
    ALIENS — STATUTES—DEATH.
    [Jefferson (7th) Circuit Court,
    May Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    J. Oscar Naylor, Admr. v. Pittsburgh, C. C. & St. L. Ry.
    1.. Nonresident Aliens Entitled to Benefits Conferred by Secs. 6134, 6135 Rev. Stat. .
    Nonresident aliens are entitled to the benefits conferred by Secs. 6134, 6135 Rev. Stat., and an action may be maintained for their, benefit, for negligently causing death in this state.
    2. Citizens of Italy Have Right of Action in Ohio fob "Wrongful Death.
    Under th'e treaty between the United States and the Kingdom of Italy, ratified November 18, 1871, citizens of that kingdom haye the same right to enforce a claim in this country respecting property as o.ur own c(tiz;ens, and á claim in favor of next of kin for negligently caúsing death in 'this state is a property right.
    Error to Jefferson common pleas court.
    A. C. Lewis, Golcfzier, Rodgers & Froelich and D. M. (frqfier, for plaintiff in error:
    Alieps are entitled to the benefit of- statutes providing fpr Recovery for, death by wrongful act. 2 Cyc. 10.8; Mnlhall y. FaUpn, 176 Mas?,. 266 [57 N.'e. Rep. 386; 79 Am. St. Rep. 309] ; Yetaloro v.'Pprldns, íoí Red. Rep. 393; Luke v. Calhoun Co. 52 Ala. .115; Augusta fity. v„ G[ov.er, 92 Ga. 132 [18 S. É. Rep. 406, 413]; Philpott y. Railway,. §5 Mo, 164.; Kellyville Coal Co. v. Petraytis, 195 Ill. 215 [63 N. E. Rep. 94; 88 Am. St. Rep. 193]; Baker v. Portland, 5-Sawy. 566 [2 Fed.-Cas..472] ; Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1, 211 [6.L. Ed...23].. .
    The right of action under Sees. 6134, 6135 -Rev-. Stat is “property.” Wabash, St. X/. & P. Ry. v. Shacklett, 10 Ill. App. 404; Wabash, St. L. & P. Ry. v. Shacklet, 105 III. 364, 382; Goltra -v. -People, 53 Ill. 224, 225; Pritchard v. Norton, 106 U. S.-124, 132 [1 Sup. Ct. Rep. 102; 27 L. Ed. 104]; Hartfprd- & N. H. Ry. v. Andrews, 3.6 Conn.. 213, 214, 215.
    A right of action is a sufficient, asset, or.property, upon which to found administration in a county where' service can be had upon the defendant. Morris v. Railway, 65- la. 727 .[23 N. W. Rep. 143; 54 Am. Rep. 39]; Mo. Pac. Ry. v. Bradley, 51 Neb. 596 [71 N. W. Rep. 283]; Bruce v. Railway, 83 Ky. 174; Brown v. Railway, 97 Ky. 228, 230-, 232 [30 S. W. Rep. 639]; Findlay v. Railway, 106 Mich.- 700, 702 [64 N. W. Rep. 732]; Hutchins v. Railway, 44 Minn. 5, 6 [46 N. W. Rep. 79]; Boston & M. Ry. v. Hurd, 108 Fed. Rep. 116, 123, 124 [47 C. C. A. 615]; Wabash, St.'L. & P. Ry. v. Shacklett, 10 Ill. App. 404; Wabash, St. L. & P. Ry. v. Shacklet, 105 Ill. 364, 382; Goltra v. People, 53 Ill. 224, 225.
    Article 3 of the treaty between Italy and the United States, concluded February 26, 1871, provides, that “the citizens of each of the high contracting parties shall receive in the states and territories of the other most constant protection and security for other persons and property, and shall enjoy in this respect the samé rights and privileges as are or shall be-granted to the natives on their submitting themselves to the conditions imposed upon the natives.” Senate Exec, documents, Vol. 1, part 2, page 581, 48 Cong., second session.
    The constitution, laws and treaties of the United States are as much a part of the law of every state -as its own local laws and constitution. Article 6, U. S; Const.,; Hauenstein v. Lynham, 100 U. S. 483 .[25 L. Ed. 628];-Worcester v. Georgia, 31 U. S. (6 Pet.) 515, 575 [8 L. Ed. 483]; Owings v. Norwood, 9 U. S. (5 Cranch) 344 [3 L. Ed. 120]; Vare v. Hylton, 3 U. S. (3 Dali.) 199, 236 [1 L. Ed. 568]; 26 Am. & Eng. Enc. Law (2 ed.) 544, 557; Underhill, Evidence (Civil) Sec. 242; see Rice, Evidence; Adams v. Akerlu, 168 Ill. 632 [48 N. E. Rep. 454]; Scharpf v. Schmidt, 172 Ill. 255 [50 N. E. Rep. 182]-. ■
    ■The plea of. alienage ■ is discouraged in England, and., the-United States and is .a.-defense .not favored in the law. 1 2 Cyc.--107, -n. 89; p. 108; Denniek-v.:Railway, 103'U,-S!. 11, 13 [26 L: Ed.-439] -; Stewart v. Railway,- 168 TL U.-445,, 448; [IKSup.. Ct- Rep. 105; 42 L. Ed. :537]j •Handy'v. Insurance Co. 37-Ohio-St. 366,'370. ■
    
      Dunbar & Sweeney, for defendant in error.
   COOK, J.

The action below was to recover for negligently causing death of Bassillo Marino. The deceased was a native of the Kingdom of Italy, and had been but a short time in the state of Ohio, working for defendant in error but a few days. At the time of his death he had a wife and two children residing in Italy, and who still reside there. Defendant in error in the court below set up as a second defense in its answer, that the beneficiaries on whose behalf 'the action was prosecuted, were nonresident aliens, being residents of the Kingdom of Italy. To this defense a general demurrer was filed, which the court overruled, holding that it was a complete defense to the action, and the petition of plaintiff was dismissed.

The question and only question made upon error is: Can an action be maintained for negligently causing the death of a person in this state, where the beneficiaries are nonresident aliens?

This question has been determined differently in the different states, and from the decisions it would seem that it has been differently determined in England, where liability for negligently causing death was first created by statute, and that this question is not yet settled there.

The authorities being antagonistic, it becomes necessary to determine the question largely on principle, .giving to the decisions of the different states that consideration to which they seem to us to be entitled, and following those that we consider most in consonance with reason and correct principle.

Most of the difficulty arises from the difference of opinion existing as to the manner of construing the acts of the different states, fashioned after Lord Campbell’s act. Some eminent courts have held that such statutes, being in derogation of the common law, should be strictly construed, while others, particularly the Supreme Court of the United States, have held that they are remedial in their nature and therefore should be liberally construed.

This court followed the holding of the Supreme Court of the United States in the case of Schell v. Iron Sheet & Tube Co. 26 O. C. C. 209, where the authorities are referred to.

Keeping in view that' the purpose to be accomplished by these statutes is primarily to get.rid of a maxim ol the common law, regarding the surviving of personal actions and the comprehensiveness of pur.own statute’ it would seem ihat there ought not to be a .difference of opinion upon the question; and yet the courts of some of the states, with statutes as broad as our own, have held that nonresident.aliens can derive no benefit from this statute.

Section 6134 Rev. Stat. is very general. .It. provides:

‘ ‘ Whenever the death of a person shall be caused by wrongful act, neglect or default,. and the a.ct, neglect or default is such as. would (if death had not, ensued) have entitjed the party injured to maintain an action and recover damages in respect thereof, then and in every such case the corporation which, or the person, who. would have been liable if death had not ensued, * * * shall be liable to, an action for damages, notwithstanding the death of the person injured;” that is to say, the corporation or person shall be liable in damages in the same manner as if death had not ensued, and if the person or corporation is to. be liable in the same manner as if death had not ensued, how can it be said that this language is not sufficiently comprehensive to include nonresident aliens as beneficiaries?

Section 6135 Rev, Stat. is as follows:

“Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused. ’ ’

There is no question as to the liability of the person or corporation if death'had not ensued, and the same liability by express language of the statute attaches in case of death, the manner of proceeding and the parties to be benefited being fully provided for. To hold that such actions cannot be maintained for the benefit of nonresident aliens, it seems to us, would he a partial nullification of the statute.

The case of Deni v. Railway, 181 Pa. St. 525 [37 Atl. Rep. 558; 59 Am. St. Rep. 676], is the initial case holding to the restrictive rule and is the case generally relied upon in all the states that hold that an action cannot be maintained for the benefit of nonresident aliens. The syllabus reads:

“Under the act of April 26, 1855, P. L. 309, which gives a right to recover damages for an injury causing death, a nonresident alien mother has no standing to maintain an action against a citizen of the state of Pennsylvania to recover damages for the death of her son.”

It must be conceded that the statute of Pennsylvania is, in all essential particulars, the same as the statute of our own state. In that state the action is prosecuted directly in the name of the beneficiaries, while in our own ah administrator is appointed who prosecutes the suit for the benefit of the beneficiaries; but these distinetions are unimportant!

We are not impressed with, the reasoning of * the learned judge who delivered the opinion of the court in that case. He says, pagé 55.9:

“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 purview 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 and policy of the statute that we cannot adopt it. A nonresident defendant is not entitled to the benefit of our exemption laws, although the language of these laws may admit of a construction which would include him. It has been so held in a number of our cases. In this connection the language of Mr. Justice Sterrett in Collom’s Appeal, 2 Pennypaeker 130, is pertinent. In delivering the opinion of the court, he said: ‘While nonresident debtors may, perhaps, be within the letter of the act, we do not think they are within the spirit. As was said by Mr. Justice Woodward in Yelverton v. Burton, 26 Pa. St. 351, and afterwards quoted approvingly by the present chief justice in McCarthy’s Appeal, 68 Pa. St. 217, we do not legislate for men beyond, our own jurisdiction. ’ In one respect, at least, our act of 1855 resembles our exemption laws. It is intended primarily for the benefit of the family of which the deceased was a member. ’ ’

This would seem to be a very close and narrow construction of the statute; and the statement of the learned judge is in some respects inaccurate. His reasoning would seem to make, the case apply to all nonresidents whether residents of the other states of the Union or of foreign nations.. He says the statute “has no extraterritorial force.” That-is in direct conflict with the holding of the courts in nearly all the states and of the Supreme Court of the United States. See cases cited in Schell v. Iron Sheet & Tube Co. supra. Indeed, the courts of Pennsylvania enforce the statutes of the different states upon this subject. Knight v. Railway, 108 Pa. St. 250 [56 Am. St. Rep. 200]. Again he says “we do not legislate for persons beyond cur jurisdiction.” That is not ip accord with the generally accepted doctrine. As was said by Mr. Chief Justice Holmes, now of the Supreme Court of the United States, in Mulhall v. Fallon, 176 Mass. 266, 268 [57 N. E. Rep. 386, 387; 79 Am. St. Rep. 309]:

“It is true that legislative power is territorial, 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 si^eh persons, and if, as is usually the ease, the power that -governs them 'makes no- objection, there is nothing-to" hinder their accepting what is offered.

Our'Supreme Court has-repudiated the doctrine of Knight v. Railway, supra, on the reasoning therein contained, that nonresident debtors are not entitled- to'the benéfit-of- our exemption laws under the general terms contained in the statute where there are no express words extend-' ing their benefit to nonresident debtors. In Sproul v. McCoy, 26 O. S. 577, it was held:

‘ - The exemptioná from execution or sale allowed to ‘every person who has a family,’ finder the1 provisions of the act of April 16, 1873 (70 O. L. 132), may be claimed'.by any-debtor against whom" an action is prosecuted in the courts of this state, whether such debtor be or be not a resident of this state.”

In Mulhall v. Fallon, supra, Mr. Chief Justice Holmes, after referring to-the different cases on the-subject, further says:

“The question, then, becomes one of construction, and of construction upon a point upon which it is probable that the legislature never thought when they passed the act. In view of the decisions to which we have-referred, we lay on one side,-as too absolute some expressions which are to be found in the English cases, some of which are Cited in Adam v. Steamship Co. 79 Law T. (N. S.) 31. Our different relation to our' neighbors politically and territorially, is a sufficient ground for a more' liberal rule, * * *
“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. Railway, 181 Pa. St. 525 [37 Atl. Rep. 558]; Brannigan v. Mining Co. 93 Fed. Rep. 164. But compare Knight v. Railway, 108 Pa. St. 250. 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. Railway, 85 Mo. 164, 167; Chesapeake, Ohio & S. W. Ry. v. Higgins, 85 Tenn. 620, 622 [4 S. W. Rep. 47]; Augusta Ry. v. Glover, 92 Ga. 132, 142, 143 [18 S. E. Rep. 406]; Luke v. Calhoun Co. 52 Ala. 115; 118, 120.
“Under the statfiteythe action for death without conscious suffering takes-the--place -of an action that would have been brought by the -employe himself'if the*harm'hád beén less, and by his representative if it had been equally j?reat, but the death had been attended"with pain. Stat/ 1887,-C.''270; See. 1;" Cl. 3: Tn the latter' ease tlreré would-be no exception to the'Mght'Of re'covery if-the 'next’of'-ldn‘were nonresident aliens.- It. would be .strange .to -read an exception-into general words when the wrong is so near identical, and when the different provisions are part of one scheme.”

The first paragraph of the syllabus of this case is:

.“A statute cannot impose duties, upon a nonresident -alien, but it mgy confer rights upon him. ■ Statute 1887, C. 270, ’ Sec. 2, confers a right to sue upon the next of kin,--who-is a nonresident alien; ”

From the foregoing considerations we- are of opinion that nonresident aliens are entitled to the benefit of our statute.- 'Our relations'with foreign countries, like the relations between thé states, are now too close to put a construction upon a statute of such character,' not necessarily required-by’settled rules of construction.- We should also take into consideration, in arriving at the intention of the legislature when it -enacted this law,- and the various amendments, the condition of business -and,the population of our state. Large numbers of foreign'citizens were ■employed upon our railroads, -in our manufactories and -industries, who lad dependent relatives in foreign lands. Can it be supposed that it was th.e purpose, and Intention of the legislature to -discriminate 'against these foreign dependents ? If so, it- would be -an act not only unjust and unconscionable, but would be placing a .premium upon the employment «of foreign labor to the exclusion of our-own citizens. ■ -It would be saying to employers of labor, “employ-a foreigner and, in the event of his ■death by negligence, you are not responsible; employ a citizen and,- upon lis death, under the same circumstances, you will be responsible.” To so hold would be imputing to the general assembly an intent to make a narrow and unjust discrimination.

There is another reason Why the'sustaining of the demurrer to the second defense was clearly wrong. The widow and children of the decedent were, subjects of the Kingdom of Italy. With that country and the United States there are treaty obligations, and the federal constitution provides in Par. 2, Art. 6:

“This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. ’ ’

The treaty, in article three provides as follows:

“The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection. and security for their persons and property, and shall enjoy in this-respect the same rights and privileges as are or shall be granted to the-natives, on their submitting themselves to the conditions imposed ,by the-natives. ’ ’

The widow and children of Basslllo Marino have submitted themselves to the >conditions imposed upon the natives of this country and state. They have had an administrator appointed upon the estate of their deceased husband and father; they have come regularly into our courts, meeting all requirements of our practice and ashing that they have the same rights and privileges as our own citizens. Can we say, in the light of this treaty, that they shall not have and receive the same-consideration and rights as any person within the state ? We think not.. It is very doubtful if a statute, could be enacted by our legislature, discriminating against the residents of the Kingdom of Italy as to property,, and it is unnecessary to cite cases to show that such a claim as these-Jiext of kin assert in this action, is property. If the legislature did make-such discrimination, the courts could not enforce it, for the reason that it would be against the supreme law of the land. However that may be,, this treaty was ratified November 18, 1871, and our statute lias been, amended several times since that date and it is hardly to be supposed that the general assembly would continue to legislate in direct antagonism to this treaty; but on the contrary, the presumption is that the-intention was that the broad language used in Secs. 6134 and 6135 Rev.. Stat. should include nonresident aliens as well as residents of our own state.

The judgment of the court of common pleas will be reversed, with; instructions to sustain the demurrer to the second defense, and for further proceedings.

Laubie and Burrows, JJ., concur.  