Heiler v. Goodman's Motor Express Van & Storage Co.

• Decision Date: 18 November 1918
• Docket Number: No. 49.,49.
• Citation: 105 A. 233,92 N.J.Law 415
• Parties: HEILER v. GOODMAN'S MOTOR EXPRESS VAN & STORAGE CO.
• Court: New Jersey Supreme Court

105 A. 233

92 N.J.Law 415

HEILER

v. GOODMAN'S MOTOR EXPRESS VAN & STORAGE CO.

No. 49.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1918.

(Syllalus by the Court.)

Appeal from Supreme Court.

Suit by William J. Heiler against the Goodman's Motor Express Van & Storage Company. Judgment of nonsuit, and plaintiff appeals. Reversed, and case remanded for a venire de novo.

John Winans, of New York City, for appellant.

Randolph Perkins, of Jersey City, for appellee.

PARKER, J. The suit was to recover damages for personal injuries claimed to have been sustained by the plaintiff below by reason of a collision between a motorcycle on which plaintiff was riding and an automobile van belonging to and operated by a servant or servants of the defendant. At the trial the plaintiff was nonsuited on the sole ground that he was an alien enemy of the United States, and was therefore barred from maintaining an action. This is urged as error, and also that the court refused the application of the plaintiff, when the question of nonsuit was under consideration and argument, to withdraw a juror and award a mistrial.

The alienage of the plaintiff was not made to appear until the latter part of his cross-examination, and it is worth while to quote, at this point, the exact testimony in that regard:

"Q. You say—where were you born, Mr. Heiler? A. What's that? Q. Where were you born? A. Germany. Q. When? A. August 16, 1895. Q. Are you a naturalized American citizen? A. No, sir. Q. So you were born in Germany? A. Yes. sir. Q. You are not an American citizen? A. No, sir."

This seems to be everything in the testimony upon the point. The alienage and enmity of plaintiff was not in any manner set up in the pleadings, nor was any application made at the trial to amend the answer or place this defense upon the record by a special motion as provided by the Practice Act of 1912 (Act March 28, 1912 [P. L. 377]). The motion was made as a motion to nonsuit, purely incidental to the progress of the trial upon a complete record.

The alleged error of the court in refusing to withdraw a juror may be dismissed in a few words, and, indeed, is in no way essential to the determination of the main question now involved, although it is worth while to advert to it as a matter of practice. The general rule, as laid down recently by this court, is that the refusal to withdraw a juror and thereby produce a mistrial is a matter that rests in the discretion of the trial judge, and is not assignable for error. Bradley v. Cleary Co., 86 N.J.Law 338, 90 Atl. 1015. The same rule obtains in New York, where it has been said by the Court of Appeals of that state that "leave to withdraw a juror is a favor, not a right, and has always been held to rest within the sound discretion of the court." Cattano v. Metropolitan Street Railway Co., 173 N. Y. 565, 572, 66 N. E. 563, 565; Chesebrough v. Conover, 140 N. Y. 382, 388, 35 N. E. 633, 635. Conceding for present purposes that exceptional circumstances might remove the case from the operation of this rule, we find nothing in the case at bar to justify such a course.

With respect to the granting of the motion to nonsuit, however, we consider that there was clear error, and this for two reasons: First, because the issue was not raised upon the pleadings; and, secondly, and more fundamentally, because plaintiff was not shown to be within the class of alien enemies barred from maintaining an action, either by the rules of the common law, or under the recent statutes of Congress applicable to that subject.

The fundamental rule as laid down in the books is that no action can be maintained, either by or in favor of an alien enemy. Brandon v. Nesbit, 6 T. R. 23, 2 E. R. C. 649. But the rule seems to be equally well settled that this defense must be set up by a special plea. The authorities are somewhat confused as to whether the plea at common law was to be classified as a plea in abatement or a plea in bar, but, for present purposes, this is immaterial. 1 Chitty, Pleading, pp. 481, 483, 514. The precision required in such a plea is indicated by our early case of Coxe v. Gulick, 10 N.J.Law 328, where the plaintiff was an alien, but not an enemy, and as such was disqualified by the existing law from holding real estate in this state. A leading ease is Burnside v. Matthews, 54 N. Y. 78, where the court intimated that if the defense had been properly set up, it would have prevailed, but refused to recognize it because it was not pleaded. Similar cases in Massachusetts, with annotations, are Sewall v. Lee, 9 Mass. 363, Martin v. Woods, 9 Mass. 377, and cases in the footnote to page 366. In the English case of Ex parte Bonssmaker, 13 Vesey, 71, 33 English Reprint, 221, Lord Chancellor Erskine remarked that a court of law would not take notice of the objection (of alien enemy) without a plea, and even in chancery it was held that there was no presumption in favor of the plea, and that the facts must be strictly set up. Burk v. Brown, 2 Atkins, 397. Under the Practice Act of 1912 and rules germane thereto, it would seem that this defense may be made by a motion substituted for plea in abatement (Rule 56 of 1903) or by answer if considered as a plea in bar at common law. The precise form in which the defense is put upon the record is not so material as that it shall be squarely placed upon the record and with reasonable precision corresponding to that required at common law. As already stated, this was not done; and the defense was therefore not maintainable as a matter of practice.

But there is a broader and more fundamental reason for holding that there was error in denying the plaintiff his right to prosecute the action, viz. that he was not shown to be within the class to which the rule is applicable. That rule, as just quoted from the English ruling cases, uses the words "alien enemy," but does not undertake to define or limit the term, although it has been most carefully defined in the cases, both in England and in this country. In the leading case of Wells v. Williams, 1 Lord Raymond, 282, defendant pleaded that the plaintiff was an alien enemy, and came into England without a safe conduct, and concluded in bar, to which the plaintiff replied that at the time of the making of the bond sued on, plaintiff was and still is in England by the license and under the protection of the king. To this the defendant demurred, but the court held that one who comes into the country in time of peace without a safe conduct and lives here thereafter under the protection of the king, and the war afterwards begins between the two nations, may still maintain an action. The ease is also reported in 1 Salkeld, 46, and Lut. 34.

In 1793 the case of Daubigny v. Davallon was decided by the Court of Exchequer, and, without going into the precise issues of the case, it is sufficient to quote from the deliverance by Lord Chief Baron Macdonald in 2 Anstruther at page 467:

"However the law may originally have stood, it is now settled that alien friends have a right to institute suits in the king's courts for the recovery of their rights; they come into this country, either as was formerly the case, with a letter of safe conduct, or under a tacit permission which presumes that authority. So, if they continue to reside here after a war breaks out between the two countries, they remain under the benefit of that protection, and are impliedly temporary subjects of this kingdom. But if the right of suing for redress of the injuries they received were not allowed them, the protection afforded would be incomplete and merely nominal."

It is worthy of note that Judge Story, in his...