Burgess v. Gilchrist

• Decision Date: 02 December 1941
• Docket Number: (No. 9198)
• Citation: 123 W.Va. 727
• Court: West Virginia Supreme Court
• Parties: James Burgess, Admr., etc. v. James Gilchrist

123 W.Va. 727

James Burgess, Admr., etc.

v.James Gilchrist

(No. 9198)

Supreme Court of Appeals of West Virginia.

Submitted October 14, 1941.

Decided December 2, 1941.

1. Death

The right of action by a personal representative of a resident alien, whose death is alleged to have been the result of the wrongful act, negligence or default of another, is not barred by the fact that the only distributees of such decedent are nonresident aliens.

2. Death

A presidential proclamation, made pursuant to section 5(b) of the Act of Congress of October 6, 1917, as amended, by which the transfer of money, credit and other property from any person in the United States to any national of a named foreign country is prohibited, does not affect the right to maintain an action in this State for the death of a resident alien alleged to have been killed by the wrongful act, negligence or default of another, even where, the only beneficiaries of a recovery in such action are citizens and residents of the foreign country.

3. Appeal and Error

A judgment entered by a trial court on a verdict based on conflicting oral evidence, after a motion to set aside the verdict and award a new trial has been made and overruled, may, on writ of error, be reversed and a new trial awarded, when, in the judgment of the appellate court, the verdict was plainly against the clear preponderance of the evidence.

Error to Circuit Court, Kanawha County.

Action by James Burgess, administrator, etc., against James Gilchrist for the death of plaintiff's intestate in an automobile accident. To review an order of the circuit court which reversed a judgment of the court of common pleas in favor of plaintiff and set aside a jury's verdict and awarded defendant a new trial, plaintiff brings error.

Affirmed.

Lilly & Lilly and Ira P. Hager, for plaintiff in error. Rummel, Blagg & Stone and B. J. Pettigrew, for defendant in error.

Rose, Judge:

This writ of error brings here for review the order of the Circuit Court of Kanawha County which reversed the judgment of the Court of Common Pleas of that county in favor of James Burgess, administrator of the estate of Frank Burgess, deceased, and against James Gilchrist for $7,000.00, set aside the jury's verdict, and awarded the defendant a new trial.

This action is based on the death of the plaintiff's intestate resulting from his having been struck by an automobile owned and driven by the defendant. No demurrer was interposed to the declaration, and the only plea was that of the general issue. At the conclusion of the plaintiff's evidence, a motion to strike was made and overruled. After the introduction of defendant's evidence, and plaintiff's rebuttal, and the instructions of the court, the jury returned its verdict, to set aside which, a motion was made and argued. The record shows that after this argument, the following proceedings were had: "* * * the Court stated that he was of opinion to and would sustain said motion and would set aside said verdict of the jury and grant the defendant a new trial, to which opinion, ruling and action of the Court, the plaintiff, by counsel, at the time objected and excepted; and later, on said day, before an order had been entered in this case, the plaintiff requested and moved that he be permitted to be further heard on said motion of the defendant to set aside the verdict of the jury, and that said motion of the defendant be re-argued and re-submitted to the Court." This motion for re-argument was sustained, and some days later, the motion to set aside the verdict was re-argued and overruled, whereupon judgment was entered on the verdict. Upon writ of error to the circuit court, the judgment of the court of common pleas was reversed and a new trial awarded, and to this action of the circuit court, the plaintiff obtained this writ of error.

Five specific grounds were assigned for setting aside the verdict, but the argument here may be summarized under two heads: (1) That the plaintiff can have no recovery by reason of the fact that the plaintiff's intestate was a citizen of Italy and all his distributees are citizens and residents of that kingdom; and (2) that the verdict is not supported by the evidence and is against the clear preponderance thereof.

The decedent was an unnaturalized Italian who had resided in the United States since 1903, and whose wife and children were, and have ever been, residents and subjects of the Kingdom of Italy. It is insisted that the statute of this state, Code, 55-7-5, creating a right of action for the benefit of the distributees of one whose death resulted from the wrongful act, neglect or default of another, is not intended to benefit non-resident aliens, for whom the state has no responsibility, and that therefore this action cannot be maintained. American statutes authorizing recovery for wrongful death are merely adoptions, or adaptations, of the English "Lord Campbell's Act", enacted by the British Parliament in 1846. Our statute, like its prototype, clearly created a new right of action and operated for the benefit, not of the decedent's estate, but of his distributees. The English courts decided at first that their "Lord Campbell's Act" should not be construed as being for the benefit of nonresident aliens, and that, therefore, no action would lie under that act for the death of a resident alien whose distributees were non-resident aliens. Adam v. British, etc., SS. Co., 2 Q. B. 430. But in the subsequent case of Davidsson v. Hill, 2 K. B. 606, this position was reversed. The doctrine of the Adam case was adopted in some states of the Union on the theory, apparently, that they should follow the construction given the statute in England, whence the American statutes had been derived. Deni v. Pennsylvania R. Co., 181 Pa. 525, 37 A. 558, 59 Am. St. Rep. 676; McMillan v. Spider Lake Saw- Mill & Lumber Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947; Cleveland, etc., Ry. Co. v. Osgood (Ind. App.), 70 N. E. 839. A later Pennsylvania case so holding was affirmed by the Supreme Court of the United States in Maiorano v. Baltimore & Ohio R. Co., 213 U. S. 268, 29 S. Ct. 424, 53 L. Ed. 792. But most state courts have refused to follow this harsh doctrine. Luke v. Calhoun County, 52 Ala. 115; Ferrara v. Auric Mining Co., 43 Colo. 496, 95 P. 952, 14 L. R. A. (N. S.) 964; Szymanski v. Blumenthal, 3 Pennewill (Del.) 558, 52 A. 347; Augusta Railway Co. v. Glover, 92 Ga. 132, 18 S. E. 406; Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N. E. 94, 88 Am. St. Rep. 191; Romano v. Capital City Brick & Pipe Co., 125 Iowa 591, 101 N. W. 437, 63 L. R. A. 132, 106 Am. St. Rep. 323, 2 Ann. Cas. 678; Atchison T. & S. F. Ry. Co. v. Fajardo, 74 Kan. 314, 86 P. 301, 6 L. R. A. (N. S.) 681; Trotta's Admr. v. Johnson, 121 Ky. 827, 90 S. W. 540, 12 Ann. Cas. 222; Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309; Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N. W. 1057, 99 Am. St. Rep. 534; Alfson v. Bush Company, Ltd., 182 N. Y. 393, 75 N. E. 230; Pittsburgh, C. C. & St. L. Ry. Co. v. Naylor, 73 Ohio St. 115, 76 N. E. 505, 3 L. R. A. (N. S.) 473, 112 Am. St. Rep. 701; Chesapeake, O. & S. W. R. Co. v. Higgins, 85 Tenn. 620, 4 S. W. 47; Anustasakas v. International Contract Company, 51 Wash. 119, 98 P. 93, 21 L. R. A. (N. S.) 267, 130 Am. St. Rep. 1089.

An influential case was Mulhall v. Fallon, supra, the opinion in which was written by Chief Justice Holmes. The opinion says: "In all cases the statute has the interest of the employees in mind. It is on their account that an action is given to the widow or next of kin. Whether the action is to be brought by them or by the administrator, the sum to be recovered is to be assessed with reference to the degree of culpability of the employer or negligent person. In other words, it is primarily a penalty for the protection of the life of a workman in this State. We cannot think that workmen were intended to be less protected if their mothers happen to live abroad, or less protected against sudden than against lingering death. In view of the very large amount of foreign labor employed in this State, we cannot believe that so large an exception was silently left to be read in." In McGovern v. Philadelphia & Reading Ry. Co., 235 U. S. 389, 35 S. Ct. Rep. 127, 129, 59 L. Ed. 283, the Supreme Court of the United States accepted this doctrine, basing its conclusions largely on Mulhall v Fallon, supra, and distinguishing the instant case from Maiorano v. Baltimore & Ohio R. Co., supra, by the explanation that "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."

It is also urged that by reason of Presidential Executive Order No. 8785, promulgated June 14, 1941, forbidding the transfer of funds, property or credit from the United States to foreign countries, except pursuant to a permit of the Treasury Department, makes a recovery in this case futile, and therefore, stands as a bar against recovery. This conclusion is a non sequitur. Mere temporary impossibility of disbursement to the beneficiaries does not operate to prevent recovery by the administrator.

The clear weight of authority, therefore, is against the ruling asked for by the defendant. We do not feel warranted in adopting the minor and vanishing doctrine. Moreover, the defenses that there are no persons in existence legally capable of taking the benefits of the recovery, and that the presidential proclamation operated to bar the action, were not pleaded. Even if valid, these defenses were affirmative and observance of the strict rules of pleading would require special pleas to assert them. See Wilder v. Charleston Transit Co., 120 W. Va. 319, 197 S. E. 814, 117 A. L. R. 948

No other error of law is...