.93 FEDERAL REPORTER.
veYed"theinformation that the insurance covered by the policies in suit had· been :replaced;. yet it does not appear that White took any this act in his behalf. Furthermore,White, while steps on the stand, made no denial that Tillinghast was authorized to substitute insurance, nor did he testify that he exceeded his authority in so doing. We should also consider, as bearing upon the question of original authority, the fact that White adopted the benefits of what the broker did, and made claim under the substituted policies, and received moneys on account thereof. Tillinghast's authority was not questioned by the plaintiffs at the time of the loss. On the contrary, the new policies were accepted, and claim made and payment received thereunder; and the old policies now in suit were surrendered on the 24th of August, about four days after the fire, after the plaintiffs had taken legal and other advice. On the whole evidence, I am of the opinion that, by a preponderance of evidence, it is established that the substitution of new policies for old was duly authorized, and that, before the time of the loss, the liability of the defendants had ceased, through the substitution of other contracts of insurance for those of the policies in suit. If, for any purpose, the parties desire they may within a more specific statement of findings of fact or 10 days present requests therefor. Judgment will be for the defendants. ' BRANNIGAN et al. v. UNION GOLD-MIN. CO. (Circuit Court, D. Colorado. No. 3,827. DEATH BY WRONGFUL' ACT-RIGHT OF ACTION' UNDER COLORADO STATUTENONRESIDENT AUENs.
March 11, 1$99.)
Nonresident aliens are not entitled to the benefit of the Colorado statute giving a right of action for death by wrongful act to the next of kin of the deceased, and cannot maintain an action thereunder.
On Demurrer to Complaint. Scott Ashton, for plaintiffs. Wolcott & Vaile and Charles W. Waterman, for defendant. B. Brannigan against the Union Gold-Mining Company is an action
HALLETT, District Judge (orally). James Brannigan and Mary
to recover damages for the death of the plaintiffs' son. Decease!,! was in the employ of the defendant company, and it is alleged that his death occurred from negligence of the company in respect to the management of the mine while he was in such employment. The action is based upon the statute of the state which gives the right to the father and mother to recover damages in the case of a death occurring through the negligence of the defendant under circumstances shown in the complaint. A demurrer was put in to the complaint upOn the ground that it appeared in the complaint that plaintiffs are nonresident aliens, they being citizens and residents of Ireland, in the kingdom of Great Britain. It is not averred that they were ever residents of Oolorado, or any part of the United States. In support
BRt\NNIGAN V. UNION GOLD-MIN. CO.
165
of its contention; defendant cited the case of Deni v. Railway Co., 181 Pa. St. 527, 37 AU. 558. That is a case in which it was ruled that a nonresident alien has no right of action under a statute similar to the statute of this state. I have examined the statute of Penn· sylvania, and upon this question it is the same as the statute of Colo· rado; that is to say, the right of action is given to certain representa· tives of the deceased gf'nerally, and without any statement as to whether they shall be citizens of Pennsylvania or residents of Penn· sylvania. In that respect the statute is not different from the star ute of the state of Colorado. The reasoning of the court upon the subject is clear and full to the point that such a statute cannot be taken to be for the benefit of people residing in foreign parts. The court says that case has been brought to our notice in which an English court has held that a nonresident alien is entitled to the benefits conferred by the act of 1846." The act of 1846 I understand to be Lord Campbell's act, which has been the precedent for all statutes in this country. "The same may be said of the decisions of the courts of our sister states having statutes similar to our own;" that is to say, there is no decision anywhere upon this sUbject other than that made by this court. Under the circumstances, I see no reason for denying the force and effect of this opinion. It appears to be founded upon good reason, and to be as applicable in Colorado as it is in Pennsylvania. The plaintiffs' counsel was able to call the attention of the court to the case of Luke v. Calhoun Co., 52 Ala. 118. That case was founded upon an act entitled "An act to suppress murder, lynching, assaults and batteries" (Laws 186R, p. 452), and it appears from the statement of the case-I have not seen the act referred to, but it appears from the statement of the case-that it allowed the surviving parents to recover a penalty of $5,000 for the death of a son occurring through violence; such recovery to be against the county in which the crime was committed. The court in that case held that nonresident aliens could recover under that act, but the decision appears to have been upon the ground that this was an act to suppress crime and to punish criminal· acts; in other words, it was an act under the police power of the state, to preserve the peace and good order of the community. It was an act to protect people liv· ing within the several counties of the state in their lives and persons. In that view, an alien reffiding in the state was as much entitled to protection as a citizen, and it was so held. I do not see that the case is at all similar to the case at bar. The statute of Colorado giving damages under the circumstances detailed in the complaint, and the statute of Pennsylvania as well, upon which the decision reported in 181 Pa. St. and 37 Atl. is based, are not acts for the suppression of crime. They are not acts under the police power of the state. ,They are acts of benefit to the survivors of persons who suffer death from the negligent acts of others, to give them some compensation for the loss sustained by them in the death of the person injured. So that there is a very full distinction between the Alabama case and the Pennsylvania case. Counsel also called attention to McConville v. Howell, reported
l6:(} decision which the rigbt,of nQ<prel;lident prqperty in [upon .'!l statute of .the, state of. Co,lorad(). which. ,rtight;j)f judgment, the statute referred to theact,re:Iating .to persoIJ,al, injuries, and d/ilmages therefor. the damage perSons entitled to hllyft ,p;llDages for the death o{ ,.any person do not stand in right The st::ttutedoes,lnot give them the action, as heirs of mo,neys '¥!'lcovered are not ,the estate of the or perllQP they are recoY(ll'edby the individuals named in tbe n()t as a matter of inheritance from the',Cleceased perso'n" ,So far as I have been able to investigate the Qlle1i\tiop, '. the rule of, applied to the Pennsylvania statute; and it ought to be said here,. as that living in ,foreig1t)p.nds b,ave no right rof acpionunder the statute. The de· murl1er.wi,ll ,be sustained, ;ang. the suit dismissed, at the cost of the plaintiffs. . , .' , .' . ., , rJ;hesame or\ler will be in No. 3,828, John Fitz· The arethesame in each case.
in
,DURANT MIN. CO, v. PERCY CONSOLo MIN. CO.
, I ;
Court of i , :. . : I , " · : ··
Eighth Circuit. March W;1,899.) 'No.: ;1.,116. ',' : ,:
1.
J.
2. I
. :While 'one who wlUfl1l1y and' intentionally takes ore fr9m another's mine istl6tel'ltltlM to deduction from the value thereof fot' labol' bestowed, where rthe·tllking was iIjlldvertent, ,and under an honest .mistake as to the ow¥eVilhiIl of the land, only the y.aIue of the property in ltsorigi, ',nai place,cflrn be , SAME":,,BoUNDARY. LINE-J)I1;;COV;E);Ry-NEG:[,IGFlNCE.
OF DAlIfAGES.
<:
1.,
.
'
Where i a' :trespasser on' lanll' of anoth,er falls to use ordinary care to ascertllin :Uie·'botindat·y line between. his land and that '011 'which he entered,. the j,ury, may infer that the trespass was intentional. as. to defendant's intent in. ta\i:ing ore from an· other's land adjoining his mine was conflicting, an instruction that, if defendant 'had. beennegiLgent in. faillngto discover the location 0'1' his property, .lie 'wascstopped' to saY' that'the taking was not willful or in· ' tentional,wall erroneons. . '
3.SAME-!NsTnUCTIQNS. I i , )Vhere the ,evidence
4. 5.
REVIEw,.,..ERR,OR-PnESUflJ;PTION OF PREJUDICE.
AneDroIWlljls instructiOn ispreJ;;umed to be prejudicial,and is not cured py a correqt direction in,another part of the charge. . . "
SAME.
!i.
A general verdict on"an erroneous instruction cannot stand, where there are twotheol'ies on wbich the jury might have foulld it, under oue (}f which ,the instruction waS harmless, while under thei.other it was elTol., siuce error is ,presumed to ,be I?rej\ldicial, .and itcannqt 1:)e said on which tlteory the verdict was' based. MINES AND . an action for taking ote from another's mille, evidence that an unknown person,after the commenc'etnent of the suit, took out ore, was not trespass to have been willfui.
In