for two years past, touching the right of the surviving wife and children to recover damages for personal injuries resulting in the death of the husband and father. (6) That the rjght in a surviving wife and children in a civil suit for damages, where no criminal proceedings had been had, and defendant had been absolved, it was necessary, as a precedent to a recovery, that the court trying the civil cause find that the killing or injury was a crime as defined by the Penal Code. (7) That the right was in the nature of alimony or pension to be paid in installments monthly for periods of time fixed by the court. That obligation to pay alimony to the wife and children does not imply that of giving a sum larger or smaller at once, but of giving a pension. Alimony comprises meals, dress, habitation, and assistance in case of sickness; and, as regards minors, besides the necessary expenses for the education of the party supported, and for furnishing him a trade, art, or profession, honest and suitable to sex and personal circumstances. (8) That the party obliged to give alimony complies with this obligation by assigning a competent pension, or by incorporating him into his family. (9) That the obligation to furnish alimony or support as a consequence of civil responsibility lasts all the time that the deceased ought to have lived, calculating the time according to the table of probabilities, which is a continuance of article 825 of the Penal Code, bearing in mind, however, the condition of the health of the deceased; but that this obligation would cease at any time when it is not absolutely necessary to the subsistence of the parties who receive it. Therefore the obligation ceases from the moment in which the condition of fortune of the parties who receive alimony vary allowing them to subsist without the necessity of the alimony. It ceases with the wife and. daughter when they marry, and with sons when they become twenty-one years of age; and it ceases when circumstances are produced that, according to law, the obligation of giving would have ceased on part of deceased if he had lived. (10) That civil responsibility is based upon infraction of the Penal Code. It is the infraction of the Penal Code that gives or engenders civil responsibility. (11) In ease the injured party has contributed to the deed, or fault, or negligence, or to the omissions which caused the injury, he is co-author of the offense or fault, and his representatives cannot recover. (12) That the wife and children have no right to any indemnification against a railway company on account of injuries from which resulted the death of the husband or father when the accident in which the said injury occurred was caused by the fault or negligence or omission of the one who suffered the injury, or if he contributed in any way with his fault, negligence, or omission to the accident.”

To the reading of this deposition counsel for the plaintiffs (the defendants in error) objected on the ground that the statutory law of Mexico as pleaded is best proved by the statutes themselves, and that, the statutes having been offered in evidence, the deposition of witnesses as to what is the law is inadmissible, which objection the court sustained, and the defendant duly excepted. Counsel for the plaintiff in error contend that this ruling assumes that the statutory law of Mexico is all of the law in cases of the character of the action at bar affecting the right of recovery, in that it assumes that it is incompetent to offer testimony of one learned in the laws of a foreign country as to what the law is, whether written or unwritten; and that it assumes that it is incompetent to offer testimony in the nature of expert evidence as to the proper construction of a statute of a foreign country and written in a foreign tongue. Undoubtedly, the usual and better mode of authenticating foreign written laws is by a copy proved' to1 be a true copy. But unwritten laws must ordinarily be proved by parol evidence. Greenl. Ev. § 488. Counsel further insist that the trial court, in admitting only the copies of the certain statutes offered, and refusing the aid of parol evidence, fell into a mistake as to the laws of Mexico which determined the rights of the plaintiffs and the defendants in this case. In support of this contention they refer to the instruction of the trial judge to the jury, in which he uses this language:

“In cases of this kind tbe damages are measured solely by tbe pecuniary injury to which the respective parties are entitled, including the loss of prospective damages.”

And this language he reiterated as follows:

“In cases of this kind the damages, as before stated, must be measured by the pecuniary standard, — that is, the money value of the life of the deceased to the surviving wife and children; and the jury, acting upon their sound and deliberate judgment, based upon facts and circumstances in evidence and their knowledge, experience, and sense of justice, may give such damages to the plaintiffs as they may think proportionate to the injury resulting to them from the death of the deceased.”

A most eminent text writer, in a work of standard autnority, has said:

“No tribunal on earth, however learned, could hope by any degree of diligence to master the laws and processes and remedies of all other nations, and the qualifications and limitations properly belonging thereto.”

The same writer has said:

“In regard to the merits and rights involved in actions, the law of the place where they originated is to govern. But the forms of remedies and the order of judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicile of the parties, the origin of the right, or the country of the act.” And, again: “There are many questions, however, which may arise as to what are and what are not matters properly belonging to the remedy, and what are and what are not matters properly belonging to the merits. Many cases of this sort may be found collected and discussed by foreign jurists upon the peculiarities of their own jurisprudence. But they could not be made intelligible to a lawyer under the common law without occupying a space in. explanations 'wholly disproportionate to their importance in a treatise like the present.” Story, Confl. Laws, §"§ 557, 558, 563.

The statutes of Mexico were conceived and are expressed in the Spanish language, which is the vernacular tongue in Mexico. They are addressed to those having full knowledge of the Spanish idiom. They are addressed also to persons instructed in or charged with a knowledge of the unwritten laws, customs, and usages of that people; and, like the cases referred to by Mr. Story which could not be made intelligible to a lawyer under the common law, without laborious explanations, these statutes, thus conceived and addressed, while they must be construed by whatever court is charged with'the duty of executing them, may be more rightly and safely construed with the aid of the testimony of competent witnesses instructed in these laws, customs, and usages, the idiom of the language, and the unreported decisions of their enlightened domestic courts, which, we are informed, do not accompany their decisions by the announcement of judicial opinions, if they are not, as is probably the case, forbidden by law to do so. The deposition of the witness having been offered to prove as a fact the law of the foreign country, was addressed to the judge to aid him in his rulings during the progress of the trial, and in giving his instruction to the jury; and, if he erroneously refused to receive and consider it, it is still such proof of the foreign law offered in the trial court that it can be taken judicial notice of by this court on writ of error. Without the aid of this testimony, we would find it difficult to construe the limitations expressed in the latter part of article 319, above quoted, and especially the second one of those limitations; and while we probably would, from the nature of the case, and from a careful consideration of the statutes pleaded and proved, have reached the conclusion that limitation 2 must relate to female beneficiaries, whether minors or not, and that limitation 3 relates to minor children of the male sex, we should have felt the need of the further proof which is offered to be supplied by the deposition of the learned Mexican lawyer. We conclude that the learned trial judge erred in sustaining the objection to the introduction of this proof, and, for the reason already given, we will take-judicial notice of it on this writ of error. Without requotirig here or attempting further to analyze the provisions of the statute law of Mexico set out in the statement of the case and to some extent considered in the foregoing part of this opinion, it appears clear to us from a careful comparison of the different sections of the statute and a careful consideration of the deposition of the Mexican lawyer that the right created by the Mexican laws is the right to a continuing support during the periods of time that support would have been due from the deceased, and in the amount that it would have been due, proportioned to his ability to give it and the necessities of those who had the right to receive it. Any judgment that may be rendered against the defendant must as studiously respect and enforce its right as it does the rights of the plaintiffs. limitations placed on the right of the plaintiff are for the protection and just treatment of the party bound. The provisions of the Mexican law which we are considering seem to regard and relate to not only the paramount interest of the individual parties to the transactions, liabilities, and reparations, but also to the interest of the public in having the support due to the beneficiaries so extended that it will continue through the period for which it is provided. The provisions of the Mexican statute on this subject have in view the declaring and conserving the interest of Mexican citizens; and where, as in this particular case, the beneficiaries are citizens of the United States, our laws, state and national, as administered in our courts, may be deemed adequate to. authorize and secure the preservation of the rights of the beneficiaries and the protection of the interest of the public, and may yet be not adequate to the due enforcement of the limitations put upon the plaintiff’s right for the just protection of the party charged. Possibly in the Texas state courts, where the distinction between law and equity does not exist, or at equity in the courts of the United States, a decree might be passed fixing the liability of the defendant, and retaining control of the parties to the suit and of the subject-matter so as to enforce that liability, with the limitations provided in the interest of the defendant. It is difficult to conceive what judgment at law the circuit court could render that would protect that interest of the defendant in the limitations put by the Mexican law on the plaintiff’s right. It may be that, under our system of judicature, the jury, taking the place of the judges in the Mexican system, might, under proper instructions, on full proof, and aided, as Mexican trial judges are aided, by their own experience and knowledge of affairs, be able fairly and justly to assess in a lump sum the value of the right secured to. the male beneficiaries (the case before us does not require that question to be decided now, and on it we express no opinion); but if in a case where only male beneficiaries are parties there may be no insuperable difficulty in the way of our enforcement of the right secured by the Mexican law, it is difficult to conceive how the most learned trial judge could instruct a jury so as to enable them, on any possible condition of proof, to fix a present sum which would give female beneficiaries their due, and give them only their due. Before the fact of their marriage shall have occurred, on what basis established by law or by human experience can the proximate date when those beneficiaries will get married be fixed by the jury, or by any other human intelligence? The Texas law provides that “an action for actual damages on account of injuries causing the death of any person may be brought by all of the parties entitled thereto, or by any one or more of them for the benefit of all.” Rev. St. 1895, arts. 3017, 3022. It is clear, therefore, that the rights of all entitled to damages on account of injuries causing the death of any person must be considered and settled in one action against the wrongdoer, and that in the case where some of the beneficiaries are males and some of them females the same difficulty is presented as occurs in a case where female beneficiaries alone are interested and are parties plaintiff. The learned and distinguished counsel who appeared in this court for the defendants in error, and who submitted an oral argument and a printed brief, presents in his second proposition in his printed brief “that conditions which may arise, and under which, according to the law of Mexico, civil liabilities for damages for injuries resulting in death will cease, may constitute defensive matter, the effect of which is to bar the remedy rather than to extinguish the right of action. But no such contingencies have been pleaded. The court is not called upon to construe the law relating thereto.” This proposition, in our opinion, is not sound. The limitations we have been considering relating to the female beneficiaries directly affect the plaintiffs’ right, and are not merely defensive matter to be availed of by the one bound after the marriage of the female beneficiaries shall have occurred.

We therefore conclude that the right of the survivors (the plaintiffs) to recover damages for personal injuries resulting in the death of William H. Slater is alimony, or pension, payable in installments for uncertain and indeterminate periods, dependent upon conduct of beneficiaries and conditions impossible to forecast, and is therefore so dissimilar from the laws of Texas and the common law that the circuit court in an action at law cannot administer the same and enforce the rights of the plaintiffs so as to do substantial justice between the parties.

It is unnecessary to notice any of the other questions presented by the assignment of errors. The view we have taken of the case requires that the judgment of the circuit court shall be reversed, and the cause remanded, with direction to that court to sustain special exception No. 2, filed by the defendant on March 18, 1901, and to dismiss the plaintiffs’ action.