Janusis v. Long

• Decision Date: 29 November 1933
• Parties: JANUSIS v. LONG. SAME v. ADAMSKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 403

188 N.E. 228

JANUSIS

v.LONG.

SAME

v.ADAMSKI.

Supreme Judicial Court of Massachusetts, Norfolk.

Nov. 29, 1933.

Report from Superior Court, Norfolk County; Brown, Judge.

Actions by Frank Janusis against Joseph Long and against Joseph Adamski, in which verdicts were directed for defendants. On report.

Verdict for defendants on first count set aside in each case, and judgment entered for plaintiff. Verdict for defendants on second count to stand in each case.J. J. Krohn, of Boston, for plaintiff.

J. T. Connolly, of Boston, for defendants.

RUGG, Chief Justice.

These are actions of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff, while walking on a public way in this Commonwealth, by reason of being struck by an automobile operated by the defendant Long and owned by the defendant Adamski. The jury found that Adamski was legally responsibl for the acts of Long and no question of law is open on that point. The issues now raised are the same in both cases and they may be treated together. Each of the declarations contained two counts, alleged to be for the same cause of action, the first basing liability on the negligence of the defendant and the second on his wanton, wilful, and reckless misconduct. Among other defences, it was pleaded that at the time of his injuries the plaintiff was illegally within the United States and was subject to deportation, that he was a trespasser, and that the defendants violated no legal duty owed to him. Counsel for the plaintiff in his opening stated that the plaintiff admits ‘that he came in 1929 to the country without complying with the immigration rules, and is in this country at the present time illegally, and at the time of this accident was in illegally, and that since this accident a hearing has been had and he is now subject to deportation.’ At the close of the evidence questions were submitted to the jury, answers to which were to the effect that the plaintiff (1) was in the exercise of due care, (2) was injured in consequence of the negligence of the defendant operating the car, (3) was injured in consequence of the wanton, wilful and reckless misconduct of the same defendant, and (4) sustained damages in the sum of $7,500. The parties thereupon entered into a stipulation as to disposition to be made of the cases in accordance with the principles of law ultimately found to govern the several contentions put forward. Verdicts were directed for the defendants on each count and the cases reported to this court for determination. No argument is now made touching the due care of the plaintiff, actual injury to him by the negligence of the defendants in operating the automobile, and the damages.

The first question to be decided is whether the unlawful presence of the plaintiff in this country is a complete bar to the actions.

It is the policy of the law of this Commonwealth to open her courts to actions or suits by the subjects of friendly foreign nations. Presence within the jurisdiction is not essential to the exercise of such privilege, but it is extended to a foreigner not within our borders. Peabody v. Hamilton, 106 Mass. 217, 220. Even alien enemies may in some circumstances be parties to litigation in our courts. Parkinson v. Wentworth, 11 Mass. 26;Hutchinson v. Brock, 11 Mass. 119;Riddell v. Fuhrman, 233 Mass. 69; Schaffenius v. Goldberg, [1916] 1 K. B. (C. A.) 284. Recognized limitations upon the rights of alien enemies to prosecute proceedings in the courts, especially as plaintiffs, rest upon the principle that aid and comfort ought not to be afforded to a country with which the nation is at war. Riddell v. Fuhrman, 233 Mass. 69, 72, 123 N. E. 237, and cases collected. Porter v. Freudenberg, [1915] 1 K. B. (C. A.) 857, 873, 874; Clarke v. Morey, 10 Johns. (N. Y.) 69, 72. Statutes designed primarily to advance the social welfare of our citizens have been phrased so broadly as to be available to aliens. In Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386,54 L. R. A. 934, 79 Am. St. Rep. 309, it was held that a British subject resident in Ireland might maintain an action in our courts as dependent next of kin to recover damages for the death of her son under the employers' liability act, G. L. (Ter. Ed.) c. 229, § 4. In Derinza's Case, 229 Mass. 435, 118 N. E. 942, benefits of the workmen's compensation act were held to be payable to dependent relatives who were nonresident aliens domiciled in a friendly foreign nation. There is thus no inherent incapacity in our courts to take jurisdiction over a cause of action arising here between parties actually within our territory. Lonergan v. American Railway Express Co., 250 Mass. 30, 40, 144 N. E. 756. Statutes of foreign nations and of sister States founded upon a wrongful act committed in such foreign jurisdiction and causing death will be enforced by our courts in favor of, or for the benefit of, aliens as well as of our own citizens, unless for some special reason found to be contrary to the policy of our law. Jackson v. Anthony, 282 Mass. 540, 545-547, 185 N. E. 389, and cases there reviewed. Fitzpatrick v. International R. Co., 252 N. Y. 127, 169 N. E. 112, 68 A. L. R. 801.

In essence the question is whether our courts ought to refuse to exercise a jurisdiction otherwise proper and complete because of the fact that the person who invokes that jurisdiction has come into the United States in violation of its immigration laws. There is no statute of the United States or of this Commonwealth governing this precise situation. The Congress has complete control over the admission and exclusion of aliens and can make any rules as to their rights and conduct within the country deemed wise or necessary to effectuate a general governmental policy. If it should determine to deny to aliens illegally present within the country the right to sue in State courts, the latter would be bound to carry out that mandate. Fong Yue Ting v. United States, 149 U. S. 698, 706, 13 S. Ct. 1016, 37 L. Ed. 905;Zakonaite v. Wolf, 226 U. S. 272, 275, 33 S. Ct. 31, 57 L. Ed. 218, and cases cited. In the absence of an act of Congress on the subject, it may also be within the legislative competency of the General Court to classify those aliens who may resort to our courts for relief so as to exclude the class to which the plaintiff belongs. Commonwealth v. Libbey, 216 Mass. 356, 358, 359, 103 N. E. 923, 49 L. R. A. (N. S.) 879, Ann. Cas. 1915B, 659; Bogni v. Perotti, 224 Mass. 152, 157, 112 N. E. 853, L. R. A. 1916F, 831;Commonwealth v. Higgins, 277 Mass. 191, 195, 178 N. E. 536, 79 A. L. R. 1304;Truax v. Corrigan, 257 U. S. 312, 338, 42 S. Ct. 124, 66 L. Ed. 254, 27 A. L. R. 375. No statute of either government has declared any policy of this nature.

The defendants urge that our courts have no power to entertain these actions, or that the plaintiff is barred from access to our courts, upon the authority of several decisions. The contention is that, since the plaintiff was illegally in the country, he was not ‘in the jurisdiction’ or ‘legally existent’ or ‘civilly alive.’ That contention is founded on cases where it has been said in substance that it is possible for one to be physically within the boundaries but not within the limits of the jurisdiction of the United States. Those decisions arose respecting the initial right of the alien to enter the United States, and included cases where for convenience an asylum on land had been permittedpending the determination of the right of the alien to come into the country. As was said in United States v. Ju Toy, 198 U. S. 253, 263, 25 S. Ct. 644, 646, 49 L. Ed. 1040, ‘The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate.’ Kaplan v. Tod, 267 U. S. 228, 45 S. Ct. 257, 69 L. Ed. 585;Nishimura Ekiu v. United States, 142 U. S. 651, 12 S. Ct. 336, 35 L. Ed. 1146;United States ex rel. Patton v. Tod (C. C. A.) 297 F. 385. Proceedings to test that right are not subject to all the constitutional guarantees which may be invoked by citizens. United States v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040. It has been said also, in a deportation case, that ‘No domicile in the United States can be established by an alien whose original entry was unlawful.’ Hurst v. Nagle (C. C. A.) 30 F.(2d) 346, 347;Domenici v. Johnson (C. C. A.) 10 F.(2d) 433. We are of opinion that those judicial expressions were confined to the facts before the court and cannot be extended to cases where, without physical let or hindrance, the alien, although in violation of the law, has gained physical admission to the country and is actually living here.

Another aspect of the defendants' contention is that no cause of action arose in favor of the plaintiff because, since he was in this country in violation of the immigration laws, he was in theory of law not here at all, so that no tort committed against him would give rise to a cause of action. In substance and effect this contention is that the illegal presence of the plaintiff has put him beyond the protection of the law and makes him an outlaw without any standing whatever. The term ‘outlaw’ was used in Dudley v. Northampton Street Railway Co., 202 Mass. 443, 447, 89 N. E. 25,23 L. R. A. (N. S.) 561, and in many decisions following it to describe the status, as created by our statutes, of an unregistered automobile on public ways. It has not been used in its narrow or technical sense, but rather as a graphic expression of the illegal position of such an automobile on our public ways as established by statute. Potter v. Gilmore, 282 Mass. 49, 51, 52, 184 N. E. 373. The ancient doctrine as to outlawry is not applicable to the case at bar. ‘A person does not become an outlaw and lose all rights by doing an illegal act.’ National Bank & Loan Co. v. Petrie, 189 U. S. 423, 425, 23...