Szymanski v. Blumenthal

• Decision Date: 10 June 1902
• Citation: 19 Del. 558,52 A. 347
• Parties: EVA SZYMANSKI v. FERDINAND BLUMENTHAL and JULIEN STEVENS ULLMAN, trading as F. BLUMENTHAL & CO
• Court: Delaware Superior Court

52 A. 347

19 Del. 558

EVA SZYMANSKI v. FERDINAND BLUMENTHAL and JULIEN STEVENS ULLMAN, trading as F. BLUMENTHAL & CO

Superior Court of Delaware, New Castle County

June 10, 1902

Superior Court, New Castle County, May Term, 1902.

FOREIGN ATTACHMENT CASE (No. 68, May Term, 1902). Demurrer to plea in abatement.

The facts appear in the opinion of the Court.

Levi C Bird, Andrew E. Sanborn and Edwin R. Cochran, Jr., for plaintiff.

William S. Hilles for defendants.

Judges GRUBB and PENNEWILL, sitting.

OPINION

GRUBB, J.

This action is brought under Section 2, Chapter 31, Volume 13 Laws of Delaware (Rev. Code, 788), by the widow of a deceased employee, for the purpose of securing damages for the loss of her husband's comfort, support, etc occasioned by his death, which, as she alleges, was caused by the negligence of the defendants.

Said section is as follows:

"Wherever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow of any such deceased person, or if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned."

The plaintiff's declaration in effect alleges that her husband, at the time of the injury which caused his death, was residing in this State for the purpose, at least, of employment for hire in the industrial establishment of the defendants in this city and county, wherein he was then actually engaged in his occupation as a servant in their employ.

The defendants' plea in abatement does not deny these facts respecting the husband, but alleges that the plaintiff, his widow, was before and at the time of said injury, and of the commencement of this suit, a resident of Russia and a non-resident alien.

The general demurrer of the plaintiff admits the facts alleged in the defendants' plea in abatement.

The question raised by the pleadings, therefore, is not whether under our said statute, the action will lie where both the defendant and the plaintiff are non-resident aliens, or where both or either of them are such and the cause of action arose outside of our State and jurisdiction.

In the case before us, as presented by the facts of record, the defendants are residents of Delaware, the alleged injury and cause of action occurred here, the deceased husband was at the time resident here--temporarily, at least, for the purpose of his said employment--and was then engaged in behalf of one of our industrial interests, although the plaintiff, now his admitted widow, was then an alien and actually, if not in legal contemplation, a resident of the Empire of Russia.

As we must confine our decision to the facts exclusively as they appear here on record, the sole question for our determination is whether this widow, the plaintiff, is entitled to recover in this suit, under our statute, being now, and having been before and at the time of the alleged injury and death of her said husband, and of the commencement of this suit, an alien and actually resident within the Empire of Russia.

This question is a novel one in Delaware. In this country it has arisen in four adjudicated cases only, so far as we have yet found, under statutes and circumstances generally similar to those before us. In two of these the adjudications have been in favor of the plaintiff non-resident alien, and in the other two to the contrary.

Vetaloro vs. Perkins, 101 F. 393; Mulhall vs. Fallon, 176 Mass. 266, 57 N.E. 386; Brannigan vs. U. G. Mining Co., 93 F. 164; Deni vs. Pa. R. R. Co., 181 Pa. 525, 37 A. 558.

In England the question has been raised, but it does not yet seem to have been conclusively and satisfactorily settled there. For, in The Explorer, 3 Law Rep. Admiralty and Eccles., 289-90 (1869), whilst the question was not directly raised, yet the Court seems necessarily to have recognized or assumed the right of a non-resident alien to maintain the action under Lord Campbell's act. It is true that afterwards this case was overruled in the English courts, which held that that the Court of Admiralty had no jurisdiction to entertain claims under Lord Campbell's act. But, in doing so, said Court did not hold or assert, as a ground of their disapproval, that a non-resident alien plaintiff could not maintain an action under said act in the proper court.

Subsequently, in Adams vs. British & Foreign Steamship Co., L. R., 2 Q.B. 430, (1898), Darling, J., sitting in the Court of Queen's Bench held that a non-resident alien plaintiff could not maintain an action under Lord Campbell's act, and that it is a rule of construction in England that acts of Parliament do not apply to aliens, at least if they be not even temporarily resident in that country, unless they expressly refer to them.

In that case the plaintiff was a non-resident alien mother (not widow), and the fatal injury did not occur in Great Britain.

In Pollock's Law of Torts, p. 61, the learned author concludes his review of Lord Campbell's act, as follows:

"In the United States there exist almost everywhere statutes generally similar to Lord Campbell's act; but they differ in details from one another.

"The tendency seems to be to confer on the survivors, both in legislation and in judicial construction, larger rights than in England."

Such being the state of judicial and professional opinion in England, and the conflict of the adjudications in this country, the question before us is one of much difficulty and no little embarrassment, in...