MCGOVERN, ADMINISTRATRIX, v. PHILADELPHIA & READING RAILWAY COMPANY.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

No. 430. Argued November 30, 1914.-Decided December 14, 1914.

Where appellants, plaintiffs below, had a verdict on the first trial which was set aside on motion for new trial on which the District Court discussed questions arising under treaties and ruled adversely to plaintiffs, and on the second trial the court ruled adversely to plaintiffs under the Federal statute, this court will presume that the court also considered the treaty questions, and a direct appeal will lie to this court based on the construction and application of the treaty.

In deciding Maiorano v. Baltimore & Ohio Railroad Co., 213 U.S. 268, which came here on writ of error from the state court, this court simply accepted the ruling of the state court that a non-resident alien could not maintain an action for death of a relative under the state statute, as being the construction by the highest court of the State of that statute.

After reviewing the rulings of many jurisdictions in regard to the right of non-resident aliens to maintain actions for death of relatives under statutes giving the right, held that the weight of authority in this country and in England is that alienage is not a condition affecting right of recovery under the Federal Employers' Liability Act. Quare, whether under the favored nation provision in the existing treaty with Great Britain and the express provision in the treaty with Italy permitting Italian aliens, non-resident in the United States, to maintain actions in the courts of the United States and of the States, a citizen of Great Britain has a treaty right to maintain an action for the death of a relation under the Federal Employers' Liability Acts of 1908 and 1910.

In this case, held, that in view of the conflict of evidence as to the circumstances under which the intestate was killed, the question of assumption of risk was properly presented to the jury.

Where there has been a verdict for plaintiff and it has been set aside on the ground that plaintiff has not capacity to sue, and on the second

Argument for Plaintiff in Error.

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trial a verdict directed for defendant on that ground, the Circuit Court of Appeals cannot reverse and direct judgment on the original verdict even if the plaintiff waives a jury trial; the case must be sent back for new trial.

Judgment based on 209 Fed. Rep. 975, reversed.

THE facts, which involve the construction of the Federal Employers' Liability Acts of 1908 and 1910, and the right of non-resident aliens to maintain actions thereunder, and also questions involving rights under the favored nation clause of the treaty with Great Britain, are stated in the opinion.

Mr. George Demming for plaintiff in error:

This court has jurisdiction. Nichols Lumber Co. v. Franson, 203 U. S. 278; Giles v. Harris, 189 U. S. 475; Williamson v. United States, 207 U. S. 425.

Non-resident aliens can benefit under the provisions of the Act of Congress of April 22, 1908. See Maiorano v. Balt. & Ohio R. R., 213 U. S. 268; affirming 216 Pa. St. 402; and see Deni v. Penna. R. R., 181 Pa. St. 525; Balt. & Ohio R. R. v. Baldwin, 144 Fed. Rep. 53; Brannigan v. Union Mining Co., 93 Fed. Rep. 164; Zeiger v. Penna. R. R., 151 Fed. Rep. 348; S. C., 158 Fed. Rep. 809; Roberts v. Great Northern Ry., 161 Fed. Rep. 239; Fulco v. Schuylkill Stone Co., 163 Fed. Rep. 124.

Maiorano v. Balt. & Ohio R. R., 213 U. S. 268, distinguished, as since that decision there has been a new treaty with Italy, of February 25, 1913, and Pennsylvania has passed an act permitting non-resident aliens to recover in Pennsylvania in like cases.

Under the terms of the treaties between the United States and foreign countries, especially with Italy and with Great Britain, plaintiff in error can recover.

Because of the most favored nation clause the terms of the treaty with Italy would be held to apply to subjects of Great Britain and Ireland.

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Argument for Plaintiff in Error.

If a new rule of law was promulgated by the new treaty with Italy it went back and covered all cases, which, though originating before, nevertheless had not been tried and decided up to that time.

Treaties are construed with regard to the intention as well as with reference to justice and convenience. The Amistad, 15 Pet. 518, 591, 595; United States v. Texas, 162 U. S. 1; Tucker v. Alexandroff, 183 U. S. 424.

A treaty is to be construed in the light of all the facts and circumstances surrounding its making. In re Ross, 140 U. S. 453; United States v. Schooner "Peggy," 1 Cranch,

103.

Even ignoring the treaties between the United States. and Italy and the doctrine of the most favored nation clause, plaintiff in error has the right to bring the present suit and to recover therein by reason of direct treaty rights and provisions between the United States and Great Britain and Ireland. See Arts. II and V of the treaty of March 2, 1899, with Great Britain.

A treaty is the supreme law of the land, binding alike national and state courts, and is capable of enforcement, and must be enforced by them in the litigation of private rights. Chew Heong v. United States, 112 U. S. 536; Tucker v. Alexandroff, 183 U. S. 424.

A treaty should be liberally construed, De Geofrey v. Riggs, 133 U. S. 258, and if it admits of two constructions the more liberal one is to be preferred. Hauenstein v. Lynham, 100 U. S. 483; 2 Herod on Favored Nation Treatment, p. 9; Hall's Int. Law, pp. 350-355 (4th Ed.). See also Chambers v. Balt. & Ohio R. R., 207 U. S. 142, 150; Maiorano v. Balt. & Ohio R. R. Co., supra.

Within the broad intent of this treaty such a right of action for the death is the personal property of the heirs. As to what is property see Sinking Fund Cases, 99 U. S. 700, 738; Seaman v. Clarke, 69 N. Y. Supp. 1002; Power v. Harlow, 57 Michigan, 107, 111; Battishell v. Humphreys,

Argument for Plaintiff in Error.

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64 Michigan, 494; Smith v. Stage Co., 28 How. Prac. (N. Y.) 277; William's Personal Property, 16th ed., 144; Schouler, Personal Property, 3d ed., §§ 11-15, 58; 32 Cyc. 669.

This is plain, no matter what theory of the origin of the suit for death by negligence is accepted. Mich. Cent. R. R. v. Vreeland, 227 U. S. 59, 67.

While in this country rights of foreigners to real estate and immovable property rest primarily in the laws of the State where such property is situated, Hauenstein v. Lynham, 100 U. S. 483; Blythe v. Hinckley, 180 U. S. 333, this law does not apply to personal estate, but aliens have full power and right in this country to succeed thereto. McLearn v. McClellan, 10 Pet. 625, 637.

By international law and the law of comity and reciprocity between nations this plaintiff should be allowed to recover.

International law is undoubtedly part of the law of this land. 2 Butler's Treaty-making Power, 187, 223; Love v. United States, 29 Ct. of Cl. 332; Ekiu v. United States, 142 U. S. 651; McEwan v. Zimmer, 38 Michigan, 765; Hilton v. Guyot, 159 U. S. 113; Paquette Habana, 175 U. S. 677; Bank v. Earle, 13 Pet. 519, 589; Story's Con. Laws, § 618.

Such is the rule in Great Britain, under Employers' Liability Act of England, enacted in 1880, Lord Campbell's Act of 1846, and the "Fatal Accidents Act," although the acts themselves are silent on this point. Ruegg's Employers' Liability, 7th ed., 148; Davidson v. Hill, 2 K. B. (1901) 606; Elliott, Workmen's Compensation, 6th ed., 311; Baird v. Savage, 43 Scot. Law Rep. 300 (1906); Krzus v. Crow's Nest Coal Co., Law Rep. App. Cas. 1912, 590.

If the statute meant otherwise, it should have said so in plain words. See 6 Butterworth's Workmen's Compensation, 271; Davidson v. Hill, 70 L. J., K. B., 1901, 788;

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Argument for Plaintiff in Error.

Varesick v. British Columbia Copper Co., 12 B. C. 286, 1906.

By the laws of international reciprocity and comity this country is bound to extend the same rights and benefits, under our own laws, to British subjects.

This is not any new or strange doctrine. United States v. O'Keefe, 11 Wall. 178, 183.

Under the plain reading of the state statute itself plaintiff in error can recover. Endlich, Inter. Stat., § 4.

Where the language of an act is so clear and explicit as not to be open to construction, its construction cannot be changed by the practice of the departments, however long continued. United States v. Graham, 110 U. S. 219; Thornley v. United States, 113 U. S. 310.

A statute must be held to mean what the language imports. When it is clear and imperative, reasoning ab inconvenienti is of no avail, and there is no room for construction. The Cherokee Tobacco, 11 Wall. 616; United States v. Temple, 105 U. S. 97; Lake County v. Rollins, 130 U. S. 662; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1.

So universally has this come to be regarded as the true rule of interpretation, that where the legislatures of the individual States have passed compensation acts and have decided that where non-resident aliens are excluded from the benefits of the Act a provision to that effect has been inserted. See Workmen's Compensation Act New Jersey, 1911, ch. 95, § 12; Act of Washington, 1911, ch. 74, § 3; New Hampshire Act, 1911, ch. 163, § 6.

For specific provisions in regard to aliens, see Wisconsin Act, 1911, ch. 50, § 10, par. 5; and see McMillan v. Spider Lake Mill Co., 115 Wisconsin, 332; Michigan Act, 1912, No. 3, § 7.

The New York Act, ch. 816, 1913, § 17, makes its provisions applicable to non-resident aliens.

The acts of other States appear to be silent on the subject. Bradbury's Workmen's Compensation.