Kaneko v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 31 August 1908
• Docket Number: 1,345.
• Citation: 164 F. 263
• Parties: KANEKO v. ATCHISON, T. & S.F. RY. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

164 F. 263

KANEKO v. ATCHISON, T. & S.F. RY. CO. et al.

No. 1,345.

United States Circuit Court, S.D. California, Southern Division.

August 31, 1908

Byron Waters, for plaintiff.

A. S Halsted, for defendant San Pedro, L.A. & S.L.R. Co.

WELLBORN District Judge.

This is an action brought by an administrator to recover damages for the death of his intestate, at the time a resident of Riverside county, Cal., alleged to have been occasioned through the negligence of the defendants. The heirs are a widow and three children, subjects of the emperor of Japan and residents of that country, and neither of whom has ever been in the United States. The abstract and only question raised by the demurrer is whether or not, under section 377 of the Code of Civil Procedure of California, nonresident aliens, who are heirs of the deceased, can maintain the action therein provided for. Said section, as far as pertinent here, is as follows:

'When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. * * * '

The Supreme Court of California has not passed upon the question and the decisions construing similar statutes outside of this state are inharmonious. The cases denying the right of action are as follows: Deni v. Railroad Co., 181 Pa. 525 37 A. 558, 59 Am.St.Rep. 676; Maiorano v. B. & O. Ry. Co., 216 Pa. 402, 65 A. 1077, 116 Am.St.Rep. 778; McMillan v. Spider Lake, etc., Co., 115 Wis. 332, 91 N.W. 979, 60 L.R.A. 589, 95 Am.St.Rep. 947; Brannigan v. Union Gold Mining Co. (C.C.) 93 F. 164; Roberts v. Great Northern Ry. Co. (C.C.) 161 F. 239; Zeiger v. Pa. R. Co. (C.C.) 151 F. 348; Adam v. British, etc., S.S. Co., (1898) 2 Queen's Bench Div. 430. The cases upholding the right of action are the following: Mulhall v. Fallon et al., 176 Mass. 266, 57 N.E. 386, 54 L.R.A. 934, 79 Am.St.Rep. 309 (in this case, it should be noted, the opinion was delivered by Holmes, Chief Justice of Massachusetts, now one of the Associate Justices of the United States Supreme Court); Pittsburgh, etc., R. Co. v. Naylor, 73 Ohio St. 115, 76 N.E. 505, 3 L.R.A.(N.S.) 473, 112 Am.St.Rep. 701; Philpott v. Mo. P.R. Co., 85 Mo. 164, 167; Chesapeake, O. & S.W.R. Co. v. Higgins, 85 Tenn. 620, 622, 4 S.W. 47; Augusta R.R. Co. v. Glover, 92 Ga. 132, 142, 143, 18 S.E. 406; Kellyville C. Co. v. Petraytis, 195 Ill. 215, 63 N.E. 94, 88 Am.St.Rep. 191; Luke v. Calhoun Co., 52 Ala. 115; Szymanski v. Blumenthal (Del.) 3 Pennewill, 558, 52 A. 347; Romano v. Capitol City B. & P. Co., 125 Iowa, 591, 101 N.W. 437, 68 L.R.A. 132, 106 Am.St.Rep. 323; Tanas v. Municipal G. Co., 88 A.D. 251, 84 N.Y.Supp. 1053; Bonthron v. Phoenix L. & F. Co., 8 Ariz. 129, 71 P. 941, 61 L.R.A. 563; Renlund v. Commodore M. Co., 89 Minn. 41, 93 N.W. 1057, 99 Am.St.Rep. 534; Pochahontas C. Co. v. Rukas, 104 Va. 278, 51 S.E. 449; Vetaloro v. Perkins (C.C.) 101 F. 393; Davidsson v. Hill, (1901) 2 King's Bench Div. 606.

The argument used in the early cases in support of defendants' contention that nonresident aliens are excepted from the statute seems to be as follows: The right of action for the death of a person did not exist at common law, and is purely statutory. Such statutes have no extraterritorial force, and are presumed to operate only between and upon citizens of the states respectively enacting them, and not in any way to affect the rights of foreigners, either by way of restricting or augmenting their natural rights. To include nonresident aliens is against the spirit and policy of the statutes. These statutes are based upon Lord Campbell's act, and no English case holds that said act extends to nonresident aliens. Deni v. Penn. R. Co., 181 Pa. 525, 37 A. 558, 59 Am.St.Rep. 676, decided May 27, 1897, summarized the argument as follows:

'No case has been cited to us, nor are we aware of any, in which a nonresident alien, whether husband, widow, child, or parent of the deceased, has maintained a suit, under the act of April 26, 1855 (P.L. 309), to recover damages for an injury causing death. 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, Sec. 19), and April 26, 1855 (P.L. 309). 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. * * * There is nothing on the face of the act which limits the protection afforded by it to our own citizens. It is referred to as another illustration of the general rule that we do not legislate beyond our jurisdiction.'

These views, it seems to me, and as will appear later on, could never have been otherwise than inconclusive, and now carry even less weight than when they were first expressed. The statute of California (section 377 of the Code of Civil Procedure above quoted) contains no language excluding nonresidents or aliens from its operation, but, without any restrictive phraseology, confers a right of action upon the heirs of the deceased. It is difficult to find words more comprehensive or unequivocal than those the statute employs. Nor is there anything in the nature or objects of the statute which justifies the exception claimed by defendants.

On the contrary, quoting from Szymanski v. Blumenthal, supra:

'The history, genius, and policy of our institutions, as well as the general development of the resources and industries, and the steady growth of the population and material prosperity of our state and nation, to say nothing of the enlightened progress of the age, seem to be against such a rule. In this case it is admitted that the plaintiff's husband lost his life from an injury occurring to him whilst actually engaged in our city and state in behalf of one of our industrial establishments. The plaintiff sues to recover damages for the injury she has suffered by her loss of his aid in supporting her and supplying her daily wants, etc. If he lost his life whilst here contributing to the development of the industries and to the progress and welfare of our state and country, it seems but just and reasonable that our state should allow his widow the use of its appropriate judicial tribunal and mode and means of redress for the wrong and injury shown to have been done to her within its limits by its own citizens.'

In Renlund v. Commodore Mining Company, 89 Minn. 41, 47, 93 N.W. 1057, 1059, 99 Am.St.Rep. 534, the court says:

'Turning, now, to the language of our own statute, there is not a word or expression indicating an intention to limit its application to persons residing within the state, or to residents of sister states. The object of the statute was to remedy the harshness of the common law, and in some degree compensate those dependent upon the person killed. It would indicate an unnatural and selfish motive to draw a distinction between the dependent relatives who reside in another state or foreign government and those residing in our own state; and, unless such intention is manifest, we are not at liberty to assume that the lawmakers were legislating upon any such basis. As stated by the learned Chief Justice in Mulhall v. Fallon, supra, it is well known that a large percentage of the laborers who come within the borders of the state to seek employment leave their families and relatives behind. We think it is more in accordance with the spirit of the age that this statute be construed to have a universal application, and that it is intended to restore to the dependent, wherever the place of residence, in some degree, compensation for a loss resulting from an act of negligence committed within the state.'

In Bonthron v. Phoenix Light & Fuel Co., 8 Ariz. 129, 71 P. 941, 61 L.R.A. 563, 566, the court says:

'We do not think that, in order to entitle an alien to maintain this action, specific authority therefor must be granted such alien by the Legislature. The act is broad and comprehensive, and by its terms includes any surviving husband, wife, child, or parent, irrespective of their residence or citizenship; and this includes aliens, in the absence of any restrictive legislation. We know of no rule of law that prohibits the Legislature from extending such rights to nonresident aliens, or prevents their accepting the same. As Mr. Chief Justice Holmes said, in effect, supra, legislative power is territorial, and restricted thereto only so far as it imposes duties on persons outside its jurisdiction, and not in so far as it confers benefits. The object of the act is to extend beyond the limits of the common law the right to recover reparation for a wrong, and we fail to see why, the wrong having been committed, the same reparation should not be made, whether those entitled to it are citizens of a state of our Union, or citizens of that country whose law we have inherited, and whose legislation in this instance we have

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