Indus. Comm. v. Rotar
| Decision Date | 15 November 1931 |
| Docket Number | 22905 |
| Citation | 124 Ohio St. 418,179 N.E. 135 |
| Parties | Industrial Commission Of Ohio v. Rotar. |
| Court | Ohio Supreme Court |
Workmen's compensation - Two year limitation - Section 1465-72a General Code - Alien enemy claimant cannot sue, when - Statute of limitations suspended by war - Congress alone may declare war and conclude peace.
1. An alien enemy cannot sue in the courts of a country with which his own country is at war.
2. As to alien enemies, the running of the statute of limitations is suspended by war.
3. The Congress of the United States alone has the power to declare war and to conclude peace.
This action arose as an appeal from a denial of compensation by the Industrial Commission in the claim arising out of the death of Alex Rotar who was killed in the course of his employment with the General Malleable Company at Warren Ohio, on July 28, 1919. Anna Rotar, the widow of the decedent, applied to the Industrial Commission on June 12 1923, for compensation, and her claim was denied. On appeal being taken to the court of common pleas of Trumbull county and trial had, that court directed a verdict for the defendant. The judgment entered on that verdict was reversed by the Court of Appeals.
Further facts are stated in the opinion.
Mr. Gilbert Bettman, attorney general, and Mr. R. R. Zurmehly, for plaintiff in error.
Messrs. Cerrezin & Wilson and Mr. Warren Thomas, for defendant in error.
The controlling question in this case arises out of the application of the facts of the record to Section 1465-72a General Code, which reads as follows:
"In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, application shall have been made to the industrial commission of Ohio or to the employer in the event such employer has elected to pay compensation direct."
It is conceded that Mrs. Rotar's application for compensation is barred under this section unless she can avail herself of the fact that at the time that Rotar was killed she was residing in Austria-Hungary, and the United States and the Austro-Hungarian Monarchy were then in a state of war. During the period subsequent to her marriage to Rotar, up to and during the time covered by the record of the trial herein, Mrs. Rotar has been a resident of the village of Straza, district of Banat. Banat, up to the time of the dissolution of the Austro-Hungarian Monarchy, was a district of Hungary. Upon July 28, 1919, when Rotar was killed, the United States and the dual monarchy were at war. After the Armistice, the Austro-Hungarian Monarchy was dissolved and new governments came into existence. This controversy arises by reason of the fact that the district of Banat and the village of Straza eventually became a part of Jugoslavia, one of the new countries which arose upon the dissolution of the Austro-Hungarian Monarchy.
The trial court directed a verdict in favor of the defendant upon the ground that the claim was filed more than two years after the death of the decedent, by a citizen of a country never at war with the United States, namely Jugoslavia, and hence was barred under Section 1465-72a, General Code. However, Mrs. Rotar filed her application within two years after the war between the United States and Austria-Hungary was terminated. It is upon this ground, and upon the further ground that she was until the termination of the war a national of Hungary, that the Court of Appeals reversed the judgment of the trial court.
It is elementary that, when a state of war exists, an alien enemy cannot prosecute any claim in the courts of a country at war with his country. Irrespective of statute, this is the universally accepted rule. Hanger v. Abbott, 73 U.S. (6 Wall.), 532, 18 L.Ed. 939; Colorado Fuel & Iron Co. v. Industrial Commission, 73 Colo. 579, 216 P. 706. The right of action is merely suspended until the close of the war, at which time it may be asserted by an alien enemy. Ann.Cas., 1917C, 213.
However, the Industrial Commission claims that the Trading with the Enemy Act, which was passed by Congress on October 6, 1917, excludes Mr. Rotar. Section 2 of the act, 40 Stats. at L., 411, reads as follows:
The Industrial Commission contends that in order to come within the purview of this act, a citizen of an enemy country must reside within a country at war with the United States. It is claimed that a citizen of Austria-Hungary residing in Spain during the World War would not have been an enemy of the United States within the meaning of the Alien Enemy Act. However, the definition of "enemy" in this federal statute is expressly limited to apply "for the purposes of such trading [trading with the enemy) and of this Act." The definition of the words "to trade," found in the clause of Section 2 of the act, cannot by any construction be extended to apply to an effort to enforce rights under the Workmen's Compensation Law of Ohio (Section 1465-37 et seq., General Code). Moreover, the act itself specifically provIdes that nothing in the act "shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war." Section 7 (b), 40 Stats. at L., 417. We therefore overrule this contention.
A more serious objection to this proposition is that it is premised upon the assumed fact that Mrs. Rotar became a citizen of Jugoslavia during the war,...
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