Ferrara v. Auric Min. Co.

• Decision Date: 04 May 1908
• Citation: 95 P. 952,43 Colo. 496
• Parties: FERRARA v. AURIC MINING CO.
• Court: Colorado Supreme Court

95 P. 952

43 Colo. 496

FERRARA v. AURIC MINING CO.

Supreme Court of Colorado

May 4, 1908

Error to District Court, Pueblo County; John Voorhees, Judge.

Action by Fenice Ferrara against the Auric Mining Company. Judgment for defendant, and plaintiff brings error. Reversed.

See 20 Colo.App. 411, 79 P. 302.

M. J. Galligan, for plaintiff in error.

C. W Waterman, for defendant in error.

STEELE C.J.

The complaint alleges in substance that the plaintiff is the wife and widow of Pietro Ferrara, deceased; that on June 26, 1897 the deceased was employed by the defendant as a miner; and that while so employed and engaged in working in the mine of said defendant the said deceased was killed by reason of the negligence of the said defendant, and without fault of the said deceased. On January 24, 1899, the answer of the defendant was filed, and on February 27th following the plaintiff filed her reply. During the trial the defendant over plaintiff's objection, was granted leave to file an amendment to its answer, which amendment is as follows 'Defendant is informed and believes, and so alleges, that plaintiff is and at all times heretofore has been a resident of Italy, and that plaintiff is not now and never has been at any time a resident of the state of Colorado or of the United States of America, and is not entitled to bring or prosecute this action in any of the courts of the state of Colorado.' On May 6, 1901, on motion of the defendant, judgment was rendered on the pleadings for the reason that no reply had been filed to the said fourth defense. The motion was sustained, and final judgment of dismissal and that the defendant go hence without day was duly entered. Motion for new trial was denied, and the plaintiff took the case by writ of error to the Court of Appeals.

It is insisted by the defendant that, as a demurrer to the fourth defense was overruled, it became the duty of the plaintiff to reply, and, having failed to reply, judgment upon the pleadings was properly entered. The plaintiff not having replied to the fourth defense, the matters stated therein must be taken as true. The defendant was entitled to judgment upon the pleadings if the matters set forth in the fourth defense are sufficient in law to defeat the plaintiff's action. If they are not sufficient, then the judgment must be reversed. The only question, therefore, for our consideration is, is the plaintiff, being a nonresident alien, entitled to maintain the action?

Counsel contend: 'That the overwhelming weight of authority and of all the well-reasoned decisions in this country and in England establish the proposition that, since the right to maintain an action of this kind is wholly dependent upon statute, a nonresident alien has no standing in the Colorado courts. The overwhelming weight of authority is that the laws of a state or country are made for the benefit of its citizens, or those who, by becoming denizens or residents of the state or country, have intrusted themselves to the governmental department of that country, thereby submitting themselves to its jurisdiction and entitling themselves to the benefit of its laws, unless expressly excluded from their operations.' The fact is that there are but three cases in this country which sustain the contention of counsel that nonresident aliens may not maintain actions of this character. The first case is that of Deni v. Pennsylvania Railroad Company, by the Supreme Court of Pennsylvania, reported in 181 Pa. 525, 37 A. 558, 59 Am.St.Rep. 676, in which it is held, under the act of April 26, 1855 (P. L. 309), which gives a right to recover damages for an injury causing death, that a nonresident alien mother has no standing to maintain an action against a citizen of Pennsylvania to recover damages for the death of her son. In the course of the opinion the court said: 'Our legislation on this subject is in accord with the English statute of August 26, 1846, and therefore the decisions of the English courts construing this statute are often referred to in cases grounded upon our acts of April 15, 1851 (P. L. 674, § 19), and April 26, 1855. But no case has been brought to our notice in which an English court has held that a nonresident alien is entitled to the benefits conferred by the act of 1846. The same may be said of the decisions of the courts of our sister states having statutes similar to our own. * * * Our statute was not intended to confer upon nonresident aliens rights of action not conceded to them or to us by their own country, or to put burdens on our own citizens to be discharged for their benefit. It has no extraterritorial force, and the plaintiff is not within the purview of it. While it is possible that the language of the statute may admit of a construction which would include nonresident alien husbands, widows, children, and parents of the deceased, it is a construction so obviously opposed to the spirit and policy of the statute that we cannot adopt it.' The next in point of time is the case Brannigan et al. v. Union Gold Mining Co. (C. C.) 93 F. 164, decided by Judge Hallett in the year 1899, in which he held that nonresident aliens are not entitled to the benefit of the Colorado statute, and followed the decision of the Pennsylvania court. He says, after quoting from the Pennsylvania case: 'Under the circumstances I see no reason for denying the force and effect of this opinion. It appears to be founded upon good reason, and to be as applicable in Colorado as it is in Pennsylvania.' The next is the case of McMillan, Adm'r, v. Spider Lake S. M. & L. Co., 115 Wis. 332, 91 N.W. 979, 60 L.R.A. 589, 95 Am.St.Rep. 947, wherein it was held that the Wisconsin statutes do not give any right of action for the loss sustained by nonresident alien relatives of a person whose death was caused by a wrongful act, neglect, or default. These are the only cases from the courts of this country which have been cited in support of the proposition that nonresident aliens, heirs, or relatives of a person whose death was caused by wrongful act, neglect, or default are not entitled to maintain an action; but there is no dearth of authority sustaining the position of the plaintiff in this case that such action may be maintained. In the states of Iowa, Ohio, Indiana, Minnesota, and New York it is held that an action will lie by the administrator of a deceased person to recover damages for his death, even though the beneficiaries named in the statute be nonresident aliens. In the states of Georgia, Missouri, and Tennessee it is held that an action may be maintained by a nonresident of the state. In Georgia the court, speaking through Chief Justice Bleckley, significantly says: 'Whenever a Georgia mother can recover, any other mother can do so under like circumstances. The act is general in its terms, and has no hint of any discrimination in favor of residents or against nonresidents.' In Virginia the action is maintainable by resident friendly aliens, while in Illinois, Delaware, Kansas, Massachusetts, and Arizona it is held that the action is maintainable by nonresident aliens, Such also is the holding by the United States Circuit Court of Appeals for the Eighth Circuit, and the latest case we have from England holds that the personal representative of a subject of Norway is entitled to maintain an action in the English court to recover damages for an injury resulting in death. The cases are as follows: Romano v. Brick & Pipe Co., 125 Iowa 591, 101 N.W. 437, 68 L.R.A. 132, 106 Am.St.Rep. 323; Railway Co. v. Naylor, 73 Ohio St. 115, 76 N.E. 505, 3 L.R.A. (N. S.) 473, 112 Am.St.Rep. 701; Cleveland, etc., Ry. Co. v Osgood, Adm'r, 36 Ind.App. 34, 73 N.E. 285; Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N.W. 1057, 99 Am.St.Rep. 534; Alfson v. Bush Co., 182 N.Y. 393, 75 N.E. 230, 108 Am.St.Rep. 815; Augusta Railway Co. v. Glover, 92 Ga. 132, 18 S.E. 406; Philpott v. Mo. P. Ry. Co., 85 Mo. 164; Chesapeake, Ohio & Southwestern R. R. Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47; Pocahontas Collieries Co. v. Rukas' Adm'r, 104 Va. 278, 51 S.E. 449; Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N.E. 94, 88 Am.St.Rep. 191; Szymanski v. Blumenthal & Co., 3 Penniwill (Del.) 558, 52 A. 347; A., T. & S. F. R. R. Co. v. Fajardo, 74 Kan. 314, 86 P. 301, 6 L.R.A. (N. S.) 681; Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386, 54 L.R.A. 934, 79 Am.St.Rep. 309; Bonthron v. Phoenix Light Co., 8 Ariz. 129, 71 P. 941, 61 L.R.A. 563; Patek v. American Smelting & Refining Co., 154 F. 190, 83 C.C.A. 284; Davidsson v. Hill, 2 K. B. (1901) 606-and they are cases arising under statutes authorizing a recovery for the benefit of the relatives of a deceased where the death was caused by a wrongful act or through negligence or default. In the case Luke v. Calhoun County, 52 Ala. 115, the court held, construing a statute of the state of Alabama entitled 'An act to suppress murder, lynching,' etc., 'that statutes passed for the security and protection of life, in the absence of clear and unexceptionable language forcing a contrary conclusion, will be held to apply as well to aliens and mere sojourners as to citizens. The fact that the person murdered and the widow or next of kin were aliens is no defense to a recovery under the act.' Under the act in question the husband or widow or next of kin of the person murdered is entitled to maintain an action for damages.

The statutes of the states are based upon the English statute known as 'Lord Campbell's Act,' and, while they differ in matters of detail, they are all based upon the English act. In many of the states it is provided that the personal representatives of the deceased may maintain the action for the benefit of the heirs, while in Colorado and other states it is provided that the...