Cetofonte v. Camden Coke Co. 78 N. J. L. Our ferent situation we are not called upon to determine. conclusion is not inconsistent with the rule laid down in Lanahan v. Lawton, 5 Dick. Ch. Rep. 276; affirmed in this court, 5 Id. 796, in which certain extracts from an alleged deposition not before the court were excluded. The last assignment of error to be considered is that "Catharine Cetofonte, the beneficiary for whom the recovery was sought, was a non-resident alien not entitled to the benefits of the act." The question is sought to be raised by an exception to the refusal to nonsuit. Assuming but not deciding that the question so presented. is properly before us, we think that there is no merit in the defendant's contention. It is true that the proofs showed that Catharine was the wife of the decedent, and that they were citizens of Italy and married there in February, 1905; that eight months later decedent came to the United States, his wife remaining in Italy; that he sent her money from time to time; that he was killed May 27th, 1906. The decedent was therefore an alien, and his wife, whom it seems to be conceded was his sole beneficiary, was a non-resident alien. Section 1 of the act of March 3d, 1848 (Gen. Stat., p. 1188), provides that whenever death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in any such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured. Section 2 provides that such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount received shall be for the exclusive benefit of the widow and next of kin of such deceased person. This suit is brought by the administrator of decedent appointed by the surrogate of Camden county, in this state, the person designated by the statute to bring the action. He is a 49 Vroom. Cetofonte v. Camden Coke Co. mere trustee for the distribution of the fund recovered to the widow and next of kin in the method pointed out by the statute, the fund being no part of the estate. Gottlieb v. North Jersey Street Railway Co., 43 Vroom 480. The cause of action created by the statute enures to the widow and next of kin as a vested right. Cooper v. Shore Electric Co., 34 Id. 558. The question whether an administrator appointed in this state may maintain such action within this state for the death within this state of an alien where the beneficiary was and is a non-resident alien has never been decided in the courts of our state. It was apparently involved but not argued or decided in Polo v. Palisade Construction Co., 46 Vroom 873. There is much conflict in the cases arising in other jurisdictions under somewhat similar statutes, both in this country and England, upon this question. The great weight of authority, however, supports the proposition that non-resident aliens are not excluded from among the beneficiaries. The leading case is Mulhall v. Fallon, 176 Mass. 266. That is followed by Kellyville Coal Co. v. Petraytis, 195 Ill. 215; Szymanski v. Blumenthal, 3 Penn. (Del.), 558; Renlund v. Commodore Mining Co., 89 Minn. 41; Bonthron v. Phoenix Light and Fuel Co., 8 Ariz. 129; Romano v. Capital City Brick Co., 125 Iowa 591; Cleveland, C. C. & St. L. R. R. Co. v. Osgood, 36 Ind. App. 34; Pocahontas Collieries Co. v. Rukas, 104 Va. 278; Alfson v. Bush Company, 182 N. Y. 393; Pittsburg, C. C. & St. L. R. R. Co. v. Naylor, 73 Ohio St. 115; Trotta v. Johnson, 121 Ky. 827; Atchison, Topeka and Santa Fe Railroad Co. v. Fajardo, 74 Kan. 314; Petek v. American Smelting Co., 154 Fed. Rep. 190; Vetaloro v. Perkins, 101 Id. 393; Davidsson v. Hill, 1901, 2 K. B. 606, disapproving Adam v. British & F. S. S. Co., 1898, 2 Q. B. 430. The cases holding the contrary view, i. e., that non-resident aliens are excluded as beneficiaries, are Deni v. Pennsylvania Railroad Co., 181 Pa. 525; Maiorano v. Baltimore and Ohio Railroad Co. 216 Id. 402; McMillan v. Spider Lake Saw Mill and Lumber Co., 115 Wis. 332; Brannigan v. Union Cetofonte v. Camden Coke Co. 78 N. J. L. Gold Mining Co. (Circuit Court), 93 Fed. Rep. 164; Adams v. British & F. S. S. Co., supra, which latter case, as we have pointed out, has been disapproved in England. The reasoning upon which these latter cases rest seems to be that-first, the laws of a country have no intrinsic force proprio vigore beyond its territorial jurisdiction and limits; second, statutes generally apply to those only who owe obedience to the legislature which enacts them, and whose interests it is its duty to protect, and third, it is usual in conceding or granting rights to non-resident aliens to make express mention of them. But we think the better reason, as well as the greater weight of adjudged cases, forbids that non-resident aliens be excluded, by interpretation, from among the beneficiaries designated in the statute. The decedent, though a foreigner, not being an alien enemy, if he had survived the injury, might have maintained an action therefor, if not otherwise specially disabled by law. 2 Cyc. 107. The wife, having a vested right in the cause of action resulting from his death, should not be excluded as a beneficiary, though a non-resident alien. The injury to her may well be the same as if she were a resident. The legislature had power to include non-resident aliens, and they are within the natural and ordinary import of the language employed. Neither the context nor the corrective purpose of the statute suggests any reason for a restrictive interpretation. The act is, in its highest sense, remedial, and is entitled to receive the liberal construction which appertains to such statutes. Haggerty v. Central Railroad Co., 2 Vroom 349; Gottlieb v. North Jersey Street Railway Co., supra. The question of giving a statute intrinsic force proprio vigore beyond the territorial jurisdiction of the state is not involved. The act merely removes a common-law obstacle to recovery for a wrongful act. It merely provides a remedy for a wrong, committed within the state, by those within the state and subject to its authority, to others within its jurisdiction and entitled to its protection, whereby injury is done to still others within or without its jurisdiction. Had the legislature intended to restrict recovery to a resident widow or resident next of kin or both, or to a widow and next 49 Vroom. Cetofonte v. Camden Coke Co. of kin who are citizens of the United States, it would have so said. * * Moreover, our statute has been under consideration in the United States courts. In Dennick v. Central Railroad Co., 103 U. S. 11, in denying a contention that the provisions of the act that "every such action shall be brought by and in the names of the personal representatives of such deceased," limited the right of action to a personal representative appointed in the state, it was said: "The advocates of this view interpolate into the statute what is not there. The statute says the amount recovered shall be for the exclusive benefit of the widow and next of kin. Why not add here, also, by construction, if they reside in the State of New Jersey? It is obvious that nothing in the language of the statute requires such a construction. Indeed, by inference, it is opposed to it. The first section makes the liability of the corporation or person absolute where the death arises from their negligence. Who shall say that it depends upon the appointment of an administrator within the state?" In Hirschkovitz v. Pennsylvania Railroad Co., 138 Fed. Rep. 438, the court, construing our statute, held that a non-resident alien who is next of kin to the person killed is entitled to the benefit of a statute giving a right of action for the death of a person caused by the wrongful act or negligence of another. It will be seen, therefore, that the United States courts, in the construction of our statute, are in harmony with the views here expressed. The judgment of the court below will be affirmed. For affirmance-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, REED, TRENCHARD, PARKER, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, GRAY, DILL, CONGDON, JJ. 16. For reversal-None. Lane v. Pennsylvania R. R. Co. 78 N. J. L. MICHAEL J. LANE, DEFENDANT IN ERROR, v. PENNSYLVANIA RAILROAD COMPANY, PLAINTIFF IN ERROR. ELLEN LANE, DEFENDANT IN ERROR, v. PENNSYLVANIA RAILROAD COMPANY, PLAINTIFF IN ERROR. Argued December 3, 1909-Decided June 20, 1910. 1. In cases of criminal prosecutions. probable cause means reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the accused is guilty of the offence with which he is charged. 2. To constitute probable cause a prosecutor need not necessarily have personal knowledge of the transaction of which he complains; he may rightfully act upon information communicated to him in the ordinary routine of business, where he honestly believes such information to be true and the information is of such a character, and is communicated in such a manner as, under similar circumstances, it would be acted upon by a business man of ordinary prudence. 3. The question of probable cause does not turn upon a consideration of what were the facts of the case, but upon a consideration of what were the facts as they appeared to, or were known by, or were believed to be by the defendant. The controlling fact is not was there actual cause for the prosecution, but had the defendant, at the time of instituting the prosecution, probable cause for so doing. 4. Where goods of the defendant had been stolen, and it appeared by the undisputed testimony that two of the defendant's regularly employed watchmen reported to the defendant that they had seen the plaintiff steal the goods and that he had admitted to them that he had done so, the defendant was warranted in believing that the plaintiff was guilty, and, in the absence of evidence tending to show negligence or bad faith in the employment of the watchmen or that the defendant knew. or had reason to suspect the information to be false, constituted probable cause for suing out a warrant to search the plaintiff's dwelling-house. 5. The question of probable cause does not turn upon the actual commission of the original wrong charged. If the evidence shows sufficient ground for believing it to have been committed, the justification is made out. 6. Where the facts are undisputed and but one inference can be drawn from them, the question of probable cause is one of law for the court alone. and it is erroneous to submit any phase of the question to the determination of the jury. |