Sanbo v. Union Pac. Coal Co.

• Decision Date: 12 May 1904
• Docket Number: 4,463.
• Citation: 130 F. 52
• Parties: SANBO v. UNION PAC. COAL CO.
• Court: U.S. District Court — District of Colorado

130 F. 52

SANBO v. UNION PAC. COAL CO.

No. 4,463.

United States Circuit Court, D. Colorado.

May 12, 1904

Doud &amp Fowler, for plaintiff.

Teller Dorsey, for defendant.

HALLETT District Judge (orally).

No 4,463, Andrew Sanbo, administrator of the estate of August Wainianpaa, against the Union Pacific Coal Company, is an action to recover damages for the death of plaintiff's intestate. The complaint charges that the defendant is a corporation organized in Wyoming, and operating coal lands in that state, and it employed August Wainianpaa to work in its mines, and that he was killed in the mine from certain machinery not being fenced as required by a statute of the state of Wyoming. Thereupon, owing to the negligence of the defendant in failing to fence such machinery in the mine, the company became liable to pay the plaintiff damages under the law of that state. The section of the law of Wyoming is set out in the complaint, and it provides that, if the life of a person employed in a mine shall be lost from failure to comply with the provisions of the act, the administrator of the estate of the person whose life shall be lost may recover damages for the loss. Defendant demurred on the ground that an administrator appointed in the state of Colorado, as the plaintiff alleges he was appointed, has no right of action for a death occurring in Wyoming under the statute of that state. In the argument of the demurrer the plaintiff's counsel relied upon certain decisions of the Supreme Court of the United States and the Supreme Courts of other states, in which it has been held that an administrator appointed in a foreign state to that in which the injury occurred may maintain an action under the provisions of Lord Campbell's act. The principal case upon which counsel relied is Dennick v. The Railroad Company, 103 U.S 11, 26 L.Ed. 439. In that case it was held that an action arising under Lord Campbell's act in the state of New Jersey might be prosecuted in New York by an administrator appointed in that state. Upon this decision, and numerous others, no doubt now exists as to the right of an administrator, appointed either in the state in which the injury occurred or in the state in which the action may be brought, to maintain an action for damages based upon that act. In the discussion of the subject in the various authorities as to e right of an administrator appointed in a foreign state there are some peculiarities which may be worth while to mention in this connection. A case which arose in South Carolina, which is entitled 'Ex parte Northeastern Railroad Company,' reported in 38 S.E. 634, 54 L.R.A 660, presents the question whether, when the deceased resides in a foreign state, and is killed by an accident occurring upon a railroad, an administrator may be appointed in that state in which the accident occurred to bring a suit under Lord Campbell's act in the state in which the accident occurred. In this instance, after the administrator had been appointed and had brought suit for the death of his intestate, the railroad company applied to the court in which the administrator was appointed to revoke the letters issued to him upon the ground that the deceased had no residence in the state of South Carolina, but was a citizen of the state of Florida, and his property other than that which arose from the killing upon the railroad was all in the state of Florida. The court decided that an administrator could be so appointed even where there was no property on the deceased within the state, and the sole purpose of the appointment was to maintain a suit upon Lord Campbell's act. This, however, was so close a question that the court was divided upon it, and there was a dissenting opinion filed by one of the judges. The argument was close and learned on the part of both the judge dissenting and the majority of the court. The same thing occurred in Nebraska, in Missouri Pacific R. Co. v. Bradley, which is reported in 51 Neb. 596, 71 N.W. 283, in respect to the right to make an appointment in a case of loss of life, under Lord Campbell's act, in the state in which the death occurred; and there the court, consisting of three judges and three commissioners (who had no vote), affirmed the judgment below; the chief justice and the commissioners dissenting. In a case which is reported in 168 U.S. 447, 18 Sup.Ct. 105, 42 L.Ed. 537 ...