163 F. 124 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1908
The plaintiffs are citizens and residents of Italy and the subject of its King, and bring suit for damages for the death of their son, who was killed, as they allege, by the negligence of the defendant company by whom he was employed. The accident by which he lost his life occurred in Pennsylvania, and suit is brought on the statutes of that state, giving a right of action to the parents of the deceased in such cases. Act April 15, 1851, § 19 (P. L. 674); Act April 26, 1855, § 1 (P. L. 309). It is contended by the defendants that the plaintiffs, being nonresident aliens, have no-right to sue, and it is upon this that the demurrer proceeds. It was decided by the Supreme Court of Pennsylvania, in Deni v. Pennsylvania Railroad, 181 Pa. 525, 37 Atl. 558, 59 Am. St. Rep. 676, and again in Maiorano v. Baltimore & Ohio R. R., 216 Pa. 402, 65 Atl. 1077, 116 Am. St. Rep. 778., that nonresident aliens are not entitled to the benefit of this legislation, not being within its purview, and have no standing in consequence to maintain an action founded upon it. The same construction is put upon similar statutes in other jurisdictions. Brannigan v. Union Gold Mining Co. (C. C.) 93 Fed. 164; McMillan v. Spider Lake Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947; Roberts v. Great Northern Railway (C. C.) 161 Fed. 239; Adams v. British Steamship Co., 2 Q. B.
It is contended as to this that the plaintiffs are protected by the existing treaty between the United States and Italy of Bebruary 26, 187,1 (Í7 Stat. 845), which provides:
“Art. 3. 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.”
“Art. 23. 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 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.”
There was no reference to this treaty in the Deni or the Zeiger Case; although there was in the Maiorano, where it was decided to have no effect; the court holding that, while the treaty may in terms include the entire citizenship of Italy, it obviously is available only to those who, either with respect to their persons or property, are within the jurisdiction of the United States. This is a federal question, and the decision of the state court is not controlling; but upon an independent consideration of it, the same conclusion is to be reached.
The rights guaranteed to the citizens of Italy by the one article (3) are constant protection and security for their persons and property, as to which they are to enjoy the same rights and privileges as are or shall be guaranteed to natives. The other article (23) merely preserves the right to resort to the courts to maintain and defend their rights, without other conditions or restrictions than are imposed on natives. But in so guaranteeing protection and security to the persons and property of citizens of Italy, it is manifest that this can oniy refer to the persons and property of such citizens when within the states and territories of this country. There certainly is no in
There are authorities, no doubt, which hold otherwise as to the effect of such a treaty (Railroad v. Naylor, 73 Ohio St. 115, 76 N. E. 505, 3 L. R. A. [N. S.] 473, 112 Am. St. Rep. 701; Bahuaud v. Bize [C. C.] 105 Fed. 485; and possibly New Orleans v. Abbagnato, 62 Fed. 240, 10 C. C. A. 361, 26 L. R. A. 329). But not, as it seems to me, with reason.
Judgment is therefore directed to be entered on the demurrer in favor of the defendants, with costs. N
Specially assigned.