Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1901

Signor Carignani to Mr. Hay.

[Translation.]

Embassy of His Majesty the King of Italy,
Washington, D. C. , August 16, 1901 .

Mr. Secretary of State: In the action brought against the Auric Mining Company, of Hinsdale County, Colo., by Mrs. Fenice Ferrara, for indemnity by reason of the death of her husband, an employee of the said company, caused by a disaster in the mines, the district court of Pueblo, Colo., is said to have decided that the plaintiff had no right to sue in justice, owing to her quality of resident and subject of the Kingdom of Italy.

This decision seems to be in contradiction of the treaty of February 26, 1871, between Italy and the United States, and I have the honor to submit to the high judgment of your excellency a copy (which, I pray, be eventually returned) of the proceedings and of the decision in said case, accompanied by a letter of Mr. M. J. Galligan, counsel of Mrs. Ferrara, for such measures as the Federal Government, custodian of and responsible for the international compacts, will see fit to take.

While asking that you will in the meanwhile acknowledge the receipt of this note, I renew, etc.,

Carignani.

[Inclosure.]

State of Colorado, County of Hinsdale, ss:

Fenice Ferrara, plaintiff,	}	In the district court thereof.
v.
The Auric Mining Company, a corporation.

amended complaint.

Comes now the above-named plaintiff, Fenice Ferrara, and, leave of court being first had and obtained, files this her amended complaint, and alleges:

(1) That the defendant is, and at all times herein mentioned was, a corporation organized and existing under and by virtue of the laws of the State of Colorado, and doing business therein.

(2) That the plaintiff, Fenice Ferrara, is the wife and widow of Pietro Ferrara, deceased.

(3) That on or about the 26th day of June, A. D. 1897, the above-named defendant, the Auric Mining Company, was operating a mine at or near Henson, in Hinsdale County, Colo.; that in such operation they were operating the Ute mining claim, the Ulay Lode mining claim, and other lode mining claims, all being situated in Galena mining district, said county and State. That in the operation of such mines they employed several men.

(4) That on or about the 26th day of June, A. D. 1897, and for about twenty days prior thereto, said Pietro Ferrara was in the employ of said defendant as a miner underground in said Ulay mine, which was then and there being operated by said defendant as aforesaid.

(5) That the said Pietro Ferrara, in the regular course of his employment as such miner for the said defendant, was at work in said mine as an employee of the said defendant.

(6) That it was the duty of the said defendant to use reasonable and ordinary care in providing a reasonably safe and suitable place for the said Pietro Ferrara to work in, in the regular line of his duty, but that the said defendant, negligently disregarding its duty, and disregarding the rights of the said Pietro Ferrara, carelessly and negligently failed and neglected to use reasonable and ordinary care in timbering the mine where the said Pietro Ferrara was at work as such employee in the regular line of his duty, and by reason of the carelessness and negligence of said defendant, and without any fault or negligence of the said Pietro Ferrara, a large rock fell from the roof or foot wall of said mine and struck the said Pietro Ferrara with great force and violence, inflicting severe and fatal injuries upon him, from the effects of which he died shortly after, That the said Pietro Ferrara received said injuries, as aforesaid, on the said 26th day of June, A. D. 1897.

(7) That said Pietro Ferrara was only working in said mine for a short time prior to receiving said injury and was wholly unaware of the dangerous and unsafe condition of said mine, and did not have the knowledge, or equal means of knowledge, of the dangerous condition of said mine which the said defendant had.

(8) That the said Ferrara had been at work in the said Ulay mine for the period of twenty days prior to the date of such injury.

(9) That the said defendant knew, or, by the use of ordinary care, might have known, of the unsafe and dangerous condition of said mine which resulted in said injury to the said Pietro Ferrara.

(10) That it was the duty of the defendant to use reasonable and ordinary care in providing a reasonably safe and suitable place for said Pietro Ferrara to work in, and to use reasonable and ordinary care in furnishing timber and timbering said mine so as to keep it in a reasonably safe condition for said Pietro Ferrara to work therein; but that said defendant negligently failed to do so and negligently failed to keep said mine in good repair, and by reason of such negligence the said Pietro Ferrara received said injuries, and it was no part of the duty of said Pietro Ferrara as such employee to see after the timbering and repairing said mine.

(11) That said Ferrara was employed at about the end of a drift in said mine, the exact location of which is to plaintiff unknown. That blasts had been discharged, and about one hour thereafter the superintendent of said mine, acting under and by authority of said defendant, ordered the said Pietro Ferrara to commence work therein in the way, to wit, of drilling for new blasts. That no precaution had been taken by said superintendent against falling rock, although said superintendent well knew the dangerous condition of the spot where he had ordered the said Pietro Ferrara to commence work.

(12) That the said Pietro Ferrara left surviving him this plaintiff, who was his wife. That at the time of his death, caused by such injuries as aforesaid, he was 30 years old, and in good health and able to work and earn money, and was, and for a long time prior to his said injuries was, earning the sum of $3 per day. That the said plaintiff relied upon said wages of the said Pietro Ferrara for sustenance, having no other assets, and is now destitute by reason of the death of the said Pietro Ferrara.

(13) That, by reason of the premises, said plaintiff has been damaged in the sum of $5,000.

Wherefore the plaintiff demands judgment against the said defendant, the Auric Mining Company, for the sum of $5,000 and the costs of this action.

M. J. Galligan,

Bordwell & Kohn,
Attorneys for Plaintiff.

State of Colorado, County of Hinsdale, ss:

G. D. Bordwell, being first duly sworn, upon oath deposes and says that he is one of the attorneys for the plaintiff in the above entitled cause; that he has read the above and foregoing amended complaint, knows its contents, and that the matters and things therein stated are true, as he verily believes; that he makes this verification for and on behalf of the plaintiff, for the reason that the said plaintiff is not a resident of Hinsdale County, Colo., and now absent therefrom.

G. D. Bordwell.

Subscribed and sworn to before me this 12th day of January, 1899.

[seal.]

James C. Gates.

Filed January 18, 1899. James C. Gates, clerk.

Fenice Ferrara, plaintiff,	}	Amendment to defendant’s answer.
v.
The Auric Mining Company, a corporation, defendant.

Comes now the defendant, leave of court having been first had and obtained, and files this its amendment to its original answer herewith, and for a further and fourth defense to the plaintiff’s amended complaint says:

Defendant is informed and believes, and so alleges, that the plaintiff is, and at all times heretofore has been, a resident citizen and subject of the Kingdom of Italy, and that the plaintiff is not now, and never has been at any time, a resident or citizen of the State of. Colorado or of the United States of America, and is not entitled to bring or prosecute this action in any courts of the State of Colorado.

Wherefore the defendant prays that it may be hence dismissed, and that it recover its costs laid out and expended in this behalf.

Wolcott & Vaile,

H. H. Dunham,
Attorneys of Defendant.

Said court granted the said motion and allowed the said amendment to be filed over the objection of the said plaintiff, and dismissed the said jury and abandoned the then trial of the said cause before the said jury.

That afterwards the said plaintiff filed a demurrer, which said demurrer is in words and figures as follows, to wit:

In the district court.

State of Colorado, County of Pueblo, ss.

Fenice Ferrara, plaintiff,	}	Demurrer.
v.
The Auric Mining Company, defendant.

Now comes the plaintiff and demurs to the amendment to defendant’s answer filed herein, on the ground that said amendment does not contain facts sufficient to constitute a defense to plaintiff’s complaint of cause of action.

M. J. Galligan,
Attorney for Plaintiff.

That afterwards the said defendant moved to strike the said demurrer from the files, which said motion was sustained by the court over the objection of the said plaintiff, and the said plaintiff then and there moved to have the said action set down for hearing and trial, and the said court overruled the said motion, to which ruling due exception was taken by the said plaintiff.

That thereupon the said defendant, by its attorney, moved for judgment upon the pleadings, for the reason that no reply had been filed to the said amendment to the defendant’s answer, the said motion being oral and without any previous notice to plaintiff or her attorney. And the court sustained said motion and rendered judgment in favor of the said defendant for costs of suit, when the record in this case shows that the plaintiff was allowed to prosecute without the payment of costs as a poor person, and dismissed the said action at the costs of said plaintiff as aforesaid.

That the said judgment dismissing the said action and denying the said plaintiff the right to prosecute this action, for the alleged reason that the said plaintiff is and has been a resident and subject of the Kingdom of Italy, and that the plaintiff is now and never has been at any time a resident or citizen of the State of Colorado, of the United States of America, and is not entitled to bring or prosecute this action in any of the courts of the State of Colorado, as alleged in the said amendment to defendant’s answer, is in violation of the treaty of 1871 between the Federal Government of the United States of America and the Kingdom of Italy, which said treaty provides as follows:

“Article III. 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 upon the natives.

“They shall, however, be exempt in their respective territories from compulsory military service, either on land or sea, in the regular forces, or in the national guard, or in the militia. They shall likewise be exempt from any contribution whatever, in kind or in money, to be levied in compensation for personal services.

“Article XXIII. The citizens of either party shall have free access to the courts of justice in order to maintain and defend their own rights, without any other conditions, restrictions, or taxes than such as are imposed upon the natives; they shall, therefore, be free to employ, in defense of their rights, such advocates, solicitors, notaries, agents, and factors as they may judge proper in all their trials at law; and such citizens or agents shall have free opportunity to be present at the decisions and sentences of the tribunals in all cases which may concern them, and likewise at the taking of all examinations and evidences which may be exhibited in the said trials.”

Which said treaty and said provisions are in full force and effect.

And the court erred in the premises, as aforesaid, and a new trial should be granted the plaintiff in accordance with the provisions of the said treaty, as the said court was bound to take judicial notice of the provisions of the said treaty.

II.

The judgment of the said court is against law.

M. J. Galligan,
Attorney for Plaintiff.

Filed in the office of the clerk of the district court this 11th day of May, 1901. L. B. Strait, clerk, by E. F. Nichols, deputy.

And afterwards: That on the 29th day of June, 1901, the same being one of the regular days of the May, 1901, term of said court, there was among the proceedings had and done and entered of record the following order, which said order is in words and figures as follows, to wit:

Fenice Ferrara	}
v.
The Auric Mining Company.

On this day it is ordered that the plaintiff’s motion for a new trial herein be and the same is hereby overruled and denied. To which ruling of the court the said plaintiff excepts.