Janusis v. Long

• Decision Date: 27 November 1933
• Citation: 284 Mass. 403
• Parties: FRANK JANUSIS v. JOSEPH LONG. SAME v. JOSEPH ADAMSKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 403

FRANK JANUSIS v. JOSEPH LONG. SAME v. JOSEPH ADAMSKI.

Supreme Judicial Court of Massachusetts, Norfolk.

November 27, 1933

December 8, 1932.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.

Alien. Jurisdiction.

Proximate Cause. Negligence, Toward alien. Trespass. Way, Public: trespasser.

There being no statute of the United States or of this Commonwealth governing the precise situation, an alien who has entered this country in violation of immigration laws and, before his deportation has been ordered, is injured by reason of being struck by an automobile negligently driven, is not barred merely by his illegal entry from obtaining redress in the courts of this Commonwealth for such injuries.

Such failure of the alien to comply with the immigration laws and his consequent unlawful presence in this country were not causes contributing to his injury, and therefore did not bar his recovery in an action of tort for such injuries.

The unlawful entry and presence of the alien in this country in the circumstances above described, while wrongs committed against the United

States in its sovereign capacity, did not make him a trespasser on the highway with respect to obligations owed to him by other travellers thereon.

In an action by the alien in the circumstance above described, the jury, in answer to special questions upon two different counts in the declaration, found the defendant guilty both of negligence and also of wilful, wanton or reckless misconduct toward the plaintiff. The trial judge ordered verdicts for the defendant on both counts and reported the action for determination by this court, who, having held that negligence of the defendant entitled the plaintiff to recover, ordered judgment for the plaintiff on the count charging the defendant with negligence, and directed that the verdict for the defendant on the count charging wilful, wanton or reckless misconduct should stand, the counts being for the same cause of action and not cumulative.

TWO ACTIONS OF TORT. Writs dated April 8, 1931. In the Superior Court, the actions were tried together before Brown, J. Material evidence, and special findings by the jury are described in the opinion. The judge ordered verdicts for the defendants on all counts of the declarations and reported the actions for determination by this court.

J. J. Krohn, for the plaintiff. J. T. Connolly, for the defendants.

RUGG, C.J. 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 responsible 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 the 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. 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, and cases collected. Porter v. Freudenberg, [1915] 1 K. B. 857, 873-874. Clarke v. Morey, 10 Johns. 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 , 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, Section 4. In Derinza's Case, 229 Mass. 435 , 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. 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, and cases there reviewed. Fitzpatrick v. International Railway, 252 N.Y. 127.

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. Zakonaite v. Wolf, 226 U.S. 272, 275, 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. Bogni v. Perotti, 224 Mass. 152, 157. Commonwealth v. Higgins, 277 Mass. 191 , 195. Truax v. Corrigan, 257 U.S. 312, 338. 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 permitted pending 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, "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. Nishimura Ekiu v. United States, 142 U.S. 651. United States v. Tod, 297 F. 385. Proceedings to test that right are not subject to all the constitutional guaranties which may be invoked by citizens. United States v. Ju Toy, 198 U.S. 253. 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, 30 F. (2d) 346, 347. Domenici v. Johnson, 10 F. (2d) 433. We are of...