File No. 18253/17.
Memorandum from the Italian Embassy.
Washington , February 19, 1910 .
Referring further to the memoranda of the Department of State bearing date of November 4, 1909, and January 12, 1910, with reference to the case of Maiorano v. Baltimore & Ohio Railroad Co., written upon the assumption that the Supreme Court of Pennsylvania has held that citizens of the United States not residing in Pennsylvania are not entitled to recover for the deaths of relatives occurring in that State, the Royal Italian Embassy is constrained to differ from this assumption, as its reading of the decision of the Supreme Court of Pennsylvania does not sustain the same.
In order to fully understand the Maiorano decision it is necessary to consider the case of Deni v. Pennsylvania Railroad) 181 Pa. S., 525), as the Maiorano decision followed the doctrine first enunciated in that case. The action in the Deni case was brought by the mother, a nonresident alien, for the death of her son in Pennsylvania, and she was refused the right to recover expressly upon the ground that she was a nonresident alien, and not merely because she was a nonresident. The court said:
Our statute was not intended to confer upon nonresident aliens rights of action not conceded to them or to us by their own country. * * * We have a number of statutes which expressly confer rights upon aliens but none which confer them by implication or inference. When the legislature intends to concede nonresident aliens the rights which our own citizens have under and by virtue of the act of April 26, 1855, it will say so.
In the Maiorano case the Supreme Court of Pennsylvania said:
A single fact, nonappearing and of course not considered in the case of Deni v. P. R. R. Co. (181 Pa. Sta., 525) is relied upon to distinguish this case from that and exempt it from the operation of the rule there declared. That case expressly decides that a nonresident alien has no standing to maintain an action under the act of April 26, 1855, for the recovery of damages for injury to another causing death. There, as here, the party claiming the right of action was a nonresident alien, the citizenship in both cases being the Kingdom of Italy.
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A statute right is given our citizens in such case, but the plaintiff, as we have seen, with respect to any such claim is not within any treaty privileges, but is simply an alien. This being the case, the doctrine of Deni v. P. R. R. Co. applies, and it results that a nonsuit was properly ordered.
There is no statement whatever in either of these cases that citizens of the United States not resident in Pennsylvania are excluded from the benefit of the act.
[Page 661]The act itself reads as follows:
The persons entitled to recover damages for any injury causing death shall be the husband, widow, children, or parents of the deceased and no other relative.
Under this broad and unrestricted language, taken in its ordinary sense, the relatives specified are entitled to recover whether they be native or alien, resident or nonresident. The Supreme Court of Pennsylvania has only decided that nonresident aliens are not entitled to the benefit of the act, and consequently citizens of the United States not residing in Pennsylvania are entitled to recover unless and until there shall be some decision of the Supreme Court of Pennsylvania to the contrary. In other words, the court has read into the act a restriction against the recovery by nonresident aliens, not by all nonresidents.
The understanding of the embassy on this point is further supported by reference to the reasoning of the Supreme Court of Wisconsin, the only State which now follows the Pennsylvania rule on this question. In the case of McMillan v. Spider Lake S., M. & L. Co. (115 Wis., 332), a Canadian mother sued for the death of her son in Wisconsin and was denied the right of recovery, not because she was a nonresident, but because she was not a citizen of the United States.
The court said:
It also appears from the testimony of the deceased’s brother that the deceased left no issue, and was unmarried, and that his father was dead; that his mother was still living in Canada, where she had lived for many years; that she had no property; that the deceased had been accustomed to send his mother $10 a month when he could spare it; that she never lived in nor became a citizen of the United States; that his father lived nearly all his life at the same place where his mother did, and that he did not think he was ever a citizen of the United States. Upon such undisputed evidence it is claimed on the part of the defendant that under our statute this action can not be maintained for the benefit of the mother of the deceased, a nonresident alien.
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Upon this principle and under a statute similar to ours it was held in Pennsylvania that “a nonresident alien mother has no standing to maintain an action against a citizen of Pennsylvania to recover damages for the death of her son.” Deni v. Pennsylvania R. Co. (181 Pa. St., 525; 37 Atl., 558). In that case the court used this language:
“Our statute was not intended to confer upon nonresident aliens rights of action not conceded to them or to us by their own country, or to put burdens on our own citizens to be discharged for their benefit. It has no extraterritorial force, and the plaintiff is not within the purview of it. 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 can not adopt it. (181 Pa. St., 528, 529; 37 Atl. 559.)”
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We must hold that the sections of the statutes relied upon do not give to nonresident alien relatives of one who is instantly killed, or who dies without conscious pain, a right of action for the loss sustained by reason of such death.
From the above it is apparent that the plaintiff was refused the right of recovery solely because she was an alien, and she would have been permitted to recover if she had been a citizen of the United States, though not a citizen or resident of Wisconsin.
As the effect of the decision of the Supreme Court of the United States in the Maiorano case is to restrict and qualify the nature of the protection which Italian subjects are entitled to receive under the terms of the treaty, it should be pointed out that at the time of the making of the treaty it must have been considered that the term [Page 662] “equal protection” would be interpreted thereafter in a most liberal and unrestricted sense, so as to afford to the citizens or subjects of the contracting powers absolutely equal protection of all kinds and degrees, whether proximate, remote, direct, or indirect. This conclusion is based upon the decisions of the Supreme Court beginning as early as 1830 in the case of Shanks v. Duponts (3 Pet., 253) and continued through Hauenstein v. Lyman (100 U. S., 483), Geoffry v. Riggs (133 U. S., 266), and Tucker v. Alexanderuff (133 U. S., 437), which policy was not departed from until the rendition of the decision in the Maiorano case, when suddenly a strict and technical construction seems to have been upheld.
In view of the foregoing the Department of State is requested to give further consideration to the subject.