Krachanake v. Acme Mfg. Co

• Decision Date: 24 April 1918
• Docket Number: (No. 292.)
• Citation: 95 S.E. 851
• Court: North Carolina Supreme Court
• Parties: KRACHANAKE. v. ACME MFG. CO.

95 S.E. 851

KRACHANAKE.

v.ACME MFG. CO.

(No. 292.)

Supreme Court of North Carolina.

April 24, 1918.

Brown and Walker, JJ., dissenting.

Appeal from Superior Court, New Hanover County; Devin, Judge.

Action by Andrew Krachanake, Jr., by his next friend, Andrew Krachanake, Sr., against the Acme Manufacturing Company. Judgment for plaintiff, and defendant appeals. No error.

This is an action to recover damages for personal injury caused, as alleged, by the negligence of the defendant. The action is brought by Andrew Krachanake, Jr., a minor 10 years of age, by his father, Andrew Krachanake, Sr., as his next friend. The father is a native of Austria-Hungary. He left that country with his family fifteen years ago, and has lived since then two years in Ohio, eight years in Canada, and five years in this state. This country declared war against Austria-Hungary after the verdict was returned in the action, but before the judgment was signed. The defendant contends that the action cannot be maintained because the plaintiffs are alien enemies. This objection was overruled, and the defendant excepted.

The negligence alleged is in permitting dynamite caps or cartridges to be kept in unlocked boxes in an open house near a highway and easy of access to children and other people. There was evidence tending to prove that the plaintiff, Andrew Krachanake, Jr., entered the house and took the caps therefrom and carried them to his home, and, while standing before the fire with one of the caps in his hand, the cap exploded and caused the loss of two of his fingers and serious injury to one of his eyes. The other facts necessary to an understanding of the case will appear in the opinion. There was a motion for judgment of non suit, which was overruled, and the defendant excepted. The jury returned a verdict in favor of plaintiff, and from the judgment rendered thereon the defendant appealed.

J. G. McCormick and Rountree & Davis, all of Wilmington, for appellant.

W. F. Jones and E. K. Bryan, both of Wilmington, for appellee.

ALLEN, J. The first question presented by the appeal is as to the right of the plaintiff, a native of Austria-Hungary, and resident in this state, to maintain an action in our courts, as next friend, to recover damages for personal injury to his infant son. The plaintiff left Hungary fifteen years ago, and since then has lived two years in Ohio, eight years in Canada, and five years in this state.

There is neither allegation nor evidence that he has been guilty of any act or utterance unfriendly to the United States, and, so far as the record discloses, he is a quiet law-abiding laborer. He comes, however, within the classification of an alien enemy, because the country to which he owes allegiance is at war with the United States; and conceding that his sOn, who was seven years old at the time of his injury, stands in the same relation to this government as his father, which does not seem to be the American rule (12 Mod. Am. L. 143; Case of Carl Gundlich, 12 Mod. Am. L. 698), can the action be maintained?

The question is new in this court, but it has been considered so frequently and with such unanimity of opinion in England and America, and the conclusion reached has been so clearly recognized by the President in his proclamation after the declaration of war against Germany and Austria-Hungary, and by Congress in the Trading with the Enemy Act, that but little is left for us to do except to give the result of our investigations.

The statement is often made by the law-writers that an alien enemy cannot sue, and upon the ground that to permit a recovery would strengthen and add to the resources of the hostile government, and correspondingly weaken our government; but when reference is had to the facts it is found that the principle is predicated upon residence in the country at war with ours, and that it has no application to the alien enemy resident here, who may be interned and held as a prisoner of war without the right to apply for the writ of habeas corpus, and whose property may be taken into custody by the government. See note to Daimler Co. v. Continental Tyre Co., Ann. Cas. 1917C, 193, where the authorities are collected.

The test, therefore, of the right to sue, which has been universally adopted, is resi-dence, and not nationality, where the alien enemy is and not what he is. This was substantially declared in 1697 in Wells v. Williams, 1 Lord Raym. 282, and was approved in 1813 in an opinion by Chancellor Kent in Clarke v. Morey, 10 Johns. (N. Y.) 70, and in 1915, in an opinion by Lord Reading, Chief Justice of England, in Porter v. Freudenberg, 1 K. B. 857; Ann. Cas. 1917C, 215. The learning upon the question will be found in these two opinions, and in an interesting article in the Yale Law Journal of December, 1917, written by Mr. Picciotto of the Inner Temple, London, and in the notes to Daimler Co. v. Continental Tyre Co., Ann. Cas. 1917C, 193.

In Clarke v. Morey, the plaintiff, a resident of New York, was a subject of Great Britain. War then existed between that country and the United States, and it was objected that the plaintiff could not prosecute his action in the courts of the state of New York, which is the case presented by this record. Chancellor Kent said in answer to the objection:

"The disability [to sue] is confined to these two cases: (1) Where the right sued for was acquired in actual hostility, as was the case of the ransom bill in Anthon v. Fisher, Doug. 649, note. (2) Where the plaintiff, being an alien enemy, was resident in the enemy's country; such was the form of the plea in George v. Powell, Fortesc. 221, and in Le Bret v. Papillon, 4 East, 502. And such was the case with the persons in whose behalf, and for whose benefit, the suit was brought upon the policy, in Brandon v. Nesbitt, 0 Term Rep. 23.

"It was considered in the common pleas, at Westminster, as a settled point (Heath, J., and Rooke, J., in Sparenburgh v. Bannatyne, 1 Bos. & Pull. 163) that an alien enemy under the king's protection, even if he were a prisoner of war, might sue and be sued. This point had long before received a very solemn decision in the case of Wells v. Williams, 1 Lord Raym. 282, 1 Lutw. 34, S. C. 1 Salk. 46. It was there decided that if the plaintiff came to England before the war, and continued to reside there, by the license and under the protection of the king, he might maintain an action, upon his personal contract; and that if even he came to England after the breaking out of the war, and continued there under the same protection, he might sue upon his bond or contract; and that the distinction was between such an alien enemy and one commorant in his own country. The plea in that case averred that the plaintiff was not only born in France, under the allegiance of the French king, then being an enemy, but that he came to England without any safe conduct, and the plea was held bad on demurrer. It was considered that if the plaintiff came to England in time of peace, and remained there quietly, it amounted to a license; and that if he came over in time of war, and continued without disturbance, a license would be intended * * *

"In the case before us, we are to take it for grauted (for the suit was commenced before the present war) that the plaintiff came to reside here before the war, and no letters of safe conduct were, therefore, requisite, nor any license from the President. The license is implied by law and the usage of nations; if he came here since the war, a license is also implied, and the protection continues until the executive shall think proper to order the plaintiff out of the United States; but no such order is stated or averred. * * * Until such order, the law grants permission to the alien to remain, though his sovereign be at war with us. A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity.

"The right to sue, in such a case, rests on still broader ground than that of a mere municipal provision, for it has been frequently held that the law of nations is part of the common law. By the law of nations, an alien who comes to reside in a foreign country is entitled, so long as he conducts himself peaceably, to continue to reside there, under the public protection; and it requires the express will of the sovereign power to order him away. * * *

"We nil recollect the enlightened and humane provision of Magna Charta, c. 30, on this subject; and in France the ordinance of Charles V, as early as 1370, was dictated with the same magnanimity; for it declared that in case of war foreign merchants had nothing to fear, for they might depart freely with their effects, and if they happened to die in France their goods should descend to their heirs. Henault's Abrege Chron. torn. 1, 338. So all the judges of England resolved, as early as the time of Henry VIII, that if an alien came to England, before the declaration of war, neither his person nor his effects should be seized in consequence of it. Bro. tit. 'Property, ' pl. 38; Jenk. Cent. 201, Case 22. And it has now become the sense and practice of nations, and may be regarded as the public law of Europe (the anomalous and awful case of the present violent power on the continent excepted), that the subjects of the enemy (without confining the rule to merchants), so long as they are permitted to remain in the country, are to be protected in their persons and property, and to be allowed to sue as well as to be sued."

Lord Reading, discussing the same question, says, "It is clear law that the test for this purpose is not nationality, but the place of carrying on the business;" and Mr. Picciotto, "In the Anglo-American system of law the test is now well settled; it is a test not of nationality, but of residence or commercial domicile; not what a man is, but where his business is."

Mr. Picciotto also refers to Schaffenius v....