Verano v. DeAngelis Coal Co.

• Decision Date: 07 April 1942
• Docket Number: No. 509.,509.
• Citation: 44 F. Supp. 726
• Parties: VERANO v. DeANGELIS COAL CO., Inc.
• Court: U.S. District Court — Western District of Pennsylvania

44 F. Supp. 726

VERANO v. DeANGELIS COAL CO., Inc.

No. 509.

District Court, M. D. Pennsylvania.

April 7, 1942.

George W. Ellis, A. M. Lucks, and David J. Reedy, all of Scranton, Pa., for plaintiff.

Joseph P. Brennan, of Scranton, Pa., Arthur A. Maguire, of Wilkes-Barre, Pa., and C. P. O'Malley, of Scranton, Pa., for defendant.

JOHNSON, District Judge.

On August 21, 1940, plaintiff instituted this action against defendant to recover damages for an occupational disease allegedly contracted because of the negligence of defendant, his employer. Plaintiff in his complaint stated that he is a subject of the King of Italy and that he had resided within this district for the past twelve years at the time of the commencement of this action. It appears he has resided within the United States since 1916. The United States having declared the existence of a state of war between the United States and the Government of Italy on December 11, 1941, defendant has moved to dismiss or stay this action because plaintiff has become an alien enemy and is precluded from maintaining this suit in the Courts of the United States. After hearing the argument this court on January 23, 1942, entered an order staying the proceeding for the duration of the war. Upon request of plaintiff's counsel a rehearing was granted and the question was submitted upon briefs of both parties.

The question presented for our determination is whether under the laws of the United States, and the proclamations of the President pursuant thereto, a resident alien of Italian citizenship may maintain a suit in the United States courts. In view of the authorities to which our attention has been directed by plaintiff's brief, we are of the opinion that this must be answered in the affirmative and that the order previously entered staying further proceedings must be vacated.

The plea of "alien enemy" has been regarded with disfavor in England and the United States as a hard and odious plea. Gradually it was recognized; first, that a resident subject of a country at war with the country of the forum could maintain a suit provided it appeared that his presence in the country of the forum was under the protection of the government of the forum, Wells v. Williams, 1 L.Ray. 282; secondly, that a plea of "alien enemy" must go beyond the averment of the plaintiff's alien enemy citizenship and indicate that the plaintiff was himself "an enemy, or adhering to the enemy", and when it is shown the plaintiff resides in the country where the suit is brought, it is necessary that the defendant "show that he is not under the protection of the government," Russel v. Skipwith, 1 Serg. & R. 310, 6 Bin. 241; thirdly, it was held in Clarke v. Morey, 10 Johns, N.Y., 69, that tangible evidence of the plaintiff's being in the country of the forum in the nature of letters of safe conduct or license was not required to bring the plaintiff within the exception of being under the protection of the government as this was implied "by law and the usage of nations" from the fact that the plaintiff resided there prior to the war. Thus it has been said in Russel v. Skipwith, supra, "the rigor of the ancient law has been softened by increased civilization, and the principle has gradually gained ground, that the contracts of individuals ought not to be affected by the quarrels of nations. * * * Although the plaintiff be an enemy, yet if he resides in the country where the suit is brought, under the protection of the government which is implied from the fact of former residence and the absence of a request to depart, he may support an action."

Moreover, the reason of the more severe early common law rule denying the right to bring an action was that the moneys recovered would be withdrawn by the successful plaintiff and added to the "funds of his native country." Russel v. Skipwith, supra. Legislation having been passed providing for the seizure of property belonging...