Kellyville Coal Co. v. Petraytis

• Decision Date: 21 February 1902
• Parties: KELLYVILLE COAL CO. v. PETRAYTIS.
• Court: Illinois Supreme Court

195 Ill. 215

63 N.E. 94

KELLYVILLE COAL CO.

v.PETRAYTIS.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from appellate Court, Third district.

Action by Mariyona Petraytis against the Kellyville Coal Company. From a judgment of the appellate court affirming a judgment for plaintiff (95 Ill. App. 635), defendant appeals. Affirmed.

D. D. Evans and Guy M. McDowell, for appellant.

Geo. T. Buckingham, for appellee.

WILKIN, C. J.

This is an appeal from a judgment of the appellate court for the Third district affirming a judgment rendered against the Kellyville Coal Company in favor of appellee, Mariyona Petraytis, in the circuit court of Vermilion county, for causing the death of her son, Antone Petraytis. The deceased was employed in the coal mine of appellant, and was killed by the falling of a large rock from the roof of the room in which he was working. The declaration charges a willful violation of and a willful failure to comply with the provisions of the statute relative to miners, by the coal company, in not delivering timbers for props, etc., at the usual place when demanded, and in not having its mine examined, as provided in sections 16 and 18 of ‘An act to revise the laws in relation to coal mines and subjects relating thereto, and providing for the health and safety of persons employed therein,’ approved April 18, 1899, in force July 1, 1899. Hurd's Rev. St. 1899, p. 1157, c. 93. It is averred that decedent was killed by reason of such violation and failure, and that appellee is his mother, and was solely dependent upon him for support. To the declaration the plea of not guilty was interposed. Upon the issues thus joined the case was tried. At the close of the plaintiff's evidence counsel for appellant moved that the jury be instructed to find the defendant not guilty, one of the reasons assigned being that the evidence disclosed the fact that the plaintiff was a resident of Lithuania, under the sovereignty of Russia, and therefore incapable of maintaining her suit. The motion was denied, and the trial proceeded. The motion to instruct the jury to return a verdict for the defendant was renewed at the close of all the evidence, and again denied. The jury returned a verdict in favor of the plaintiff for $1,650. The appellate court has affirmed the judgment rendered upon that verdict, and the cause is brought here upon further appeal.

The only question of law before this court now urged as a ground for reversing the judgment below is that the plaintiff could not maintain this action by reason of her being a nonresident alien. It is contended by counsel for appellee that the record does not clearly show appellee to be a nonresident alien, and it is said the burden of proving that fact is upon appellant. But, under our view of this case, it may be conceded appellee was, at the time of bringing this suit, a nonresident alien; our opinion being that such fact does not disqualify her from maintaining her action. The statute in question (section 33) provides that, for any injury to person or property occasioned by any willful violation of the act or willful failure to comply with any of its provisions, a right of action shall accrue ‘to the party injured, for any direct damagessustained thereby; and in case of loss of life by reason of such willful violation or willful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life,’ etc. The language used does not except nonresidents nor preclude them from the right to sue under its provisions.

In the case of Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386,79 Am. St. Rep. 309, a case, in fact and principle, much like the one at bar, where...