Peterson v. Neme

• Decision Date: 11 September 1981
• Docket Number: No. 790651,790651
• Citation: 222 Va. 477,281 S.E.2d 869
• Parties: Florida E. PETERSON v. Juliet NEME. Record
• Court: Virginia Supreme Court

Page 869

281 S.E.2d 869

222 Va. 477

Florida E. PETERSON v. Juliet NEME.

Record No. 790651.

Supreme Court of Virginia.

Sept. 11, 1981.

Lowry J. Miller, Arlington (Miller, Miller & Cyron, Alexandria, on brief), for appellant.

Ansley J. Robin, Alexandria (Philip F. Hudock and Associates, P.C., McLean, on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

POFF, Justice.

The principal question raised by this appeal is whether a non-immigrant alien, excluded by federal law from the job market in this country, may recover wage losses as an element of damages ex delicto.

The plaintiff Juliet Neme, a citizen of Colombia, entered the United States in 1970 under a temporary visitor-for-pleasure visa. See 8 U.S.C. § 1101(a)(15) (B) (1976). A non-immigrant alien in her status is forbidden by federal law to work during her stay here. 8 C.F.R. § 214.1(e) (1981). Although her visa expired August 26, 1971, she remained in the United States and accepted employment as a housekeeper in three Maryland homes. On account of those violations of the immigration laws and regulations, she became subject to deportation, 8 U.S.C. §§ 1251(a)(2) and (9) (1976), but proceedings were never commenced against her.

On January 9, 1976, as Neme attempted to walk across Columbia Pike, she was struck by an automobile driven by the defendant Florida E. Peterson. Neme filed a motion for judgment against Peterson, claiming damages "for personal injuries and attendant damages sustained as a result of the defendant's negligence." According to the plaintiff's testimony and a written summary she offered as Exhibit 4, her injuries had caused her to miss 230 days from work and to lose $5,209.40 in wages. Over the defendant's objection, the trial judge admitted the exhibit and other evidence in support of the plaintiff's claim for wages lost prior to trial. He ruled that evidence of the plaintiff's immigration violations was irrelevant to that claim but that, since the plaintiff remained subject to possible deportation, such evidence would be admissible if she elected to claim damages for future wage losses. The plaintiff asserted no such claim, evidence of her immigration status was excluded, and the defendant was not permitted to cross-examine the plaintiff on the subject.

The jury was instructed that it could consider as an element of damages "(a) ny loss of earnings in the past by reason of being unable to work at her calling". The jury returned a verdict for the plaintiff and assessed damages at $18,000.

In her first assignment of error, the defendant challenges the quoted portion of the instruction. The parties agree that Neme was an alien residing unlawfully in this country; that her acceptance of employment was a violation of federal immigration laws and regulations; and that the federal penalty for such a violation, deportation, is civil rather than criminal. The question in dispute is whether an illegal alien guilty of such a violation can recover, as an element of damages in tort, wages lost before trial. ¹

At the threshold, we consider what standing an alien has to sue in American courts. "It has long been settled ... that the term 'person' ... encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside." Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1851, 29 L.Ed.2d 534 (1971). See also Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (invoking the Fourteenth Amendment to strike down administration of a facially lawful licensing ordinance which was being applied to discriminate against lawfully resident Chinese). The equal protection clause extends to lawfully resident aliens who "work for a living in the common occupations of the community", Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915), and a state which excludes such aliens from employment in its classified service violates their rights to equal protection. Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973).

Although the Supreme Court has never had occasion to decide whether aliens unlawfully resident in the United States have standing to sue, lower federal courts and courts in sister states have decided the question in the affirmative. See e. g., Hagl v. Jacob Stern & Sons, Inc., 396 F.Supp. 779 (E.D.Pa.1975); Martinez v. Fox Valley Bus Lines, 17 F.Supp. 576 (N.D.Ill.1936); Janusis v. Long, 284 Mass. 403, 188 N.E. 228 (1933); Montoya v. Gateway Insurance Co., 168 N.J.Super. 100, 401 A.2d 1102 (1979); Torres v. Sierra, 89 N.M. 441, 553 P.2d 721 (1976); Catalanotto v. Palazzolo, 46 Misc.2d 381, 259 N.Y.S.2d 473 (1965); Commercial Standard Fire & Marine Co. v. Galindo, 484 S.W.2d 635 (Tex.Civ.App.1972); Arteaga v. Literski, 83 Wis.2d 128, 265 N.W.2d 148 (1978). We have been unable to find any decision in the negative except the one cited by the defendant, Coules v. Pharris, 212 Wis. 558, 250 N.W. 404 (1933), and that case was expressly overruled in Arteaga v. Literski, supra. Accordingly, we hold that Neme had standing to sue in Virginia's courts.

Conceding the standing question, Peterson argues that "the law in Virginia does not allow a plaintiff to come to court and prove a violation of law or public policy for the purpose of enriching the pocket of the violator." Citing several decisions of this Court, Peterson says that unlawful contracts are unenforceable, and, since the employment contracts underlying Neme's tort claim for wage losses are unlawful, her tort claim is unenforceable.

We have held that a plaintiff cannot recover damages ex contractu when he is guilty of a criminal offense relative to the contract under which he claims, Bowen Elec. Co. v. Foley, 194 Va. 92, 72 S.E.2d 388 (1952); Massie v. Dudley, 173 Va. 42, 3 S.E.2d 176 (1939); Eagle, etc., Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314 (1927), or when the General Assembly has declared that contract void, Kennedy v. Annandale Club, 221 Va. 504, 272 S.E.2d 38 (1980). Although Congress, in the exercise of its plenary power to regulate the rights and obligations of resident aliens, might have criminalized an illegal alien's acceptance of employment, or declared any employment contract into which he entered unenforceable, or required forfeiture of any wages collected under such a contract, Congress did none of these. Hence, the rule in the cases the defendant cites is not germane to the argument she advances.

Alternatively, Peterson contends that federal regulation of the employment of illegal aliens is a matter of high national public policy designed "to protect American labor from unwarranted competition" and that the damage instruction violates that policy.

We recognize that the influx of illegal aliens into the American labor market is a matter of growing national concern. While experience indicates that the jobs they fill are usually seasonal and those spurned by other workers, their employment in times (or areas) of high unemployment deprives citizens and work-eligible aliens of job opportunities. And, when illegal aliens agree to work under substandard conditions for substandard wages, they compete unfairly with workers lawfully employed. We agree with Peterson that the job restriction written into the...