Romano v. Capital City Brick & Pipe Co.

Decision Date17 November 1904
Citation101 N.W. 437,125 Iowa 591
PartiesROMANO v. CAPITAL CITY BRICK & PIPE CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action to recover damages for the death of intestate, Natale Chiesa, occasioned by the negligence of defendant, in whose employment he was working at the time of receiving the injury which caused his death. The defense interposed was that Natale Chiesa was unmarried and without issue, and that his next of kin was his mother, who is an alien residing in Italy, and that he left no estate to be administered upon, wherefore the letters of administration issued to the plaintiff were without authority. By way of reply, plaintiff alleged that intestate left, as his only heir, his mother, a citizen and resident of Italy, and that the mother is entitled to the proceeds of the estate by reason of the provision of articles 22 and 23 of the treaty of commerce and navigation between Italy and the United States (17 Stat. 856), concluded in 1871, which treaty continues in full force and effect between the respective countries. To this reply a demurrer was interposed on the ground that it shows upon its face that the suit is brought by an administrator to recover for an injury to the person of intestate resulting in death, and that such action does not survive to his mother, who, as his sole heir, does not reside here, and is now an alien, and that this action cannot be maintained by an administrator for her, and, further, that the treaty pleaded does not include or provide for the survival of an action of this character for the benefit of a nonresident alien. The demurrer was sustained, and, plaintiff electing to stand upon his pleadings, the court dismissed the case and entered judgment against the plaintiff for costs, from which judgment plaintiff appeals. Reversed.Miller, Wallingford & De Graff, for appellant.

Ryan, Ryan & Ryan, for appellee.

McCLAIN, J.

It is conceded by counsel on each side that the question presented on this appeal is whether an administrator appointed in Iowa may maintain an action in this state for an injury resulting in death to a resident alien, when it affirmatively appears that intestate's sole heir was at the time of said death, and still is, a nonresident alien.

Counsel for appellee contend that the statutory provision (Code, § 3443) that “all causes of action shall survive and may be brought, notwithstanding the death of the person entitled or liable to the same,” should not be given extraterritorial effect, and should be so construed as not to confer a benefit upon nonresident aliens. It seems to us, however, that they misapprehend the scope of the generally recognized doctrine that statutes have effect only within the jurisdiction of the sovereign power by which they are enacted. It is not claimed that this statute is to have any force and effect in Italy. The accident happened in Iowa; the person injured, as well as the defendant, is a resident of Iowa; and the wrong done by defendant, if any, was done in Iowa. It is difficult, therefore, to see how it can be urged that any question of extraterritoriality arises. The contention for appellee seems rather to be that a nonresident alien is not to be regarded as a person entitled to the benefits of the Iowa statute, although he comes within the plain terms of its provisions. The argument recalls the theory of the old Roman law that laws are personal rather than territorial in their application, for, under the doctrine of the Roman civil law, a Roman citizen only could assert the rights and avail himself of the remedies recognized by that system, and aliens, even though they might be residents, must resort to a wholly distinct jurisdiction to secure redress for wrongs which they may have suffered. Muirhead, Roman Law, § 25. It is unnecessary to say that the theory of the common law in this respect is wholly different. Under the common-law theory, laws are territorial in their operation; and, while a sovereign may legislate with reference to its subjects outside of its territorial jurisdiction, general legislation is assumed to apply to all persons residing, all property situated, and all rights arising within its territorial jurisdiction, regardless of the status of the parties, as being citizens or aliens. As to the rights arising or recognized within the jurisdiction, a nonresident alien may maintain suits in the courts without any special statutory authority. Knight v. R. Co., 108 Pa. 250, 56 Am. Rep. 200;Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N. E. 94, 88 Am. St. Rep. 191;Vetaloro v. Perkins (C. C.) 101 Fed. 393. It would certainly strike the profession in this state as most extraordinary and unprecedented if we should hold that a nonresident alien could not, in the absence of express statutory authority, avail himself of a statutory remedy in our courts, such as that of an attachment or a garnishment proceeding.

A few cases are cited in support of the general proposition that statutes are to be construed as applicable only in favor of persons within the jurisdiction. See, for example, Jeffreys v. Boosey, 4 H. L. Cas. 815; Colquhoun v. Heddon, 25 Q. B. D. 129; Collom's Appeal, 2 Penny. (Pa.) 130. But without going into a discussion of these and similar cases for the purpose of showing that they cannot be regarded as supporting the broad proposition that general statutory rights and remedies are not available to nonresident aliens, it is sufficient to say that no such general rule of construction has been adopted in jurisdictions where the common law prevails, nor, indeed, in those in which the civil law is recognized, for even in civillaw jurisdictions the principle of territoriality as opposed to that of personality of laws is now accepted.

Nevertheless the misconception arising from the assumption of a general rule that statutes conferring benefits are to be construed as not extending to nonresident aliens has in some jurisdictions been applied in solving the identical question which we now have before us; that is, the question whether a statute giving a remedy for an injury causing death is available for the benefit of nonresident aliens. Thus in Deni v. Pa. R. Co., 181 Pa. 525, 37 Atl. 558, 59 Am. St. Rep. 676, it is said that “while it is possible that the language of the statute may admit of a construction which would include nonresident alien husbands, widows, children, and parents of the deceased, it is a construction so obviously opposed to the spirit and policy of the statute that we cannot adopt it.” And the reasoning of that case is followed in Brannigan v. Union Gold Mining Co. (C. C.) 93 Fed. 164, by Hallett, District Judge, charging the jury in a similar case arising under the laws of Colorado. Likewise, in a recent case in Wisconsin (McMillan v. Spider Lake Sawmill Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947) the doctrine that the laws of one country can have no extrinsic force, except within the territorial limits and jurisdiction of that country, is invoked to support the conclusion that the statute giving a remedy to the relatives of one who is instantly killed is not available to nonresident aliens. In Adam v. British & Foreign S. S. Co. (1898) 2 Q. B. D. 430, the same conclusion is reached under the English fatal accidents acts, the first of which was Lord Campbell's act (9 & 10 Vict., c. 93); and it was held, apparently by one judge, that a nonresident alien relative could not avail himself of the statutory remedy. In his opinion, however, the judge does not refer to two earlier decisions of the English courts in which a contrary conclusion was reached. See The Guldfaxe, L. R. 2 A. & E. 325, and The Explorer, L. R. 3 A. & E. 289, in which Sir Robert Phillimore expressed, though with some doubt, the conclusion that a suit by a nonresident alien under Lord Campbell's act could be maintained in the British Admiralty Court. It is suggested elsewhere that the two cases just referred to were overruled by the House of Lords in Seward v. The Owner of the Vera Cruz, L. R. 10 App. Cas. 59. But that is not in accordance with the fact. The only point decided by the House of Lords pertinent to the question was that the Court of Admiralty, under a statute giving it jurisdiction over any claim for damages done by any ship, did not have jurisdiction in rem over claims for damages for loss of life under Lord Campbell's act; and nothing said in that case is conclusive on the right of a nonresident alien to maintain such an action in the common law courts of England.

In the American cases in which it has been held that a nonresident alien could not maintain an action to recover the relief provided for by statutes similar to Lord Campbell's act, the lack of any English precedent for such recovery is commented upon; but such precedent is no longer wanting, even if the cases just cited are disregarded, for in Davidson v. Hill (1901) 2 K. B. D. 606, the question has been fully considered in opinions rendered by Sir. William Rann Kennedy and Sir Walter Phillimore, and the conclusion is unequivocally announced that the fatal accidents acts apply as well for the benefit of representatives of a deceased foreigner as for those of a British subject--at all events, as against an English wrongdoer; and the principle contended for in that case by the defendant, that acts of Parliament do not apply to nonresident aliens, unless the language of the statute expressly refers to them, is repudiated in such a case, and the Adam Case is overruled. Kennedy, J., uses this language: “It appears to me, under all the circumstances, and looking at the subject-matter, more reasonable to hold that Parliament did intend to confer the benefit of this legislation upon foreigners as well as upon subjects, and certainly that against English wrongdoers the foreigner has a right to maintain his action under the statutes in question.” As the action...

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11 cases
  • Burgess v. Gilchrist
    • United States
    • Supreme Court of West Virginia
    • December 2, 1941
    ......215, 63 N.E. 94, 88 Am. St.Rep. 191; Romano v. Capital City Brick & Pipe Co., 125 Iowa 591, 101 N.W. ......
  • Burgess v. Gilchrist
    • United States
    • Supreme Court of West Virginia
    • December 2, 1941
    ......215, 63 N.E. 94, 88 Am. St.Rep. 191; Romano v. Capital City Brick & Pipe Co., 125 Iowa. 591, 101 N.W. ......
  • Burgess v. Gilchrist
    • United States
    • Supreme Court of West Virginia
    • December 2, 1941
    ...Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N. E. 94, 88 Am. St. Rep. 191; Romano v. Capital City Brick & Pipe Co., 125 Iowa 591, 101 N. W. 437, 63 L. R. A. 132, 106 Am. St. Rep. 323, 2 Ann. Cas. 678; Atchison T. & S. F. Ry. Co. v. Fajardo, 74 Kan. 314, 86 P. 301, 6 L. R. A. (N. S.) ......
  • Saveljich v. Lytle Logging & Mercantile Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 7, 1909
    ......Co. v. Osgood, 36 Ind.App. 34,. 73 N.E. 285. Iowa: Romano v. Capital Brick & Pipe. Co., 125 Iowa, 591, 101 N.W. 437, ......
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