
    RIGHTS OF NON-RESIDENT ALIENS.
    [Circuit Court of Jefferson County.]
    J. Oscar Naylor, Administrator, v. The Pittsburgh, Cincinnati & St. Louis Railway Company.
    Decided, May Term, 1904.
    
      Non-resident Aliens — May Enforce Claims for Property Bights — And a Claim for Negligently Causing Death is a Property Bight — Sections 6134 and 6135 Construed — Treaty with Italy.
    
    1. Non-resident aliens are entitled to the benefits conferred by Sections 6134 and 6135 of the Revised Statutes, and an action may be maintained for their benefit, for negligently causing death in this state.
    2. Under the treaty between the United States and the Kingdom of Italy, ratified November 18, 1871, citizens of that kingdom have the same right to enforce a claim in this country respecting property as our own citizens, and a claim in favor of next of kin for negligently causing death in this state is a property right.
    
      Cook, J.; Laubie, J.; and Burrows, J., concur.
    Error to the Court of Common Pleas of Jefferson County.
   The action below was to recover damages for negligently causing the 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 non-resident 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 the plaintiff was dismissed.

The question and the 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 non-resident 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 follows the holding of the Supreme Court of the United States in the case of Alvida Schell et al v. The Youngs town Iron & Steel Company, 4 C. C.—N. S., 172, 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 of the common law regarding the survival of personal actions and the comprehensiveness of our own statute, it would seem that 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 non-resident aliens can derive no benefit from this statute.

Section 6134 is very general:

“Whenever the 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 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 non-resident aliens as beneficiaries?

Section 6135:

“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 can not be maintained for the benefit of non-resident aliens, it seems to us, would be a partial nullification of the statute.

The case of Deni v. Penna. R. R. Co., 181 Pennsylvania State, 525, 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 can not be maintained for the benefit of non-resident aliens.

The syllabus of that case is:

“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 an 'administrator is appointed who prosecutes the suit for the benefit of the beneficiaries; but these distinctions are unimportant.

We are not impressed with the reasoning of the learned judge who delivered the opinion of the court in that case. In it he says:

“Our statute was not intended to confer upon non-resident 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 extra-territorial 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 non-resident 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 can not adopt it. A non-resident defendant is not entitled to the benefit of our exemption laws, although the language of those 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 Collum’s Appeal, 2 Pennypacker, 130, is pertinent. In delivering the opinion of the court he-said: ‘While non-resident 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, 2. Casey, 351, and afterwards quoted approvingly by the present Chief-Justice in McCarthy’s Appeal, 18 P. F. Smith, 217, we do not legislate for men beyond our jurisdiction.’ In one respect, at least, our act of 1855 resembles our exemption laws. It ie 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 ease apply to all non-residents, whether residents of the other states of the Union or of foreign nations. He says: £ ‘ The statute has no extra-territorial 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 & Steel Company, supra. Indeed, the courts of Pennsylvania enforce the statutes of the different states upon this subject (Knight v. West Jersey Railroad Co., 108 Penn. St., 250). Again he says: “We do not legislate for men beyond our jurisdiction. ’ ’ That is not in 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., 268:

“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 such 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 the Pennsylvania ease, on the reasoning therein contained — that nonresident debtors are not entitled to the benefit of our exemption laws under the general terms contained in the statute where there are no express words extending their benefit to non-resident debtors. In Sproul v. McCoy, 26 O. S., 577, it was held:

“The exemptions from execution or sale” allowed to every person who has a family, “under the provisions of the act of April 16, 1873 (70th Ohio Laws, 132), may be claimed by any debtor against whom an action is pending in the courts of this state, whether such debtor be or be not a resident of this state.”

In Mulhall v. Fallon, already referred to, 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. British & Foreign Steamship Company, 79 L. T. (N. S.), 3. Our different relations 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 non-resident aliens (Deni v. Pennsylvania Railroad, 181 Penn. St., 525; Branning v. Union Gold Mining Company, 93 Fed. Rep., 164). But compare Knight v. West Jersey Railroad, 108 Penn St., 250. On the other hand, in several states the right of the non-resident to sue is treated as too clear to need extended argument. Philpot v. Missouri Pacific, Railroad, 85 Mo., 164, 167; Chesapeake, Ohio & Southwestern Railroad v. Higgins, 85 Tenn., 620, 622; Augusta Railway v. Glover, 92 Ga., 132, 142, 143; Luke v. Calhoun County, 52 Ala., 115, 118, 120.
“Under the statute, the action for death without conscious suffering takes the place of an action that could have been brought by the employe himself if the harm had been less, and by his representative if it had been equally great, but the death had been attended with pain (St. 1887, C. 270, Section 1, cl. 3). In the latter case there would be no exception to the right of recovery if the next of kin were non-resident aliens. It would be strange to read an exception into the 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 can not impose duties upon a non-resident alien, but it may confer rights upon him. The St. 1887, C. 270, Section 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 non-resident aliens are entitled to the benefit of our statute. Our relations with foreign countries, like the relation between the 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 had dependent relatives in foreign lands. Can it be supposed that it was the purpose and intention of the Legislature to discriminate against these foreign dependents? If so, it would be an act not 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 his 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 Section 2, Article VI:

“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 III, 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.”

A. C. Lewis, D. M. Gruber, Goldzier, Rogers & Krochlich, for plaintiff in error.

Dunbar & Sweeney, for defendant in error.

The widow and children of Bassillo 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 asking 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 eases to show that such a claim as these next 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 tha-t may be, this treaty was ratified November 18, 1871; and our statute has been amended several times since that date, and it is hardly to be supposed that the General Asembly 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 Sections 6134 and 6135 should include non-resident aliens as well as residents of our own state. ,

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