Mexican Cent. Ry. Co. v. Chantry

1. Injury to Employé — Res Judicata — Proceedings in Mexico. In an action for personal injuries received by plaintiff in Mexico while in the employ of defendant railroad company, the transcript of proceedings in a Mexican court showing, prima facie at least, in connection with other evidence, that, when the action was instituted, proceedings in Mexico had been had, having the force of res judicata, settling adversely to plaintiff his right to recover, should be admitted in evidence. 2. Same — Negligence op Fellow Servant — Laws op Mexico. Whether the common-law doctrine as to nonliability of employers to a servant for injuries from the negligence of fellow servants prevails in Mexico is a question of fact, to be proved like other facts, in an action for personal injuries received by plaintiff in Mexico, while in defendant’s employ, through the negligence of a fellow servant. Shelby, Circuit Judge, dissenting from that part of the judgment directing a new trial, holding that the trial court should be directed to dismiss the case on the authority of Slater v. Mexican Nat. R. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900.

In Error to the Circuit Court of the United States for the Western District of Texas. This is an action brought in the court below by J. M. Chantry, defendant in error, against the Mexican Central Railway Company, Limited, plaintiff in error, to recover damages for injuries received at Ganitas, Mexico, on or about the 27th of March, 1902; said Chantry then being engaged in his employment as a freight conductor for the railway company. Plaintiff’s original amended petition in the court below sets out all the circumstances attendant upon his injuries, and, in addition, such alleged articles of the Mexican law governing eases of the kind as were deemed sufficient to show a full case for recovery. Defendant’s first amended original answer contains an exception to the plaintiff’s petition as insufficient, a general denial of the same, a plea of contributory negligence, and, in addition, the following: “(1) Defendant pleads in bar of plaintiff’s recovery herein a former judgment which is conclusive and binding upon the plaintiff, and which is conclusive of his right to recover herein under the Constitution and laws of Mexico. That in the courts of Mexico, the same having jurisdiction of the subject-matter and parties, a certain adjudication was had, as shown by the attached certified copy and its translation, wherein the court judicially determined that plaintiff was injured by reason of an accident, and that no one was to blame therefor. That, under the Constitution of Mexico, to wit, article 24, and other laws of the republic of Mexico, said decision of said court is binding, and precludes the recovery by plaintiff of any damages in any civil suit by him instituted, and said article is as follows: ‘Art. 24. Ningún juicio criminal puede tener mas de tres instancias. Nadie puede ser juzgado dos veces por el mismo delito, ya sea que en el juicio se le absuelva o se le condene. Queda abolida la praeticia de absolver de la instancia.’ The same, in effect, when translated, is as follows: ‘Art. 24. No criminal case can have more than three phases. No one can be tried twice for the same offence, be he absolved or condemned. All former laws on the subject are hereby abolished.’ That under the construction placed upon said article by the court in said republic, as to the decision of said court as set forth in the attached certified copy, and the translation thereof also attached hereto, this plaintiff has no cause of action under the laws of the republic of Mexico; the rights of the parties hereto by virtue of said finding of the court being held as finally adjudicated under said laws. Wherefore plaintiff should not be permitted to recover herein, when, under the laws of said republic, he has no cause of action, and cannot recover on account of injuries sustained as claimed by him in his said petition, and wherefore defendant prays that it go hence and recover its costs.” To the answer was attached a copy in Spanish, and a full translation thereof into English, of an alleged adjudication in the courts of Mexico in the proceedings instituted against the Mexican Central Railway Company to inquire into and adjudicate the question of fault by reason of the derailment of the railway train at Canitas on the 27th day of March, 1902, in which wreck the American, J. M. Chantry, was hurt. The original and the translation show that the court adjudged that the injuries sustained by Joseph Chantry were caused in an accidental manner, without culpability to any person whatever. To the foregoing plea the plaintiff filed general and special exceptions, and answer as follows: “(1) Because it is not certified to by the proper person. “(2) Because there is no certificate accompanying same, as required by law. “(8) Because it shows on its face that same is not a judgment of any court of record, but is only the testimony taken by the examining court, and is criminal in its nature, under a proceeding instituted by the officials of the Mexican government to determine the criminal liability of the defendant and its employés, and did not include plaintiff’s right to recover damages in this case. “(4) Because it shows on its face that plaintiff, J. M. Chantry, was not before the court, but one MacChantry. “(5) Because said instrument shows on its face that it was a criminal proceeding, and is not a judgment for or against plaintiff on his rights, under the law, to recover damages for his injuries. “(6) Because neither plaintiff nor defendant was a party to such proceeding, and for this reason neither were bound by said judgment, if same is a judgment. “Wherefore plaintiff prays that said plea be stricken from the record. “Patterson & Wallace, “Attorneys for Plaintiff. “And for further special answer hereto, comes now said plaintiff, by his attorneys, and says that, by virtue of the laws of the republic of Mexico, it is necessary to have an investigation as to the criminal responsibility of all accidents that occur in said republic; that in no event does a judgment in a criminal case bar plaintiff from his rights to a civil suit for his damages, as is shown by the attached copy of the laws of the republic of Mexico, which is here referred to and made part of this answer. “Wherefore plaintiff prays judgment of the court. “Patterson & Wallace, “Attorneys for Plaintiff.” And further appended numerous alleged articles of the law of Mexico tending to sustain the views' of the law as expressed in the exceptions. On the trial of the case, among other witnesses for the defendant, Mr. J. M. Amador testified as follows: “My name is J. M. Amador. I live at Ciudad Juarez. I am a lawyer. I am a practicing attorney. I am with Mr. Siijas. We have a company for practicing law on the other side. To practice civil and criminal law. I am a lawyer since 1885. I held the position of prosecuting attorney for more than 5 years at Zacatecas State, at the city of Zacatecas, and from 20th of November, 1900, on this other side, Chihuahua State federal court. Five years I was prosecuting attorney in the state of Zacatecas. I saw this paper. That is the court I refer to. I belonged to the same court. I am familiar with the law of Mexico with reference to criminal and civil liability for criminal acts. I have examined this paper — the Spanish copy. That is a copy of the record. This seal I know perfectly. I have read over the judgment of the court as shown by those records. Yes, sir; that is the decision of the court. That is what we call it in Spanish — office of Fomento. That means that there is no crime against any person to prosecute. Civil responsibility depends upon criminal liability. Consequently the party may be criminally liable and not civilly liable, and vice versa; but when judgment is entered by the court, showing that there is no criminal responsibility, that eliminates entirely the civil responsibility. When the judgment of the court states that there is no person responsible. For instance, a man kills another. If the defendant is found guilty of the charge, he also is civilly responsible for the murder committed. This is judgment rendered both civilly and criminally. But if judge finds, in investigation of the ease, that he has no case, or nothing to punish the man criminally for, then he is discharged for lack of proof, but then this man is liable to civil responsibility; but when no crime is proven against him, as in this case, the judgment of the court is not similar to the judgment then. In that case there is no civil responsibility whatever. This book is printed by the editor of the official bulletin by order of the Minister of Justice — publico. It is an official book. Where the court finds that no one is responsible, and that the injuries are a result of an accident, then no civil suit can be instituted, but on the other hand, if the court finds that there was not enough evidence before him to hold anybody for criminal charge, then that would not prevent the civil action, because the party was simply absorbed in the criminal case. I refer to articles 326 and 327 of the Penal Code. I will read them: ‘Art. 326. No person can be charged with civil liability upon an act or omission contrary to a penal law, unless it be proven: That the party sought to be charged usurps the property of another; that without right he caused, by himself, or by means of another, damages or injuries to the plaintiff; or that, the party sought to be charged being able to avoid the damages, they were caused by a person under his authority.’ I will read article 327: ‘Art. 327.' Whenever any of the conditions of the preceding article are established, the defendant shall be civilly liable, without regard to whether he be absolved or condemned to criminal liability.’ In reference to the word ‘absolved,’ I can explain that, if you want. If the decision of a court says that the man is not criminally responsible (that is, if some of the judges, officials, would say that there was not enough evidence presented against this man), there would be found no criminal liability; that is to say that, as to the accident, that there is not sufficient proof to condemn the man, and still there is civil responsibility. Where the judgment of the court finds that there is no one to blame, and that it was the result of an accident, no civil action can be brought upon that cause. There is no question about that. Some of the states and territories in the republic of Mexico háve two federal courts, but most of them have only one. When persons live in other parts, different from the place where the court is, the court recommends investigation, through the other courts — other federal districts of said court. This is the general code for the federal proceeding in Mexico: ‘When it is necessary to execute judicial proceedings out of the place where the suit is pending, must be charged the complaint by means of requisition papers to the federal judge, or in fault of this to the common judges of the place where the said proceedings must be practiced. It must be implied in the form of requisition papers, when the proceeding is recommended to an equal or superior judge, and that the form of requisition must be addressed to any inferior.’ That is the provision under which the court at Zacatecas acted in taking the testimony at Aguas Calientes. That is the procedure in the Mexican courts. Where the main court calls upon any minor court to make an investigation and return to it the testimony, the first court, or chief court, finds the judgment. The matter is determined by the first court, and the first court renders the judgment, submitting to the minor court the duty of discovering all testimony, but this second court only gets jurisdiction so far as this first court orders. Article 24 of the Constitution has reference to this same matter: ‘No criminal case can be of more than three phases, no one can be tried twice for the same offense, be he absolved or condemned. All further laws on the subject are hereby abolished.’ The courts in Mexico have three phases. In some states of the republic they have only two, but in only a few states. The Constitution says that no case shall have but three phases. The first phase is what is known as ‘first instance.’ Then it will go to a higher court. That will be second phase. Then we go up to the highest court. That will be the third phase. That will be the-first instance, and the second will be the appeal, and the third by publication. Case first into court is the first instance — for instance, the first instance usually starts in the ‘judge of letters,’ the district court. The second instance is the circuit court. The Constitution says that no case will be of more than three phases, and the federal court shall have only two phases. In a case where it begins at the circuit court, will go up to the Supreme Court, but not where it begins in the district court. This case began with the district court. It began with the district court of Zacatecas, and then went to the circuit court. Here is the order affirming it: ‘In the investigation held by your court relative to injuries caused to MacChantry by a Mexican Central train, the acting magistrate has accorded on the 2d of the present month, the following: With the foundation of the 2d paragraph of article 60, of the preliminary title reformed from the Federal Code of Proceedings revised, and there not appearing merits to place responsibility, I order the remittance of the originals to the District Court at once. To whom it may concern. All of which I transfer to you in compliance with orders and for the effect herein expressed, remitting to you the investigation in 11 pages.’ That is it exactly. That is the final judgment of the circuit court.” Cross-examination: “I think Mr. Chantry had something to do with that proceeding. He would not necessarily have to be a party to it, before it would be binding upon him. I am testifying about the law. I get the law in Mexico. It is not necessary for him to be a party. “(Here the plaintiff read the following article:) “ ‘Art. 308. The civil responsibility cannot be declared except at the instance of the party entitled to recover.’ “That is right. Q. Then, if he is not a party to these proceedings, he would not be bound by it? A. No, sir; that is not the same. “(Here plaintiff’s counsel reads the following:) “ ‘Art. 327. Whenever any of the conditions of the preceding article are established, the defendant shall be civilly liable, without regard to whether he be absolved or condemned to criminal liability.’ “ ‘Art. 323. If the blows or wounds cause the loss of any member indispensable for work, or the person wounded or struck remain other wise crippled, lamed or deformed by that circumstance, he shall have the right not only to the damages and injuries but also to the sum which the judges may determine as extraordinary indemnity, considering the social position and sex of the person and the part of the body remaining crippled, lamed or deformed. “ ‘Art. 324. The gain which the injured party fails to earn during his inability to work shall be computed by multiplying the sum which he formerly earned per day by the number of days of his disability.’ “ ‘Art. 326. No person can be charged with civil liability upon an act or omission contrary to a penal law unless it be proven that the party sought to be charged usurped the property of another; that without right he caused, by himself or by means of another, damages or injuries to the plaintiff; or that the party sought to be charged being able to avoid the damages, they were caused by a person under his authority. “ ‘Art. 327. Whenever any of the conditions of the preceding article are established, the defendant shall be civilly liable without regard to whether he be absolved or condemned to criminal liability.’ “ ‘Art. 325. A pardon shall in no case extinguish the civil responsibility, nor the actions to enforce it, nor the legal rights which third persons may have acquired.’ “ ‘Art. 366. Limitation is interrupted by the criminal proceedings until final judgment is pronounced. This done, the term of limitation commences to run anew.’ “No other court in the district has jurisdiction to try railroad cases, except the federal court. These proceedings originated in the district court at Zacatecas. These papers are on file at Zacatecas. These papers belong to the Zacatecas court, and will stay at Zacatecas court. I am not judge' of any court. I am not giving my opinion. I am explaining the law of Mexico. There are two different kinds of crime — private and public crimes — and in the public crimes the prosecuting attorney will make charge, and in private crimes the party. This was public crime. Not necessary to have the complaint. In private crimes it is necessary to have complaint of the crime, but in public crimes the minister of the public will be the one to prosecute. He is prosecuting attorney in this case. There are two parties to a suit in Mexico — the plaintiff and defendant. “Redirect examination: “I have read over this instrument, it is in due and legal form, according to the judgment of the court. That is a valid and binding judgment, under the law, and is to be respected in the courts. Under that judgment, no civil suit can be instituted upon that cause of action. There is no question about that.” At this stage defendant produced a certified copy of proceedings and judgment attached to his answer, and offered the same in evidence. “The court permitted said instrument to be introduced in evidence only in so far as it tended to contradict the plaintiff, but refused to permit the same in evidence as a bar or as an estoppel, or in any way as affecting plaintiff’s right to sue to recover herein. Defendant then and there offered to prove by any number of witnesses, and through competent proof, that under the laws of Mexico such judgment was and is final and conclusive, and that the same would bar plaintiff’s recovery in any civil suit involving the same cause of action in the courts of the republic of Mexico, but the court then and there refused to hear further proof, holding that said judgment would in no way be a bar or prevent the recovery of plaintiff in the courts of this country, to which action of the court in refusing to permit said instrument to be offered in evidence as a bar and estoppel, and in refusing to hear proof to show that plaintiff, under the laws of Mexico, had now, since the entry of said judgment, no cause of action, defendant then and there, in open court, excepted.”. ■ There was verdict and judgment for the plaintiff, and the railway company sued out this writ of error.