Patek v. American Smelting & Refining Co.

• Decision Date: 11 June 1907
• Docket Number: 2,388.
• Citation: 154 F. 190
• Parties: PATEK v. AMERICAN SMELTING & REFINING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

154 F. 190

PATEK v. AMERICAN SMELTING & REFINING CO.

No. 2,388.

United States Court of Appeals, Eighth Circuit.

June 11, 1907

James F. Drake, for plaintiff in error.

Charles R. Brock (Milton Smith, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

VAN DEVANTER, Circuit Judge.

This was an action instituted in the Circuit Court of the United States for the District of Colorado by a father to recover damages for the death of his son. The complaint alleged that the plaintiff was a nonresident alien, that the defendant was a New Jersey corporation engaged in smelting and refining ores in Colorado, and that the son, while in the employ of the defendant at one of its smelting plants at Pueblo, Colo came to his death through its negligence. Upon a demurrer to the complaint, the case was disposed of adversely to the plaintiff upon the theory that the statute of Colorado giving a right of action for death negligently caused by another when rightly interpreted, excludes nonresident aliens from among the beneficiaries therein named.

The statute reads (Mills' Ann. St. Secs. 1509, 1510):

'Sec 1509. Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable, if death had ensued, shall be liable to an action for damages notwithstanding the death of the party injured.

'Sec. 1510. All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in the first section of this act, and in every such action the jury may give such damages as they may deem fair and just, not exceeding five thousand (5,000) (dollars), with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled to sue; and also having regard to the mitigating or aggravating circumstances attending any such wrongful act, neglect or default.'

Section 1508-- section 1 of the original act-- declares that the damages may be sued for and recovered, first, by 'the husband or wife,' or, second, by 'the heir or heirs,' or, third, by 'the father and mother,' or the survivor of them; and there is nothing in the context restricting these terms to residents or citizens, or indicative of a purpose to use them with other than their natural and ordinary meaning, save that it appears the words 'heir or heirs' are used in the sense of child or children-- that is, lineal descendants.

As the case is presented to us, the sole question for decision is: Are nonresident aliens excluded from among the beneficiaries, because not expressly mentioned, notwithstanding the natural and ordinary import of the language used includes the relatives named, wherever they may reside, and whatever may be their citizenship? The affirmative of the question is said to be sustained because (1) the laws of a country have no intrinsic force proprio vigore beyond its territorial jurisdiction and limits; (2) statutes generally apply to those only who owe obedience to the Legislature which enacts them, and whose interests it is its duty to protect; and (3) it is usual, in conceding or granting rights to nonresident aliens, to make express mention of them. Such is in effect the ruling in Pennsylvania and Wisconsin in respect of statutes similar to the one now before us (Deni v. Pennsylvania R.R. Co., 181 Pa. 525, 37 A. 558, 59 Am.St.Rep. 676; Maiorano v. Baltimore & Ohio R.R. Co., 65 A. 1077, 216 Pa. 402; McMillan v. Spider, etc., Co., 115 Wis. 332, 91 N.W. 979, 60 L.R.A. 589, 95 Am.St.Rep. 947); but the negative of the question is maintained in Massachusetts, Illinois, Delaware, Minnesota, Arizona, Iowa, Indiana, Virginia, New York, Ohio, Kentucky, and Kansas (Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386, 54 L.R.A. 934, 79 Am.St.Rep. 309; Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N.E. 94, 88 Am.St.Rep. 191; Szymanski v. Blumenthal, 3 Pennewill (Del.) 558, 52 A. 347; Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N.W. 1057, 99 Am.St.Rep. 534; Donthron v. Phoenix, etc., Co. (Ariz.) 71 P. 941, 61 L.R.A. 563; Romano v. Capital, etc., Co., 125 Iowa, 591, 101 N.W. 437, 68 L.R.A. 132, 106 Am.St.Rep. 323; Cleveland, etc., Co. v. Osgood, 36 Ind.App. 34, 73 N.E. 285; Pocahontas Collieries Co. v. Rukas' Adm'r, 51 S.E. 449, 104 Va. 278; Alfson v. Bush Co., 182 N.Y. 393, 75 N.E. 230, 108 Am.St.Rep. 815; Pittsburgh, etc., Co. v. Naylor, 73 Ohio St. 115, 76 N.E. 505, 112 Am.St.Rep. 701, 3 L.R.A. (N.S.) 473, and note; Trotta's Adm'r v. Johnson, 90 S.W. 540, 28 Ky. Law Rep. 851; Atchison, etc., Co. v. Fajardo (Kan.) 86 P. 301). In England the rulings are conflicting and unsettled. Thus in Adam v. British & Foreign Steamship Co., (1898) 2 Q.B. 430, it was held by Darling, J., that, for the reasons before stated, Lord Campbell's act, the parent statute, does not give a right of action for the benefit of a nonresident alien, while in the later case of Davidsson v. Hill, (1901) 2 K.B. 606, that ruling was disapproved by Kennedy and Phillmore, JJ., and a right of recovery on behalf of a nonresident alien widow was sustained. The negative of the question also has support in Luke v. Calhoun County, 52 Ala. 115, where it was held that a statute giving a right of action against a county to the husband or widow, or next of kin, of any person assassinated or murdered therein, could be as effectually invoked by a nonresident alien widow as if she were a resident and citizen; in Jeffersonville, etc., Co. v. Hendricks, 41 Ind. 48, 71, Philpott v. Missouri Pac. Ry. Co., 85 Mo. 164, Chesapeake, etc., Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47, and Augusta Ry. Co. v. Glover, 92 Ga. 132, 142, 18 S.E. 406, where it was held that the rights conferred by a statute like the one before us are not restricted to persons domiciled in the state; and in Dennick v. Railroad Co., 103 U.S. 11, 19, 26 L.Ed. 439, where, in denying a contention that the provision in the New Jersey statute, 'Every such action shall be brought by and in the names of the personal representatives of such deceased person,' limited the right of action to a personal representative appointed in that state, it was said:

'The advocates of this view interpolate into the statute what is not there. * * * The statute says the amount recovered shall be for the exclusive benefit of the widow and next of kin. Why not add here, also, by construction, 'if they reside in the state of New Jersey'? It is obvious that nothing in the language of the statute requires such a construction. Indeed, by inference it is opposed to it. The first section makes the liability of the corporation or person absolute where the death arises from their negligence. Who shall say that it depends on the appointment of an administrator within the state?'

In the federal courts there have been but few direct rulings upon the question. Baltimore & Ohio R.R. Co. v. Baldwin, 75 C.C.A. 211, 144 F. 53, and Zeiger v. Pennsylvania R.R. Co. (C.C.) 151 F. 348, turned upon the interpretation of state statutes by the courts of the states enacting them; the former giving effect to the ruling in Ohio and the latter to that in Pennsylvania. Vetaloro v. Perkins (C.C) 101 F. 393, arose under the Massachusetts statute in advance of its interpretation by the state court, and the right of recovery on the part of a nonresident alien was sustained in a strong opinion by Circuit Judge Colt, in the course of which it is said:

'To exclude nonresident aliens from the right to maintain an action under section 2 is to incorporate into the act a restriction which it does not contain. It is to refuse compensation to a

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