Bridget Govern v. Philadelphia Reading Railway Company

• Decision Date: 14 December 1914
• Docket Number: No. 430,430
• Citation: 59 L.Ed. 283,235 U.S. 389,35 S.Ct. 127
• Parties: BRIDGET & McGOVERN, Administratrix of the Estate of Peter McGovern, Deceased, Plff. in Err., v. PHILADELPHIA & READING RAILWAY COMPANY
• Court: U.S. Supreme Court

235 U.S. 389

35 S.Ct. 127

59 L.Ed. 283

BRIDGET & McGOVERN, Administratrix of the Estate of Peter McGovern, Deceased, Plff. in Err.,

v PHILADELPHIA & READING RAILWAY COMPANY.

No. 430.

Argued November 30, 1914.

Decided December 14, 1914.

Mr. George Demming for plaintiff in error.

[Argument of Counsel from pages 390-395 intentionally omitted] Messrs. William Clarke Mason and Charles Heebner for defendant in error.

[Argument of Counsel from pages 395-397 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

Action in trespass under the railroad employers' liability act of Congress of April 22, 1908 [35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657], as amended April 5, 1910 [36 Stat. at L. 291, chap. 143, Comp. Stat. 1913, § 1010], brought against the railway company, which, it is alleged, caused by negligence the death of Peter McGovern, one of its employees. Plaintiff was duly appointed administratrix of the estate of McGovern, and brought the action in behalf of his surviving parents, who are citizens of Great Britain and Ireland.

McGovern was not married, was twenty-four years old, and was in the habit of making regular contributions to the support of his parents. The facts of the killing are not now in dispute, the principal question in the case being whether, under the act of Congress, and action can be maintained for the benefit of nonresident aliens.

There were two trials of the action. At the first trial plaintiff obtained a verdict. On motion of the railway company, the court, being of opinion that the action could not be maintained for the benefit of nonresident aliens, granted a new trial. 209 Fed. 975. On the second trial the railway company submitted to the court for its affirmance the following propositions, among others: (1) The parents of McGovern, being nonresident aliens, have no right under the act of Congress for which the action might be maintained, and therefore a verdict should be directed in favor of the company. (2) Under all of the evidence in the case a verdict should be for the company. The court affirmed the propositions and directed a verdict for the company. The jury returned a verdict accordingly, and judgment was duly entered for the railway company. This writ of error was then sued out.

It is suggested rather than urged that the case is not properly here on direct appeal. But the right of direct appeal is based on the ground, among others, that the construction and application of the treaty between the United States and Great Britain and Ireland are involved in the case, the favored-nation clause of which gives the residents and citizens of Great Britain and Ireland the same rights as those of Italy, and that by a treaty between the latter and the United States its citizens are entitled to exactly the same rights as citizens of this country in the courts of this country, although the citizens of Italy may be residing abroad.

In its first opinion in the case the district court discussed at length the question arising upon the treaty, and held adversely to plaintiff. We must presume, therefore, that the court considered the treaties as elements in its decision upon the right of McGovern to recover for the benefit of the parents of the deceased. This court, therefore, has jurisdiction.

We need not, however, discuss the treaties. The view we take of the statute makes such course unnecessary. But see Maiorano v. Baltimore & O. R. Co. infra.

Section 1 of the act of Congress provides that every common carrier by railroad, while engaged in interstate commerce, 'shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee; and if none, then of such employee's parents . . .' the carrier or its agents being negligent or its instrumentalities being defective, due to its negligence. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 501, 58 L. ed. 1062, 1068, 34 Sup. Ct. Rep. 635.

In ruling upon the statute the district court considered that the reasoning in Deni v. Pennsylvania R. Co. 181 Pa. 525, 59 Am. St. Rep. 676, 37 Atl. 558, and in Maiorano v. Baltimore & O. R. Co. 213 U. S. 268, 53 L. ed. 792, 29 Sup. Ct. Rep. 424, applied. In the Deni Case the supreme court of Penn- sylvania, passing upon a statute of the state which permitted certain named relatives to recover damages for death occurring through negligence, held that the statute had no extraterritorial force, and that plaintiff in the action was not within its purview, though its language possibly admitted of the inclusion of nonresident aliens. The Maiorano Case came to this court on writ of error to the supreme court of Pennsylvania, where the doctrine of the Deni Case was repeated and applied. This ruling was simply accepted by this court as the construction of the state statute by the highest court of the state.

We concede some strength of persuasion to the Pennsylvania decision, but to it may be opposed the ruling in other jurisdictions. Mulhall v. Fallon, 176 Mass. 266, 54 L.R.A. 934, 79 Am. St. Rep. 309, 57 N. E. 386; Kellyville Coal Co. v. Petraytis, 195 Ill. 217, 88 Am. St. Rep. 191, 63 N. E. 94; Atchison, T. & S. F. R. Co. v. Fajardo, 74 Kan. 314, 6 L.R.A.(N.S.) 681, 86 Pac. 301. In the latter case and in Mulhall v. Fallon many other cases are reviewed, including English and Canadian cases, and it was concluded that the weight of authority in this country and in England was that alienage is not a condition affecting a recovery under acts such as that involved in the case at bar.

In Patek v. American Smelting & Ref. Co. 21 L.R.A.(N.S.) 273, 83 C. C. A. 284, 154 Fed. 190, the circuit court of appeals for the eighth...