Low Moor Iron Co v. La Bianca's Adm'r

• Decision Date: 22 November 1906
• Citation: 106 Va. 83,55 S.E. 532
• Parties: LOW MOOR IRON CO. v. LA BIANCA'S ADM'R.
• Court: Virginia Supreme Court

55 S.E. 532

106 Va. 83

LOW MOOR IRON CO.

v.LA BIANCA'S ADM'R.

Supreme Court of Appeals of Virginia.

Nov. 22, 1906.

1. Death—Action—Right to Sue—Nonresident Alien Beneficiaries.

Under Va. Code 1904, § 2902 et seq., authorizing the maintenance of an action for the death of a person caused by the wrongful act of another, and providing that the action shall be brought in the name of the personal representative of the decedent, and that the amount recovered shall be paid to the personal representative and distributed by him to the wife, husband, and child of the decedent, an administrator of a decedent who was a resident alien, and whose widow and infant child are nonresident aliens, may bring such an action.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Death, § 38.]

2. Master and Servant—Injury to Servant—Negligence.

Where an employe engaged in mining ore undertook to punch the waste down a chute in obedience to the foreman's order without knowing, or without being able to ascertain by ordinary care that the waste was not securely supported, but was liable to give way if he worked on it, and the employer knew or by ordinary care might have known that the waste was not securely supported, it was the duty of the employer to warn the employe of the danger to which he would be exposed by so working.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 310, 316y₂.]

3. Same—Reasonably Safe Place in Which to Work.

It is the duty of an employer to exercise ordinary care to provide a reasonably safe place in which an employe is required to work.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 173, 179.]

4. Same.

Where the place where an employe was mining ore was not reasonably safe, and he was ignorant of the fact, and could not by ordinary care have discovered the danger, it was the duty of the employer to inform him of it, and, in the absence of an official of higher grade, this duty devolved on the foreman, under whom he was working, as vice principal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 297, 298.]

5. Same—Fellow Servants.

A mine boss discharging the duty of the employer in furnishing to an employe engaged in mining ore as a common laborer a reasonably safe place in which to work is a vice principal, and not a fellow servant of the employe.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 429, 434.]

Error to Circuit Court, Craig County.

Action by La Bianca's administrator against the Low Moor Iron Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

James W. Marshall and R. L. Parrlsh, for plaintiff in error.

Gordon Paxton and G. W. Layman, for defendant In error.

HARRISON, J. This action was brought to recover damages of the defendant company for the alleged negligent killing of the plaintiff's intestate. At the time of the accident the defendant was engaged in mining iron ore, and converting or manufacturing the same into pig iron. The plaintiff's intestate was an employe of the defendant, mining ore, as a common laborer, at its Fenwick mines in Craig county. There was a verdict and judgment In favor of the plaintiff for $2,000, of which $500 was allotted by the jury to the widow of the deceased, and $1,500 to his child. This judgment, at the instance of the defendant, is now before us for review.

It appears from the record that the deceased was a resident alien, and that his widow and infant son were residents of Raccuja, Sicily, and subjects of the King of Italy. The question raised by the first assignment of error is whether this action can be maintained for the benefit of the widow and son under section 2902 et seq. Code Va. 1904.

In the case of Pocahontas Collieries Co. v. Rukas' Adm'r, 104 Va. 278, 51 S. E. 449, it was decided that the action could be maintained for the wrongful death of a resident alien, for the benefit of his resident alien widow and children, residing in another state. The question now before us, where the alien beneficiaries reside in a foreign country, was discussed in that case, with citation of authority on both sides, but was not decided. The investigation of the cases then made led Judge Whittle to remark that "the weight of authority in this country, however, maintains the right even of nonresident alien relatives of the deceased to receive the benefit of these statutes."

Further investigation affords abundant proof of the accuracy of this statement. The earlier cases, both in this country and in England, denied the benefit of these statutes to nonresident aliens, but more recent judicial utterance is practically united in favor of their right to the benefit of such statutes.

In the case of Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309, Holmes, C. J., In delivering the opinion of the court, observes: "One or two cases may be found where a general grant of a right of action for wrongfully causing death has been held to confer no rights upon nonresident aliens. * * * On the other hand, in several states the right of the nonresident to sue is treated as too clear to need extended argument"—citing Philpott v. Missouri Pac. R. Co., 85 Mo. 164; Chesapeake, etc., Co. v. Higgins, 85 Tenti. 620, 4 S. W. 47; Augusta Ry. Co. v. Glover, 92 Ga. 132, 18 S. E. 406; Luke v. Calhoun County, 52 Ala. 115.

This case establishes the right of nonresident aliens to the benefit of the Massachusetts wrongful death statute, which is similar toour own. The most recent cases all follow the Massachusetts rule. Kellyville Coal Co. v. Petraytis, 195 111. 215, 63 N. E. 94, 88 Am. St. Rep. 191; Szymanski v. Blumenthal (Del. Super.) 52 Atl. 347; Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N. W. 1057, 99 Am. St. Rep. 534; Bonthron v. Phoenix Light & Fuel Co. (Ariz.) 71 Pac. 941, 61 L. R. A. 563; Romano v. Capital City Brick & Pipe Co., 125 Iowa, 591, 101 N. W. 437, 68 L. R. A. 132, 106 Am. St. Rep. 323; Cleveland, etc., R. Co. v. Osgood (Ind. App.) 73 N. E. 285; Alf son v. Bush, 182 N. Y. 393, 75 N. E. 230, 108 Am. St. Rep. 815; Trotta's Adm'r v. Johnson (Ky. 1906) 90 S. W. 540. In the Iowa and Kentucky Cases, supra, the beneficiaries were citizens of Italy; the other cases relate to citizens of Canada, Great Britain, Norway, Russia, etc. These cases fully sustain the affirmative of the proposition under consideration.

The theory of the cases, which deny the benefit of wrongful death statutes, a's a general rule, to nonresident aliens is that statutes have no extraterritorial force and effect, and, in the absence of any words in the statute expressly conferring this right upon nonresident aliens, the statute will be presumed to apply only to persons residing within the jurisdiction of the state.

"It is true that legislative power is territorial, " said Holmes, C. J., in Mulhall v. Fallon, supra, "and that no duties can be imposed by statute upon persons who are within the limits of another state. But rights can be offered to such persons, and if, as is usually the case, the power that governs them makes no objection, there is nothing to hinder their accepting what is offered." This learned judge further says: "In all cases the statute has the interest of the employes in mind. It is on their account that an action is given to a widow or next of kin * * * We cannot think that workmen were intended to be less protected if their mothers happened to live abroad. b * * In view of the very large amount of foreign labor employed in this state, we cannot believe that so large an exception was silently left to be read in."

The latest case in England (1901) overrules a former decision to the contrary, and holds that the fatal accidents acts apply as well for the benefit of representatives of a deceased foreigner as for those of a British subject; and the principle contended for in the prior case by the defendant, that acts of parliament do not apply to nonresident aliens, unless the language of the statute expressly refers to them, is repudiated, and the former case so holding is overruled. Kennedy, J., uses this language: "It appears to me, under all the circumstances, and looking at the subject-matter, more reasonable to hold that Parliament did intend to confer the benefit of this legislation upon foreigners, as well as upon subjects, and certainly that, as against an English wrongdoer, the foreigner has a right to maintain his action under the statutes In question." Davidson v. Hill, 2 K. B. 606.

In a recent New York case (1905), where this question is fully considered, it is said: "The principle underlying the legislation we are considering is manifestly the protection of those who suffer pecuniary loss when a laborer or servant is killed by the negligent act of the individual or corporation employing him. The clear intention of the Legislature is that the negligent employer shall no longer escape the consequences of his act by the death of his servant, but shall respond in damages to those who have suffered pecuniary loss. ...