Marmon v. Mustang Aviation, Inc.

430 S.W.2d 182, 11 Tex. Sup. Ct. J. 416, 1968 Tex. LEXIS 333

• Court: Texas Supreme Court
• Decided: May 15, 1968
• Docket: B-389
• Status: Published

Opinions

NORVELL, Justice.

This is an action for the wrongful deaths of Ernest F. Marmon, Max E. Green, Max W. McNeil and George G. Sherry, who lost their lives when an airplane crashed into a mesa near the town of Kim in southeastern Colorado. The controlling question, as stated by the Court of Civil Appeals, “is whether the law of Colorado, the place of the accident, or the law of Texas, the place of trial, shall be followed and applied.” We are confronted with a problem of stare decisis and hold that the Colorado law applies.

The case was tried upon agreed facts and a complete and accurate statement is contained in the opinion of the Court of Civil Appeals. All of those killed were residents of Texas with the exception of George G. Sherry who resided in Illinois. They were on a business trip which originated in Texas. The plane was returning to Texas and had landed' in Denver for a few minutes to refuel and obtain weather information. The defendant, Mustang Aviation, Inc., is a Texas corporation, and it was stipulated that the negligence of Mustang’s pilot, also a resident of Texas, was the proximate cause of the plane crash and the death of the passengers.

Wrongful death statutes have been adopted in Texas, Colorado and Illinois. The Colorado law has a statutory limitation of $25,000.00 for each wrongful death. The Illinois limitation is $30,000.00. Texas has placed no limitation upon the amount of recovery.

The trial court rendered judgment in accordance with Colorado law. The Court of Civil Appeals affirmed. 416 S.W.2d 58. Petitioners here present the primary contention that Texas law and not Colorado law is applicable to the case.

The Court of Civil Appeals in an able opinion sets forth the law of this state as heretofore declared by the Legislature and the Texas courts. This court has repeatedly held that our wrongful death statute, Article 4671,¹ does not have extra-territorial force. However, the lower appellate court calls attention to recent developments relating to the “most significant contacts rule” which is described as one of the newer concepts of conflicts of law. It is stated in the opinion that:

“We have been urged to adopt the new doctrine of most significant contacts. We find much merit in the doctrine, and, if free to act in a cause of first impression, we would be inclined to explore the doctrine more fully with a view to consideration of adoption. But we are bound by Article 4678 and the construction placed on the statute by the Supreme Court and by decisions of other courts of Texas. * * * ”

The petitioner vigorously and ably argues that the State of Colorado actually has little concern with this unfortunate accident which took the lives of four Texans and one Illinois resident while they were returning to Texas on a, business trip in behalf of a Texas based commercial activity, and points out that the defendant is a Texas corporation and that the negligent pilot was also a Texas resident. Prom these circumstances, it is contended that essentially this is a Texas controversy which should be controlled by Texas law.

The portions of our wrongful death statute which are applicable here are:

“Article 4671. Cause of action

“ * * * An action for actual damages on account of the injuries causing the death of any person may be brought in the following cases:

“1. When an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskilfulness, or default of another person, association of persons, joint stock company, corporation * * * his, its or their agents or servants, such persons * * * shall be liable in damages for the injuries causing such death. * * *

“2. When an -injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskilfulness, or default of the proprietor, owner, charterer or hirer of any industrial or public utility plant, or any railroad, street railway, steamboat, stage-coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, wrongful act, neglect, carelessness, unskilfulness or default of his, their or its servants or agents, such proprietor, owner, charterer or hirer shall be liable in damages for the injuries causing such death. * * * ”

“Art. 4672. Character of wrongful act

“The wrongful act, negligence, carelessness, unskilfulness or default mentioned in the preceding article must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.”

“Art. 4678. Death in foreign State

“Whenever the death or personal injury of a citizen of this State or of the United States, or of any foreign country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by the wrongful act, neglect or default of another in any foreign State or country for which a right to maintain an action and recover damages thereof is given by the statute or law of such foreign State or country, such right of action may be enforced in the courts of this State within the time prescribed for the commencement of such actions by the statutes of this State. The law of the forum shall control in the prosecution and maintenance of such action in the courts of this State in all matters pertaining to the procedure.”

The provisions of Article 4678 became a part of the law of Texas long after the original wrongful death statute was adopted. See Acts 1913, 33rd Leg. ch. 161, p. 338, and Acts 1917, 35th Leg. ch. 156, p. 365. This enactment does not purport to give extraterritorial effect to the Texas wrongful death statute. Its purpose was simply to provide that a right of action arising under the laws of a foreign state or country for the wrongful death of a Texas citizen could be enforced in the Texas courts. The words, “whenever the death' * * * of a citizen of this State * * * for which a right to maintain an action * * * is given by the statute or law of such foreign state * * * such right of action may be enforced in the courts of this State * * * ” are abundantly clear as to the legislative intention.²

As pointed out in the opinion of the Court of Civil Appeals, the courts of this state have repeatedly held that Article 4671 has no extraterritorial application. We need not discuss the Texas cases so holding except as necessary to review one contention which is strongly urged by the petitioner. While some of the cases heretofore decided simply declare that our wrongful death statute has no extraterritorial effect,³ the early case of Willis v. Missouri Pacific Ry. Co., 61 Tex. 432 (1884), stated a reason or rationale for its holding, viz.:

“But where the right of action does not exist except by reason of statute, it can be enforced only in the state where the statute is in existence and where the injury has occurred, that is to say, the cause of action must have arisen and the remedy must be pursued in the same state, and that must be the state where the law was enacted and has effect.

“The principle upon which the doctrine rests is the want of power in a state to give laws an extraterritorial effect.”

It is pointed out that in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 587, 7 L.Ed.2d 492, decided in 1962, the Supreme Court of the United States said:

“Where more than one State has sufficiently substantial contact with the activity in question, the forum State, by analysis of the interest possessed by the States involved, could constitutionally apply to the decision of the case the law of one or another state having such an interest in the multistate activity.”

It is argued that the rationale stated in Willis is no longer operative and under the view taken by the Supreme Court of the United States, as well as other authorities, it cannot now be legitimately maintained that a state cannot adopt a statute having an extraterritorial effect. If this proposition be accepted as sound, it does not necessarily follow that we should now hold that Article 4671 has an extraterritorial thrust. It would be far reaching, to say the least, for us to say that an enactment of the Legislature adopted over a hundred years ago now has a different meaning and a more far reaching thrust than it did when construed by this court in 1884. We are not here dealing with the common law which is our special domain but with a cause of action which did not exist at common law but is wholly a creature of statute. And in the area of statutory construction, the doctrine of stare decisis has its greatest force. Moss v. Gibbs, 370 S.W.2d 452 (Tex.Sup.1963). A statute is the creation of the Legislature and should an interpretation of a statute by the courts be unacceptable to the Legislature, a simple remedy is available by the process of legislative amendment. United States v. South Buffalo Ry., 333 U.S. 771, 68 S.Ct. 868, 92 L.Ed. 1077 (1947).

As heretofore stated, an action for wrongful death did not exist at common law.⁴ In 1846, the British Parliament passed Lord Campbell’s Act (9 & 10 Viet. Ch. 93), providing for the recovery of damages in case of wrongful death. Practically all the American jurisdictions adopted similar acts with varying provisions. Many of these acts, including that adopted in Colorado, placed a limit upon the amount of recovery. The first wrongful death statute was adopted in Texas in 1860 (Acts 1860, 8th Leg. ch. 35, p. 32, 4 Gammel’s Laws of Texas 1394).

The cause of action is provided for in Article 4671. There is nothing contained in the wording of this article nor the wording of any of the other articles contained in Title 77, “Injuries Resulting in Death,” which can be construed as expressly giving extraterritorial effect to the Texas wrongful death statute. The most that can be said is that the statute is silent as to the matter and hence the legislative intent thereto is not known. Admittedly, there are two questions involved, namely, the extent of the legislative power, and the intention of the legislative authority. This is made clear in Foley Bros. v. Filardo, 336 U.S. 281, 69 S.Ct. 575, 93 L.Ed. 680 (1949), wherein the question raised' was whether the Fair Labor Standards Act had application beyond the territorial juridiction of the United States. The Supreme Court of the United States said:

“The question before us is not the power of Congress to extend the Eight Hour Law to work performed in foreign countries. Petitioner concedes that such power exists. Cf. Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375; United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149. The question is rather whether Congress intended to make the law applicable to such work. We conclude, for the reasons expressed below, that such was not the intention of the legislators.

"First. The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, Blackmer v. United States, supra, 284 U.S. at 437, 52 S.Ct. [252] at page 254, 76 L.Ed. [382], 375, is a valid approacl whereby unexpressed congressional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions. We find nothing in the Act itself, as amended, nor in the legislative history, which would lead to the belief that Congress entertained any intention other than the normal one in this case. * * *

“There is no language in the Eight Hour Law, here in question, that gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control. * * * ”

The rule stated is one of general application. As stated in American Jurisprudence :

“Implied Territorial Limitations.— Unless the intention to have a statute operate beyond the limits of the state or country is clearly expressed or indicated by its language, purpose, subject matter, or history, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state or country enacting it. To the contrary, the presumption is that the statute is intended to have no extraterritorial effect, but to apply only within the territorial jurisdiction of the state or country enacting it, and it is generally so construed. An extraterritorial effect is not to be given statutes by implication. * * *” (50 Am.Jur. 510, Statutes § 487).

Not only does our wrongful death statute contain no wording indicating that the Legislature intended that the Act should have extraterritorial force, but, as pointed out in the opinion of the Court of Civil Appeals, it has been repeatedly held by the Texas courts that it does not. In addition to these considerations, the provisions of Article 4671, which give rise to the action, have been on our statute books in one form or another since 1860. They have been carried forward without substantial change in wording in the Texas Revised Statutes of 1879, 1895, 1911 and 1925. While the rule is not invariable, it is well settled, as a general proposition, that:

“[T]he Legislature must be regarded as intending statutes, when repeatedly re-enacted, as is the case here, to be given that interpretation which has been settled by the courts. Love v. Wilcox [119 Tex. 256] 28 S.W.(2d) 515, 524 (11) [70 A.L.R. 1484]; Pearson v. West, 97 Tex. [238] 239, 77 S.W. 944.” Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931).

The anatomy of petitioner’s counter-argument that stare decisis does not here apply is this: (1) The holding of the Supreme Court of Texas that a statute such as the wrongful death act had no extraterritorial effect was based upon the premise that the Legislature lacked constitutional power to give such effect to the act. (2) Under modern concepts and approaches, particularly since Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 587, 7 L.Ed.2d 492 (1962), the constitutional inhibition against extraterritoriality is no longer valid. (3) Therefore, this court should attribute to the Legislature an intention to enact a statute having extraterritorial force. We must reject this argument. An intention that the statute should have extraterritorial effect cannot be gathered from the wording of the statute, hence we do not have and will not have a “choice of laws” situation unless and until the Legislature gives extraterritorial force to the statute.

The circumstance that we may believe that a case such as this should be controlled by Texas law or that the Legislature, after the development of the “significant contacts rule,” should have amended the statute so as to give it an extraterritorial effect, does not authorize us to enter the legislative field. We have not yet adopted the theory that the Legislature’s non-action authorizes judicial action in legislative matters.

The judgments of the District Court and the Court of Civil Appeals are affirmed.

Dissenting opinion by STEAKLEY, J., joined by SMITH and GREENHILL, JJ.

1 . All article references are to Vernon’s Ann.Tex.Stats.

2 . The emergency clause to the 1917 Act recites that:

“The fact that there is now no law permitting citizens of this State, or of a foreign state or country, who may be killed or injured in a foreign state or country, for bringing an action for such injury or death under the laws of this State and in the courts of this State, creates an emergency,” etc.

3 . “The law of the place where the cause of action arose, the lex loci delictus, must determine the nature of the cause of aetion, and the defenses, if any, available. The case asserted must stand or fall upon that law. 12 C.J. pp. 452-454; El Paso & N.W. Ry. Co. v. McComus, 36 Tex.Civ.App. 170, 81 S.W. 760, 761 (writ refused); Thomas v. Western Union Tel. Co., 25 Tex.Civ.App. 398, 61 S.W. 501, 502 (writ refused); [Mexican Nat.] Ry. Co. v. Jackson, 89 Tex. 107, 113, 33 S.W. 857, 31 L.R.A. 276, 59 Am.St.Rep. 28.” Jones v. Louisiana Western Ry. Co., 243 S.W. 976 (Tex.Com. of Appeals 1922).

4 . “In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiffs wife, must stop with the period of her existence.” Lord Ellen-borough in Baker v. Bolton, 1 Campbell 493, 170 Eng.Reprint 1033 (1808).