Evey v. Mexican Cent. Ry. Co.

81 F. 294, 38 L.R.A. 387, 1897 U.S. App. LEXIS 1861

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 1897
• Docket: No. 544
• Status: Published

Opinion

PARDEE, Circuit Judge

(after stating the facts as above), delivered the opinion of the court.

As the plaintiff is a citizen of the state of Texas, residing in the Western district of said state, and the defendant a citizen of the state of Massachusetts, the circuit court has jurisdiction ratione personae. As the cause of action shown by the petition is one for a personal tort (i. e. for injury to the person through negligence), it is transitory, and the circuit coui’t has jurisdiction ratione materia?.

While the negligence complained of was committed in the republic of Mexico, neither of the parties is a citizen of Mexico, but both are citizens of the United States; and therefore there ought be no question of international comity in the case, further than to inquire whether the laws of Mexico give a right to the plaintiff to recover damages for such negligence, and the extent of such right. The laws of the republic of Mexico create a civil- liability in favor of a person injured by negligence, and give a distinct civil remedy therefor, in the nature of pecuniary damages. To the same effect is the law of the state of Texas. Tliis action is not barred by any statute of the United States, of the state of Texas, or of the republic of Mexico. “A right arising under, or a liability imposed by, either the common law or the statute of- a state may, where the action is transitory, be asserted and enforced in any circuit court of the United States having jurisdiction of the subject-matter and the parties.” Dennick v. Railroad Co., 103 U. S. 11. Whether a law is a penal law, in the international sense, so that it cannot be enforced in the courts of another state, depends upon whether its purpose is to punish offenses against the public justice of the state, or to affoi'd a private remedy to a person injured by the wrongful act. Huntington v. Attrill, 146 U. S. 657, 673. 13 Sup. Ct. 224. “The test is not. by what name tbe statute is called by the legislature or the courts of tke state in which it was passed, hut whether it appears to the tribunal which is called upon to enforce if to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person. • In this country the question of international law must be determined in the first instance by the court, state or national, in which the suit is brought. If the suit is brought in a circuit court of the United States, it is one of those questions of genei’al jurisprudence which that court must decide for itself, uncontrolled by local decisions. Burgess v. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. 10; Railway Co. v. Cox, 145 U. S. 593, 605, 12 Sup. Ct. 905.” Huntington v. Attrill, 146 U. S. 683, 13 Sup. Ct. 233. “The statute of another state has, of course, no extraterritorial force; but rights acquired under it will always, in comity, be enforced, if not against the public policy of the laws of the former. In such cases the law of the place where the right was acquired or the liability was incurred will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought; and we think the principle is the sa3ne whether the right of action be ex contractu or ex delicto.” Herrick v. Railway Co., 31 Minn. 11, 16 , approved by the supreme court of the United States in Railroad Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978. Tlic foregoing propositions are not exactly disputed by the learned counsel for the defendant in error, hut we have thought best to stain them, in order to relieve this ease of some of the judicial fog which has sell led on it.

The first special exception to the plaintiff's right of action is, in substance, that the laws of the republic of Mexico, as pleaded by the plaintiff, are so vague, uncertain, and dissimilar to the laws of this country, that this court should not entertain jurisdiction thereon and attempt to enforce! said laws. To pass upon this exception, it is pertinent to inquire to what extent the proper understanding and construction of Hie laws of the republic of Mexico are material to Hie case made in the petition. According to the rut - declared in Herrick v. Railway Co., supra, which rule, as we have seen, was approved by the supreme court of the United States in Railroad Co. v. Babcock, supra, the law of Mexico is to be looked to, to determine whether thereunder an employé of a railroad company, injured by and through the negligence of the company, has a right to recover in a civil action damages for such injury, and, if lie ha.s, what is the extent of such right. On this inquiry, we are of opinion that the law of Mexico, instead of being vague and uncertain, is clear and specific. Article 11 of the Mexican Federal Penal Code, and articles 301, 301-, 805, 300, 307, 308, and 320 of book 2 of the same Code, as pleaded, confer on any person injured by and through the negligence of another a right to recover in a civil proceeding all the actual damages sustained. Article 380 of the same Code provides that masters may be held civilly liable, through their clerks and servants, according to the provisions of articles 326 and 327, for the negligence of said clerks and servants within the scope of their employment. Article 194 of the act of congress of December 15, 1881, declares that railway companies are liable for all faults or accidents which occur through tardiness, negligence, imprudence, or want of capacity of their employes. Certainly these laws, so clearly defining negligence and Hie civil rights resulting therefrom, ought not to be rejected as too vague and indefinite to be administered by intelligent courts and judges.

lint it is excepted that these laws are dissimilar to the laws of this country (i. e. Texas), and too dissimilar to be administered by the court. The alleged dissimilarity having such grave results is not pointed out in the exception. The brief of the learned counsel for Hie defendant in error is but little more specific, and that Little by way of argument that the law of Mexico, as pleaded, requires a judicial determination of the infraction of the penal law of Mexico as a condition precedent to a suit for civil damages, and that such criminal proceedings have not been commenced, whereby all pending civil proceeding's would be stayed, under article -26 of the transitory law of the Penal Code of Mexico; and, further, that the petition should show, hut does not, that the judge who took cognizance of this suit endeavored to procure an agreement of the parties to a compromise of the controversy as required by article 313 of the Mexican Code before proceeding to adjudication hereof. Article 26 of the transitory law (Penal Code) and article 313 of the Penal Code, as pleaded, relate wholly to matters of procedure, and do not affect the right, nor even the remedy. Article 327 of the Penal Code provides that the civil liability shall exist without regard to whether the defendant be absolved or condemned to criminal liability; and article 298 of tbe act of congress of December 15, 1881, expressly reserves the right of individuals through indemnity and the liability which the companies may have incurred through criminal acts or omissions committed by them. If; however, it should be conceded that there is dissimilarity between tbe law of Mexico giving the right of action and the law of Texas, in which state it is sought to enforce the right, it does not appear that such dissimilarity extends so far as to conflict with the settled public policy of tbe state of Texas.

“But it by no means follows that, because the statute of one state differs from the law of another state, therefore it Would be held contrary to the policy of the laws of the latter state. Every day our courts are enforcing rights under foreign contracts where the lex loci contractus and the lex fori are altogether different, and yet we construe these contracts and .enforce rights under them according to their force and effect under the laws of the state where made. To justify a court in refusing to enforce a right of action which ' accrued under the law of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens. If the state of Iowa sees fit to impose this obligation upon those operating railroads within her bounds, and to make it a condition of tbe employment of those who enter their service, we see nothing in such a- law repugnant either to good morals or natural justice, or prejudicial to the interests of our own citizens.” Herrick v. Railway Co., 31 Minn. 11, 16 N. W. 413.

See, also, Higgins v. Railway Co., 155 Mass. 176, 29 N. E. 534.

In Huntington v. Attrill, supra, tbe supreme court says:

“In order to maintain an action for an injury to the person or to movable property, some courts bave held that the wrong must be one which would be actionable by the law of the place where the redress is sought, as well as by the law of the place where the wrong was done. See, for example, The Halley, L. R. 2 P. C. 193, 204; Phillips v. Eyre, L. R. 6 Q. B. 28, 29; The M. Moxham, 1 Prob. Div. 107, 111; Wooden v. Railroad Co., 126 N. Y. 10, 26 N. E. 1050; Ash v. Railroad Co., 72 Md. 144, 19 Atl. 643. But such is not the law of this court. By our law a private action may be maintained in one state, if not contrary to its own policy, for such a wrong done in another and actionable there, although a like wrong would not be actionable in tbe state where the suit is brought. Smith v. Condry, 1 How. 28; The China, 7 Wall. 53, 64; The Scotland, 105 U. S. 24, 29; Dennick v. Railroad Co., 103 U. S. 11; Railway Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905.”

Tbe second special exception is that the petition does not show any reason why plaintiff did not sue for damages for said injuries in the republic of Mexico, and this on tbe ground that the injury sustained by tbe plaintiff occurred in the republic of Mexico, and any right of action which he may have is controlled by tbe laws of said republic; and it appears that the defendant has, ever since the injury, maintained its line of railroad in said republic, and continued to possess its property in said republic. We are familiar with the exception of the pendency of another suit between tbe same parties on the same cause of action in another court of the same jurisdiction, but this is our first introduction to an exception that the plaintiff cannot maintain a cause of action in a court having jurisdiction ration'; [HTSJMa! and ratione materias, because the plaintiff could have instituted his action in some other court that would have had like jurisdiction. It has been conclusively shown that although the injury for which plaintiff sues occurred in the republic of Mexico, and that his right to recover damages is controlled by the laws of said republic, yet the plaintiff has a right to sue in the circuit court. That the petition shows that the defendant owns and operates a railroad in the republic of Mexico does not appear to be a very good reason for the courts of Texas to decline jurisdiction, particularly where the same petition shows that the defendant owns and operates part of the same line of railroad in the state of Texas.

The third special exception is, in substance and effect, that a judgment in favor of plaintiff, awarding him damages for the injury sustained, would not be a final determination of the rights between the parties, but that thereafter the plaintiff, under the law of Mexico, would have the right to bring suits from time to time, and recover in said suits, if his said injury is continuing or permanent. This exception appears to be based upon article 306 of the Penal Code of Mexico, as follows:

“The condition required by the two preceding articles, that the damages and injuries should be actual, shall not prevent that the inflemnizatlon of subsequent damages and injuries be exacted by a new suit, when they shall have 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.”

The purport of this article is that if damages accrue after the first suit, winch damages proceed directly from, and as a necessary consequence of, the same negligence, such damages may be made the subject of a second suit; and the article clearly hag reference only to damages which accrue after the first suit, and which were not known to exist at the time such suit was brought and determined. It was evidently intended to give a party injured through negligence full actual damages, although not known or contemplated at the time of the first suit. The adjudication under the Mexican law in the first suit: is as final as to all injuries known to exist or existing at the time of the suit as is an adjudication in our courts. In this connection the following from the opinion of Chief Justice James in Railway Co. v. Jackson (Tex. Civ. App.) 32 S. W. 234, 235:

“The well-established rule of law is that we are to look to the laws of Mexico for what pertains to the rights of the parties, and to our laws and practice for what applies to the remedy. Railroad Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978; Herrick v. Railway Co., 31 Minn. 11, 16 N. W. 413; Knight v. Railroad Co., 108 Pa. St. 250. There is no fundamental difference as to the measure of damages. The actual damage the injured party has sustained and will afterwards sustain is sought to be arrived at and redressed iu both jurisdictions. The end sought iu both countries is compensation. The allowance of a new suit Cor injuries that develop later demonstrates the purpose of the Mexicali law to secura to the injured party his right to complore actual damages. The case is not like those in which it appears that the foreign law limits the amount of damages recoverable to a certain sum, whore it is held that ilio domestic court will not rentier judgment in excess of such sum. The limit and standard in both countries is compensation, and the power to reduce the allowance in favor of the defendant, and the right to a new suit in favor of plaintiff, for unconsidered damages, are all merely the means of attaining and enforcing actual damages. It is observed that exemplary damages were not asked or allowed iii this case. Our opinion on this branch of the case is that the difference in the mode of arriving at and administering the. damages is a matter that affects the remedy only, and therefore offers no obstacle to the exercise of jurisdiction by our courts. Story, Confl. Laws, § 307d. It was proper to proceed according to our law and practice, as the court did in this instance, in ascertaining the entire damages and awarding execution,”

—Is directly in point, and we agree with, the reasoning and conclusion.

The fourth special exception sustained by the court below is that the petition fails to show that the judge of the circuit court, or any judge having cognizance of the matter, had endeavored to have the amount and terms of the payments for plaintiff’s injuries agreed upon between the parties as required of the judges in Mexico under article 313 of the laws of said republic. We have already held that this article relates merely to procedure, and does not affect the right, nor even the remedy. The procedure provided for in said article 313 is, as we-are informed, a practice enjoined in suits on contracts as well as torts, and is derived from the civil law.

The fifth special exception is that according to the laws of Mexico, as pleaded, the plaintiff has no right to recover damages in a civil suit unless he shows that the acts of the defendant which caused the injury constituted a crime under said laws of Mexico; that the recovery in said civil suit is penal in its nature; that the circuit court .cannot enforce the penal laws of the republic of Mexico, and that the laws of said republic do not sufficiently define what acts are made penal under said laws to enable the court to judge whether or not said acts by which said injury was caused are penal, within the meaning of the law, to entitle the plaintiff to any recovery in a civil action therefor. It appears from the laws pleaded that a civil action lies in the courts of Mexico for the negligent wrongs complained of, and although by the laws of Mexico the wrongful acts of the defendant, as alleged in the petition, may constitute a negligent crime, it does not appear that the liability of defendant to the plaintiff for the injuries complained of depends in any way upon the criminal prosecution or conviction of the defendant. Article 327, Mexican Code; articles 194, 298, Act. Cong. Dec. 15, 1881. And see Huntington v. Attrill, supra. The recovery sought in this case is not penal, but is for the individual benefit of the plaintiff, and inures in no way to the benefit of the public. The court is not asked in this action to enforce any penal law of the republic of Mexico, but merely to enforce the civil right of the defendant granted by the laws of, Mexico, occasioned by an act of negligence such as gives a right of action under the law in any civilized country.

The sixth special exception is that, according to article 323 of the laws of the republic of Mexico, a recovery may be had not only for the damages sustained by the- injuries complained of, but the judge trying the case may award as extraordinary indemnity any sum that he may determine, considering the social position, etc., of the party injured; and the argument is that the said law is against natural justice, and that to discriminate in favor of or against a litigant according to his social position is against the policy of our law. Counsel for the plaintiff answers this exception as follows:

“There is no law requiring us to sue for extraordinary indemnity, and we have not done so; and the fact that we might have done so in tlie republic of Mexico is no reason why we should not sue for, in this country, such damages as are otherwise permissible. The fact that the defendant is sued in a forum where extraordinary damages cannot be recovered is a matter for which he ought to thank heaven, take courage, and say no more about it. lie certainly cannot complain. Suppose the law of one country should give exemplary damages under circumstances such as that the laws of our country would not give? Gould it be supposed that that was a reason for this court refusing to give such damages as are permissible under our laws? If the law of Mexico giving extraordinary indemnity considering the social position is against natural justice and tlie policy of our laws, that would be a good reason why the courts of this country should not give extraordinary indemnity. But certainly it is no reason why they should not give ordinary indemnity such as is consistent with natural justice and our policy.”

This answer seems to dispose of the sixth exception conclusively.

Tlie seventh special exception reiterates the charge of vagueness and indefiniteness of the Mexican law involved, and is disposed of by what has been said with regard to the first special exception.

To support the ruling of the circuit court sustaining the foregoing special exceptions, the learned connsel for the defendant in error relies solely upon a decision of the supreme court of the state of Texas in Railroad Co. v. Jackson (Tex. Sup.) 33 S. W. 857. That was a case in most respects similar to the one under present consideration; differing, however, in one or two important points, which will be hereafter noticed. The first propositions in Railroad Go. v. Jackson, supra, affecting the ruling here, are as follows:

“This is a transitory action, and may be maintained in any place where ihe defendant is found, if there be no reason why tlie court whose jurisdiction is invoked should not entertain the action. The plaintiff, however, has no legal right to have his redress in our courts; nor is it specially a question of comity between this state and the government of Mexico, hut one for the courts of this state to decide, as to whether or not the law by which tlie right claimed must be determined is such that we can properly and intelligently administer it with due regard to the rights of the parties. Gardner v. Thomas, 14 Johns. 134; Johnson v. Dalton, 1 Cow. 543. The decisions of this court (well sustained by high authority) establish the doctrine that the courts of this stale will not undertake to adjudicate rights which originated in another state or country, under statutes materially different from the law of this state, in relation to the same subject. Railway Co. v. McCormick, 71 Tex. 660, 9 S. W. 540; Railway Co. v. Richards, 68 Tex. 375, 4 S. W. 627. Many difficulties would present themselves, in an attempt to determine the meaning of the Mexican law, and to apply it in giving redress to the parties claiming rights under it. AA'e understand the Mexican courts are not governed by precehcnt, and we have no access to reports of adjudicated cases of those courts, from which we could ascertain their interpretation of these laws.”

It is to be noticed that the action was one in a court of the state of Texas brought by a citizen of that state against a foreign corporation, and that the suit before us is one brought in a court of the Unified States hv a citizen of the United States against another citizen of the United States. In the Texas case the right to sue may be affected by comity. In our case the right to sue is specifically granted by the statute, and appears to be absolute. Gardner v. Thomas and Johnson v. Dalton, cited above, were cases in which one British subject sued another British subject (both sailors) in the state of New York to recover damages for assault and battery committed on board á British ship on the high seas. In Gardner v. Thomas the court admitted jurisdiction, but refused to hear the case on motives of policy. In Johnson v. Dalton the court approved Gardner v. Thomas, but concluded that, as the plaintiff left or abandoned the vessel in the port of New York, the court ought to entertain jurisdiction. These two cases are not very persuasive in determining as to the right of a citizen of Texas to sue in his own court and before his own judge. The Texas cases cited were actions for damages caused by the death of the injured party, where it was held that the courts of Texas will not entertain such actions if founded upon a law which is materially different from the law of that state. The rule declared may be correct and binding on the courts of the state of Texas, but the rule in this regard binding on the courts of the United States is to the contrary, and is found peremptorily declared in Dennick v. Railroad Co., supra. The difficulties which present themselves in determining the meaning of the Mexican law, and in applying it to give redress to the parties claiming rights under it, we have already sufficiently considered. As to the Mexican courts not being governed by precedent, and having no reports of adjudicated cases, we concur with what Chief Justice My so well says in Railway Co. v. Mitten (Tex. Civ. App.) 36 S. W. 282:

“Dissimilarity of the laws, however, was not the sole ground upon which the aid of our courts was denied to Jackson, hut other aDd (to usj novel reasons were given why the right should he denied; among the number being the difficulties that would beset Texas courts in determining the meaning of Mexican laws. On this point it is said, ‘We understand the Mexican courts are not governed by precedent, and we have no access to reports of adjudicated cases of those courts, from which we could ascertain their interpretation of these laws.’ If it be true that the Mexicans have no precedents, and keep no record of adjudicated cases, it would seem that a Mexican court would be in no better position to follow in the track of the decisions than, would an American; and while ‘it is well settled that’ if one state undertakes to enforce a jaw of another state, the interpretation of that law as fixed by the courts of the other state is to be followed,’ still it does not follow that where the other state has not interpreted its laws, or has failed to record its interpretations, this state should therefore refuse to extend a remedy for a wrong inflicted on a citizen within the borders of such foreign state. In many of the ease's in which jurisdiction has been assumed or held to attach in the courts of one state when the wrong was perpetrated in another, the offending party had removed from the latter state, but we have found no case where the fact of removal was made the ground for assuming jurisdiction. Our courts either have jurisdiction of the class of eases we are discussing, or they have not; and the question of whether a man has voluntarily resorted to our courts, or been forced into them, or whether commerce between Mexico and Texas will be injured or protected by compelling the payment by a corporation of damages for the wrongs it has inflicted, or the condition of our dockets, can have no weight or force in determining jurisdiction. These are considerations that might possibly address themselves to the notice of legislatures, but not to the determinations of courts. Courts are not at liberty to assume or decline jurisdiction upon speculative grounds, or for reasons of public policy. Percival v. Hickey, 18 Johns. 257. We are not willing to subscribe to the doctrine that a citizen of Texas who has suffered wrongs, transitory in their nature, in a foreign country, at the hands of one who has his legal domicile in this state, before he can obtain roflmss at the hands of onr courts must show that he has been refused aid in ihe foreign courts, and make it. appear that he comes to the courts of his own country unwillingly, and as a last resort. Jurisdiction of a cause should nm, la: made to depend upon any such state of circumstances. If the construction placed upon the decision in the Jackson Case be Ihe true one, — and some of its expressions would seem to justify the construction, — it is a practical denial ot remedios for wrongs that may be inflicted by one of our citizens upon another in .Mexico by relegating him to a trial in the courts of a country where'the laws are said to be enforced without precedent or authority, and which laws are claimed to bo so uncertain and obscure that our courts cannot undertake to construe them. We are not, willing to subscribe to such doctrine, and will not, ex lend the scope of the decision referred to beyond the purview of the facts of that case. We hold that the petition showed a cause of action, and that the district court of El Paso county had jurisdiction of the case.”

Following the above-quoted propositions, the supreme court in the cane cited elaborates in regard to the dissimilarity between Mexican law and the law of‘Texas, and holds that this dissimilarity is sufficient to warrant the courts of Texas in refusiug to entertain jurisdiction. The court next iinds that another reason for refusing to entertain jurisdiction exists in the fact that the Mexican National Railroad, owns and operates a railroad in Mexico; and as a matter of comity to the people of Mexico, and as a matter of policy towards the growing commerce between Texas'and Mexico, and out of consideration for the overburdened condition of the dockets of the Texas courts, the court holds the Texas courts ought not to entertain suits lor negligence brought against railroad companies operating lines in Mexico, where the plaintiff chooses the Texas jurisdiction from convenience, and not from necessity. The petition in the case at bar shows a fact not appearing in the Jackson Case, i. e. that the Mexican National Railroad extends into and is operated in the state of Texas; and that being the case, and as the plaintiff has a right to sue in the circuit court, we doubt if the locality of the defendant’s railroad, given as sufficient for nonsuiting Jackson in the courts of the slate of Texas, is sufficient to nonsuit the present plaintiff in the circuit courts of the United ¡States sitting in Texas. The question of international comity is controlled and decided by international law and custom, and the decisions of local courts are not controlling in the courts of the United States. Huntington v. Attrill, supra; Greaves v. Neal, 57 Fed. 816. Clearly the opinion and decision of the supreme court of the state of Texas ought not to, and does not, control in the proper decision of the questions here involved. Our lengthy discussion of the case comes from our high appreciation of the acknowledged ability of the judges of that court, and in deference to our learned brother of the circuit court, who appears to have followed the same.

Having considered ihe important questions presented in this case in the light of the numerous authorities cited by counsel, and many others within our reach, we conclude that neither in reason nor on aui hortty are the special exceptions to the amended original petition well founded. The judgment of the circuit court is reversed and the case remanded, with instructions to overrule the special exceptions, and thereafter proceed in the trial and determination of the case according to law.