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
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,
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. From 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:
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.
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,
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:
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
As heretofore stated, an action for wrongful death did not exist at common law.
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 jurisdiction of the United States. The Supreme Court of the United States said:
The rule stated is one of general application. As stated in American Jurisprudence:
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:
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.
I respectfully dissent. The problem is judicial in origin—not legislative— and the separation of powers provision of the Constitution should not be held to mean that only the Legislature can solve it. I therefore disagree with the conclusion of the majority that until and unless the Legislature inserts a sentence in our wrongful death statutes expressly reciting that they shall have extraterritorial effect, we may not reconsider and overrule the discredited holding in Willis v. Missouri Pacific Ry. Co., 61 Tex. 432 (1884), that a state is without power to give its laws extraterritorial force; or consider and adopt the judicial "significant contacts rule" and by so doing enforce the declared public policy of our State for the benefit of its citizens seeking redress for wrongful death.
Nor is there any assurance in the majority holding that any of this will be later accomplished should the Legislature accept the invitation to add the extraterritorial sentence. We have been under the judicial edict of this Court since 1884 that a state lacks the power to give its laws extraterritorial effect either by express legislative declaration or by judicial decision. So it is not surprising that the legislature has not attempted to so declare during these intervening eighty-four years since Willis. And even today the majority backs away from overruling this relic of the past.
This Court in Willis, and in cases following in its wake, gave no thought to the extraterritorial implications of Articles 4671 et seq., quoted in the majority opinion. This consideration could not even come to the surface because of the view then held that in no event could the statutes have extraterritorial thrust. Willis upheld a demurrer to the suit of a wife against the railway company to recover damages for the negligent killing of her brakeman husband. The injury and death occurred in the Indian Territory. The plaintiff and the deceased were residents of Texas and the railroad operated under a charter granted by the Legislature of Texas. The court said:
One later illustration of the influence of Willis will suffice. De Ham v. Mexican Nat. Ry. Co., 86 Tex. 68, 23 S.W. 381 (1893), also upheld a demurrer to the suit of a mother for damages for injuries to her son inflicted in the Republic of Mexico causing subsequent death in Texas. The court said, citing Willis:
Willis and its progeny were wrongly decided and should be overruled. Their underpinnings fall away in the modern recognition of the constitutional interest of a state with substantial ties to an occurrence outside its territorial limits in the application of its own rules of law in determining the consequences of wrongful conduct. In Richards v. United States, 369 U.S. 1, 82 S.Ct. 585,
See also Pearson v. Northeast Airlines, Inc., 309 F.2d 553, 92 A.L.R.2d 1162 (2d Cir. 1962): "We do hold, however, that a state with substantial ties to a transaction in dispute has a legitimate constitutional interest in the application of its own rules of law. * * *"
We have recently applied Texas law to determine the consequences to a Texas citizen of conduct occurring outside the State. See Texas Employers' Insurance Ass'n v. Dossey, 402 S.W.2d 153 (Tex.Sup. 1966). In King v. Bruce, 145 Tex. 647, 201 S.W.2d 803, 171 A.L.R. 1328 (1947), we quoted with approval the exception to the general rule of control by law of the state where a contract was made:
Lex loci delictus, the law of the place of the wrong, has also dominated past decisions of our courts. This is seen in the judicial treatment of the predecessor statute to present Article 4678. Illustrative is Jones v. Louisiana Western Ry. Co., 243 S.W. 976 (Tex.Com.App.1922, jdgmt adopted):
This is again seen in El Paso & Juarez Traction Co. v. Carruth, 255 S.W. 159 (Tex. Com.App.1923):
The waning influence of lex loci delictus is seen in the growing and wide acceptance of the policy which holds that the law of the forum will determine the rights of the parties in those cases where the forum state has the most significant relationship with the occurrence.
Perhaps the landmark case in the trend away from rigid application of the lex loci is Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963). There a New York resident was injured in an automobile accident while traveling with other New Yorkers in Ontario, Canada. The plaintiff sued the host-driver, who pleaded the Ontario Guest Statute as a complete bar to recovery. New York has no guest statute. The New York court adopted what it termed the "center of gravity" or "grouping of contacts" approach in holding that it would not apply the Ontario statute as a bar to recovery. The basis for the holding is that New York had sufficient contacts with the cause of action to justify the application of New York law, and that a substantial interest of the State of New York would be forwarded by doing so, while Ontario had no interest sufficient to justify the application of its law by the New York court. While Ontario would have an interest in applying its law to regulate standards of conduct, such as rules of the Ontario highways, it had no interest in regulating the rights and liabilities of New Yorkers arising from a guest-host relationship which had its origin in New York. The court stated:
The Supreme Court of Pennsylvania, in Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966), held Pennsylvania, not Georgia, law applicable in the case of an airplane crash in Georgia in route from Florida to Pennsylvania and involving only Pennsylvania passengers. The court reasoned:
Clark v. Clark, 107 N.H. 351, 222 A.2d 205, 206 (1966), considered the circumstances of an automobile accident in Vermont involving New Hampshire citizens. The Supreme Court of New Hampshire held that its law would determine the rights and liabilities of the parties, and in speaking of the lex loci delictus rule said:
Cases in accord in other jurisdictions are cited in the footnote.
I am in agreement with these decisions and would hold that the wrongful death statutes of our State may be constitutionally applied to occurrences beyond its territorial limits and that the rule of lex loci delictus will no longer bar application of the law of the forum. See in accord Restatement (Second) of Conflict of Laws § 175 (Proposed Official Draft, Part II, May 1, 1968), which reads as follows:
Turning to the case at hand, it would be difficult to pose circumstances arguing more forcefully for the rule of "most significant contacts" and against adherence to the view that the law of the place of injury is determinative of the consequences of tortious conduct. Here the only matter of concern to the State of Colorado is the conduct of the pilot during that portion of the interstate journey when the aircraft was flying in Colorado air and using Colorado airport facilities. The negligence of the pilot in causing the fortuitous crash in Colorado, and hence the accountability of those in Texas who must answer for his acts, was stipulated. Beyond this, Colorado can have no further legitimate interest. The wrongful act of the pilot did not cause the death of a Colorado constituent nor will citizens of Colorado be answerable in damages. There is no justification in logic or reason for Colorado law to nevertheless govern the substantive rights of the parties. It is a matter of indifference to that state, and in no way contrary to its public policy, that the law of Texas should determine the consequences of the conduct of the pilot. Texas is the only state of significant connection with the Texas citizens who were killed and with those who are liable therefor; its interest is maximal while that of Colorado is minimal. There is no conflict. This being so, there should be no difficulty in concluding that the Texas citizens are entitled to the benefits of the public policy reflected in the statutes of Texas as the forum state.
It is clear, furthermore, that the cause of action authorized by Article 4671 is not limited by its terms to a wrongful death occurring within the territorial limits of the State. The statute speaks only of an injury causing death by wrongful act. A territorial limitation must be engrafted by implication and there is no logic in a supposition that the legislature would want or intend to preclude its citizens from recovering full damages for wrongful death because the causative injuries happened outside our territorial limits. Nor is it to be expected that the Texas Legislature during the years, and on the occasions of the re-enactments of Article 4671, would have undertaken to expressly provide for extraterritorial reach when this Court had repeatedly said in the past that it did not have the constitutional power so to do. Nonaction under such circumstances is not legislative acquiescence and has no bearing on the judicial responsibility of deciding the thrust of the statutes, a matter to which this Court has not heretofore addressed itself, and, in my view, does not do so today.
Finally, Article 4678 does not require our courts to enforce the foreign right of action in the extraterritorial situation. The language of the statute is permissive and not mandatory. It does no more than authorize enforcement of the foreign right of action in the courts of this State if the survivors elect to seek such relief. The statutory right of action under the law of the forum otherwise available under Article 4671 is not precluded by the subsequent enactment of Article 4678. The latter statute does not purport to prescribe the conditions under which Article 4671 is applicable. It is not a mandate to our courts to enforce the substantive law of the birthplace of the cause of action when not invoked by the parties seeking compensatory damages. The underlying purpose of Article 4671 is the establishment of a statutory right of action for wrongful death. It does not purport to speak in terms of assertion of the statutory right under local law or under foreign law and does not, standing alone, authorize enforcement in our courts of a foreign right of action. Article 4678 does so with two conditions. There must be a statutory right of action given by the statutes of the foreign jurisdiction, and the trial of such action is to be governed by the procedural law of our State. The interlocking
I would reverse the judgments below and give the Texas survivors their statutory rights under the law of Texas, the forum state.
SMITH and GREENHILL, JJ., join in this dissent.
ON MOTION FOR REHEARING
The dissenting opinion filed herein recognizes at the outset that Willis v. Missouri Pacific Ry., 61 Tex. 432, and the line of cases following that decision have construed the Texas wrongful death statute as having no extraterritorial effect, and that this line of authorities must be overruled before we adopt a choice of law rule under which we could apply the Texas law rather than the Colorado law in measuring the damages to be awarded in this case.
Under the law as it now exists, there is no choice of laws. Article 4671 does not apply to wrongful acts resulting in death which are committed outside of Texas, consequently the only basis for this purely statutory action is the Colorado statute which is enforceable in Texas by virtue of Article 4678.
It is one thing for the judicial branch to amend a statute and quite another thing to modify a rule of common law. And, to overrule a court's uniform interpretation of a statute which has persisted over a long period of years as evidenced by numerous decisions, is very like amending a statute. That is why the rule of stare decisis is highly binding in this field. A series of holdings by a court of last resort should operate as an axiom or new starting point, so to speak, and if a reexamination of all decisions is to be made upon all occasions, the rule would serve no purpose and there would be no certainty in the law.
This is not the same kind of a case as Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964), wherein a true choice of law issue was presented and the stare decisis problem involved common law precedents. The doctrine of lex loci delicti is a court-made rule. Hopkins v. Lockheed Aircraft Corporation, 201 So.2d 743 (Fla.1967), and the abandonment of this rule in favor of some different one, such as a "significant contacts" rule, while it may involve the overruling of common law precedents on policy grounds, does not necessarily involve saying that a statute had one meaning fifty years ago and a different one today. In this latter situation, restraint rather than temerity may be the more becoming judicial virtue.
Many of the authorities cited by petitioners are either not apposite to the present case or adopt an entirely different approach to the problem. If the cases cited overrule prior constructions of statutes, they do not say so. At least, this seems to be true of the better considered cases, e. g., Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964), and Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963).
We should perhaps say that we cannot accept the thesis set forth in Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), i. e. that while the statutory law of Massachusetts, where the wrongful act which resulted in the death of a New York resident took place, gave rise to and controlled the substantive law applicable to the action, the limitation on the recovery that could be allowed therein was procedural in nature and hence controlled by the law of New York. See also for comparison, Hopkins v. Lockheed Aircraft Corporation, 201 So.2d 743 (Fla.1967).
Petitioners' motion for rehearing is overruled.
"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.
The bindingness of a series of holdings of a court of last resort under the rule of stare decisis is determined by the "decision" rather than the opinion or rationale advanced for the decision. 21 C.J.S. Courts §§ 181, 186, pp. 289, 297. The controlling principle of a case is generally determined by the judgment rendered therein in the light of the facts which the deciding authority deems important. Goodhart, "Determining the Ratio Decidendi of a Case," Jurisprudence in Action, p. 191. The similarity of the facts in this case to those of Willis v. Missouri Pacific Ry. is readily apparent.
Other fields in which stare decisis applies with particular force are decisions involving land titles (Cross v. Wilkinson, 111 Tex. 311, 234 S.W. 68, 1921, involving issues of both statutory construction and land titles), forms of contracts in general use, insurance policies, common law rules of long standing, upon which parties have probably relied in conducting their personal, family, and business affairs. See also, Chief Justice Bell's discussion of "Stare Decisis—What, Why, Whither?", contained in his dissenting opinion in Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796, l. c. 810 (1964).