Pocahontas Collieries Co v. Rukas' Adm'r

• Decision Date: 28 June 1905
• Citation: 104 Va. 278,51 S.E. 449
• Parties: POCAHONTAS COLLIERIES CO. v. RUKAS' ADM'R.
• Court: Virginia Supreme Court

104 Va. 278

51 S.E. 449

POCAHONTAS COLLIERIES CO.

v.RUKAS' ADM'R.

Supreme Court of Appeals of Virginia.

June 28, 1905.

1. Negligence — Declaration — Right to Demand Specific Statement.

A declaration charging various grounds of negligence, and averring that each was the proximate cause of the injury complained of, is not demurrable because it leaves defendant ignorant of the particular act of negligence relied on, but defendant, under the express provisions of Va. Code 1904, § 3249, may demand a more specific statement of the ground of complaint.

2. Death by Wrongful Act — Resident Alien—Right to Recover.

Va. Code 1904, § 2902, providing that when the death of a person shall be caused by the wrongful act of another, and the act is such as would, if death had not ensued, have entitled the injured person to sue therefor, the person guilty of the wrongful act shall be liable to an action for damages, and section 2904, providing that the amount recovered shall be paid to decedent's personal representative, and distributed to the wife, etc., of decedent, authorize an action for the wrongful death of a resident alien, for the benefit of his resident alien widow and children, residing in another state.

3. Master and Servant — Death op Employe—Negligence—Evidence.

Evidence in an action against an employér for the death of an employé employéd in a coal mine examined, and held to support a finding that the employér was guilty of actionable negligence for failing to warn the employs of the danger in entering the mine because of noxious gases therein.

Error to Circuit Court, Tazewell County.

Action by Anton Rukas' administrator against the Pocahontas Collieries Company. There was judgment for plaintiff, and defendant brings error. Affirmed.

Rucker, Anderson & Hughes and J. H. Fulton, for plaintiff in error.

Chapman & Gillespie, James H. Stuart, and A. S. Higginbothan, for defendant in error.

WHITTLE, J. This action was brought to recover damages for the death of plaintiffs intestate, Anton Rukas, which is imputed to the negligence of the defendant.

On the morning of November 14, 1901, Rukas, while at work as a collier in the service of the defendant, in one of its mines located near the town of Pocahontas, was overcome and suffocated by smoke and gases generated from fire in an adjoining mine, and conveyed into the mine in which he was employéd through connecting galleries.

There was a verdict and judgment for plaintiff, and the defendant brings error.

The first assignment of error relates to the action of the court in overruling the demurrer to the declaration; the objection being that it charges various grounds of negligence, to each of which the accident is proximately ascribed, thus leaving the defendant unapprised of the particular act of negligence which it is called upon to answer.

This objection affords no sufficient ground for demurrer. It is permissible under the practice in this jurisdiction for the plaintiff to allege any number of distinct acts of negligence, and the defendant may guard against surprise by resort to the provisions of section 3249 of Va. Code 1904, which, in a proper case, entitles him to demand a more specific statement of the real ground of complaint. City of Richmond v. Leaker, 99 Va. 1, 37 S. E. 348; Wood v. Am. Nat. Bank, 100 Va. 306, 40 S. E. 931.

The second assignment of error involves the ruling of the court in sustaining the motion of the plaintiff to reject a plea of the defendant which denies the right of the personal representative of a nonresident alien to maintain an action for his death under section 2902 of the Code.

At common law an alien domiciled in a country is entitled to the protection of its laws, and in return therefor owes temporary allegiance to the country of his adoption during the period of his residence. He Is subject to the law, as well as entitled to its protection, and is liable to be tried and punished for crime, and may sue and be impleaded in the proper courts to the same extent as a citizen. The general doctrine is stated thus: "While the rights of aliens depend entirely upon the municipal law of the state or nation, or the rights which are given aliens by international law, in the United States, except as to certain political and municipal rights to which citizens only are entitled, resident alien friends have practically all and the same rights and privileges as citizens. These rights and privileges include both personal rights, such as the right to dwell safely in the country, and the right of protection to person, reputation and other relative rights, and property rights." 2 Cyc. 89, and authorities cited.

In the same volume, at page 108, it is said: "So, also, it has been held that an alien might maintain an action for statutory damages or penalty for death by wrongful act." Many of the cases bearing on that question are there referred to.

Alien friends are included in our statute of descents, and by section 43 of the Code are permitted to acquire by purchase or descent. and hold and transmit, real estate, in the same manner and to the same extent as a citizen. These statutes indicate an intention on the part of the Legislature to extend rather than abridge the liberal policy of the common law with respect to aliens.

An examination of the authorities relied on to sustain the overruled plea shows that the decisions are controlled by the status of the parties entitled to the recovery in an action for death by wrongful act, rather than by that of the decedent in his lifetime. The distinction is sharply drawn between the rights of nonresident and of resident relations of the deceased.

Thus, in the leading case of McMillan v. Spider Lake, etc., Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947, it is held that nonresident alien relations of thedeceased are not entitled to the benefits of the Wisconsin statute giving a right of action in such case. This case reviews the authorities, English and American, on the subject, and in all of them the above-mentioned distinction seems to be observed.

So, also, in the case of Deni v. Pennsylvania R. Co., 181 Pa. 525, 37 Atl. 558, 59 Am. St. Rep. 676—a case much relied on by the defendant—it is said 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." The opinion proceeds: "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 provisions 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 of the statute that we cannot adopt it."

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.

In the ease of Mulhall v. Fallon, 176 Mass. 260, 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, Deni v. Pennsylvania R. Co., 181 Pa. 525, 37 Atl. 558, 59 Am. St. Rep. 676; Brannigan v. Union Gold Mine Co. (C. C.) 93 Fed. 164. But compare Knight v. West Jersey R. Co., 108 Pa. 250, 56 Am. Rep. 200. On the other hand, in several states the right of the nonresident to sue is treated as too clear to need extended argument. Philpott v. Missouri Pac. R. Co., 85 Mo. 164; Chesapeake, etc., R. Co. v. Higgins, 85 Tenn. 620, 4 S. W. 47; Augusta Ry. Co. v. Glover, 92 Ga. 132, 18 S. E. 406; Luke v. Calhoun County, 52 Ala. 115. * * * In all cases the statute has the interest of the employés in mind. It is on their account that an action is given to the widow or next of kin. * * * We cannot think that workmen were intended to be less protected if their mothers happen to live abroad. * * * In view of the very large amount of foreign labor employéd in this state, we cannot believe that so large an exception was silently left to be read in." See. to the same effect, Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N. E. 94, 88 Am. St. Rep. 191.

None of these cases question the right of resident aliens (by which is meant aliens domiciled in the United States, in...