Vetaloro v. Perkins

• Decision Date: 17 April 1900
• Docket Number: 881.
• Citation: 101 F. 393
• Parties: VETALORO v. PERKINS et al.
• Court: U.S. District Court — District of Massachusetts

101 F. 393

VETALORO v. PERKINS et al.

No. 881.

United States Circuit Court, D. Massachusetts.

April 17, 1900

H. J Jaquith and William Reed Bigelow, for plaintiff.

Nason &amp Proctor, for defendants.

COLT Circuit Judge.

This is an action brought by the widow of an employe to recover damages for the death of her husband, under section 2 of the employers' liability act of Massachusetts (Acts 1887, c 270). It is contended that this action cannot be maintained because it appears that the plaintiff is a citizen and resident of Italy. There is nothing in the language of the act which limits the right of recovery to citizens or residents of Massachusetts, and there seems to be no sound reason for holding that nonresident aliens are excluded from the benefits conferred by section 2. Nonresident aliens have the same right to sue in the courts of Massachusetts as citizens. Roberts v. Knights, 7 Allen, 449; Peabody v. Hamilton, 106 Mass. 217. To adopt such a construction of the statute would be to say that employers may escape liability for negligence, where an employe is instantly killed or dies without conscious suffering, by the employment of alien laborers. This consideration alone is sufficient to condemn such a construction, in the absence of some express limitation in the statute itself.

The Massachusetts statute, with some variations of detail, is copied from the English statute (43 & 44 Vict. c. 42). It was intended to remove certain bars to the right of employes to sue for personal injuries based on their relation to their employer. Ryalls v. Mechanics' Mills, 150 Mass. 190, 191, 22 N.E. 766, 5 L.R.A. 667. 'The purpose of the legislature in enacting this statute, as its title indicates and its provisions show, was to soften some of the harsh features of the old common law of master and servant, and so to place upon the statute books a law beneficial to the laboring classes. This obvious purpose furnishes a key to the interpretation of the whole act. Its terms are to be given a liberal construction, favorable to the employe just so far as the plain meaning of the words used will permit. ' Williams, St. Torts Mass. p. 122, § 114. Section 1 of the act declares the liability of employers for injuries suffered by employes in their service (1) by reason of any defect in the condition of ways and works of machinery, due to the negligence of the employer or any person in his service; (2) by reason of the negligence of any person in the service of the employer intrusted with and exercising superintendence; (3) by reason of the negligence of any person in the service of the employer who has charge or control of any signal, switch, locomotive engine, or train upon a railroad. In case the injury results in death, the legal representative of such employe shall have the same right of compensation and remedy against the employer as if the employe had not been an employe of nor in the service of the employer, nor employed in its work. It is not suggested that an alien employe, or, in case death should result from the injury, the representative of such employe, could not maintain an action under this section. Section 2, under which the present suit is brought, reads as follows:

'Where an employee is instantly killed or dies without conscious suffering, as the result of the negligence of an employer, or of the negligence of any person for whose negligence the employer is liable under the provisions of this act, the widow of the deceased, or in case there is not widow, the next of kin, dependent upon the wages of such employee for support, may maintain an action for damages therefor and may recover in the same manner, to the same extent, as if the death of the deceased had not been instantaneous, or as if the deceased had consciously suffered.'

This section extends the liability of employers under the act to cases of instant death resulting from the negligence of the employer, and gives the widow or next of kin the right to maintain an action. In construing the words at the close of the section, 'in the same manner, to the same extent, as if the death of the deceased had not been instantaneous, or as if the deceased had consciously suffered,' it was said by the court in Ramsdell v. Railroad Co., 151 Mass. 245, 149, 23 N.E. 1104, 7 L.R.A. 155: 'The meaning obviously is that the right of action given in the first part of the section shall not be affected by the fact that the deceased died instantaneously or without conscious suffering. ' The manifest purpose of section 2 is to give the widow and next of kin of an employe the same right to bring an action in the case of death as the employe in case he had survived would have had under section 1. No distinction is made between citizens and aliens in either section. The only limitation imposed is that the next of kin, in order to maintain an action, must be dependent for support on the wages of the employe. To exclude nonresident aliens from the right to maintain an action under section 2 is to incorporate into the act a restriction which it does not contain. It is to refuse compensation to a certain class of persons for a real injury recognized by statute law. It is to relieve employers with respect to some employes from the exercise of due care in the employment of safe and suitable tools and machinery and competent superintendents. It is to offer an inducement to employers to give a preference to aliens and to discriminate against citizens. It is to hold that the legislature of Massachusetts intended by this act to declare that employers should not be liable for the grossest negligence which results in the instant death of an alien employe in cases where his widow or next of kin happen to reside in a foreign country.

The argument urged in support of the proposition that a nonresident alien cannot maintain an action under section 2 is as follows: The right to recover for the death of a person did not exist at common law. The statutes of the various states creating such a right are based upon Lord Campbell's act (9 & 10 Vict. c. 93, A. D. 1846). No English case has been found in which it has been held that Lord Campbell's act extended to nonresident aliens, and the same is true of the decisions in the various states under similar acts. Further, it has been expressly held by the supreme court of Pennsylvania and the circuit court of the United States for the district of Colorado, under statutes framed after Lord Campbell's act, that nonresident aliens cannot maintain an action. Deni v. Railroad Co., 181 Pa.St. 525, 528, 37 A. 558; Brannigan v. Mining Co. (C.C.) 93 F. 164.

In Deni v. Railroad Co. the court bases its decision upon the following grounds:

'No case has been cited to us, nor are we aware of any, in which a nonresident alien, whether husband, widow, child, or parent of the deceased, has maintained a suit, under the act of April 26, 1855 (P.L. 309), to recover damages for an injury causing death. Our legislation on this subject is in accord with the English statute of August 26, 1846, and therefore the decisions of the English courts c

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