The Atchison v. Ux

• Decision Date: 06 July 1906
• Docket Number: 14,709
• Citation: 74 Kan. 314,86 P. 301
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. MATEO FAJARDO et ux

86 P. 301

74 Kan. 314

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. MATEO FAJARDO et ux

No. 14,709

Supreme Court of Kansas

July 6, 1906

Decided July, 1906.

Error from Shawnee district court; ALSTON W. DANA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEATH BY WRONGFUL ACT--Parties--Non-resident, Alien Parents. Non-resident, alien parents, next of kin of a minor son whose death was wrongfully caused by the negligence of another, may maintain an action to recover for his death.

2. DEATH BY WRONGFUL ACT--Requisite Proof of Anticipated Benefits--Verdict Not Excessive. In such a case proof as to the value of actual services rendered or which might have been rendered by the minor son is not indispensable to a recovery, but there must be evidence to justify a reasonable expectation of pecuniary benefit to his parents in the continuance of his life. In the present case it is held, that the testimony of the age, intelligence and habits of the minor, his relationship and disposition toward his parents, and of their situation, is deemed to be sufficient to justify a reasonable expectation of future benefits, and to sustain the award which the jury made.

William R. Smith, O. J. Wood, and Alfred A. Scott, for plaintiff in error.

B. J. Horton, R. S. Horton, and Bishop & Mitchell, for defendants in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

This was an action for the negligent killing of Carlos M. Fajardo, brought by his father and mother against the Atchison, Topeka & Santa Fe Railway Company. The Fajardos were native-born inhabitants of Porto Rico, and the parents still reside there. Carlos, who was over sixteen years of age when he died, had been sent to school in New York for about two years, after which he was placed in the University of Kansas, where he was being fitted for professional life in the law department of that institution. In June, 1903, he started on a trip to Porto Rico to spend the vacation with his parents, but was killed in a head-on railroad collision within the limits of Kansas. The father and mother, who were next of kin, brought this action to recover the value of his life, and the jury awarded them $ 4000.

It is argued that the Fajardos cannot maintain the action because they are aliens, or at least are not entitled to the protection of the statutes enacted for the benefit of the people of the state. It is difficult to think of native-born inhabitants and residents of Porto Rico as aliens. Living as they do in territory belonging to the United States, under laws enacted and regulations prescribed by the United States, and owing no allegiance to any other nation than our own, it is not easy to regard them as aliens who should be excluded from the courts and denied the remedies provided in our statutes. Some question has arisen as to whether the revenue provisions of the federal constitution apply to the territories recently acquired from Spain, and as to their exact status in our government, but it is unnecessary in this case to determine whether Porto Ricans are within the scope and operation of all our laws, fundamental and statutory, or whether legislation by congress extending citizenship to them and fixing their status in our government is necessary. If we assume that they are not in fact citizens of the United States, the plaintiffs were nevertheless entitled to maintain the action. The statute which permits a recovery in behalf of next of kin for wrongful death does not make it conditional on the plaintiff's being a citizen of the United States. It provides:

"When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased." (Code, § 422; Gen. Stat. 1901, § 4871.)

As will be observed, the only conditions prescribed are that the act or omission which caused the death shall be such that if the party killed had lived he might have maintained an action against the wrong-doer for the injury resulting from the same act or omission; that the personal representatives of the deceased must begin the action within two years; and that the damages, which are limited to $ 10,000, must inure to the next of kin. The section giving the right of action is general in its terms and appears to apply to all widows and children or next of kin of the deceased, regardless of residence or nationality. A number of cases brought under this section, where the beneficiaries were aliens, have passed through this court without contest, on the theory that this remedy, like all common-law remedies, was available alike to residents and non-residents, citizens and aliens. While statutes enacted by the legislature have no operation outside the state, they do apply to all who come within the state, and to all rights arising within its limits. In jurisdictions where common-law principles obtain, and where no exceptions have been made, the theory is that the statute-law is all-pervading, operating alike upon all who are or come within the state. It recognizes every right arising within its jurisdiction. Generally speaking, all who are or come within the bounds of the state must yield obedience to the law, and all may appeal to it for protection and avail themselves of its remedies. It is true that an action for wrongful death could not be maintained under the common law until what is known as Lord Campbell's Act, and state statutes similar to it, were enacted. The passage of these acts, however, removed the obstacle to a recovery for negligent killing, and the right of action is now as available as any of the common-law remedies. The statute giving the right of action is remedial in character, and should receive a liberal interpretation, with a view of extending the remedy to those who have suffered damages from the death of a relative which was caused by the wrongdoing of another.

It is said that the remedy is not available to aliens because they are not specifically mentioned in the statute; but our legislature has never proceeded upon the theory that it was necessary to enumerate the classes to whom the law should apply, nor that the remedies afforded should not be available to aliens unless expressly conferred upon them. A great many statutory remedies are given in the Kansas statutes, but it has never been supposed that they were to be withheld from non-resident aliens because not expressly enumerated in the statute. On the other hand, it has been the theory that in the absence of an express exception the remedies provided by statute are open to every one who appeals to our courts to the same extent as are the ordinary common-law remedies. The courts in interpreting similar statutes have held that non-resident aliens were entitled to avail themselves of the remedy given. In Massachusetts it was held that a non-resident, alien mother might recover for the wrongful death of her son. (Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309.) The same view was taken of the same statute in the United States circuit court in Vetaloro v. Perkins, 101 F. 393. In Iowa, where an Italian resident of that state was killed, it was held that his mother, who resided in Italy, might recover damages resulting from her son's death. In deciding the question it was said:

"Under the common-law theory, laws are territorial in their operation; and, while a sovereign may legislate with reference to its subjects outside of its territorial jurisdiction, general legislation is assumed to apply to all persons residing, all property situated, and all rights arising within its territorial jurisdiction, regardless of the status of the parties, as being citizens or aliens. As to the rights arising or recognized within the jurisdiction, a non-resident alien may maintain suit in the courts without any special statutory authority." (Romano v. Brick & Pipe Co., 125 Iowa 591, 593, 101 N.W. 437, 68 L. R. A. 132, 106 Am. St. Rep. 323.)

In Illinois, in the case of Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N.E. 94, 88 Am. St. Rep. 191, a non-resident, alien mother brought an action against a coal company for negligently causing the death of her son in a coal-mine in that state. The supreme court sustained her right to maintain the action, saying:

"It may be said here that neither citizenship nor residence is requisite to entitle a person to sue in the courts of Illinois. That right is certainly not questioned when sought to be exercised here by citizens of other states, and we perceive no reason why it should be granted to citizens of other states of the Union but denied to persons living in foreign countries." (Page 218.)

The supreme court of Minnesota, in the case of Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N.W. 1057, 99 Am. St. Rep. 534, had before it the question whether a non-resident alien might bring an action under a statute authorizing the next of kin to sue for compensation for the death of a human being due to the negligence of another. In construing the statute, and holding that the action could be maintained, it was remarked:

"The object of the statute was to remedy the harshness of the common law, and in some degree compensate those dependent upon the person killed. It would indicate an unnatural and selfish motive to draw a distinction between the...