Sullivan v. Hustis

• Decision Date: 28 February 1921
• Citation: 237 Mass. 441
• Parties: TIMOTHY J. SULLIVAN, administrator, v. JAMES H. HUSTIS, receiver.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 441

TIMOTHY J. SULLIVAN, administrator, v. JAMES H. HUSTIS, receiver.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1921

December 8, 1920.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Receiver. Negligence, Causing death, Neglect to give statutory signals at grade crossing.

Actionable Tort. Sections 65 and 66 of the Judicial Code of the United States 36 U.

S.

Sts. at Large 1104, 1105, require a federal receiver of a railroad corporation to conduct its business and operate its system of transportation in conformity to valid State laws upon the same footing, with like responsibility and subject to the same liability to respond to suits as would rest upon the corporation if it were in possession and operating.

Section 147 of St 1906, c. 463, Part II, was designed to afford protection from injury to travellers upon highways at grade crossings with railroads, and its immediate tendency was to promote the safety, comfort and convenience of the travelling public.

Section 245 of St 1906, c. 463, Part II, so far as it concerns recovery of damages for the causing of the death of a traveller upon a highway at a grade crossing with a railroad by reason of neglect of a railroad corporation to give the signals required by Section 147, while in some aspects punitive in its nature, is not criminal but has important remedial features.

A receiver of a railroad corporation in this Commonwealth, appointed by a decree of a District Court of the United States, is liable under St.

1906, c. 463, Part II, Section 245, to the same extent as the corporation would be liable, were it operating the railroad, for personal injury or the causing of the death of a person by neglecting to give the signals required by Section 147 of the statute.

TORT under St. 1906, c. 463, Part II, Section 245, with a declaration in two counts, the first for damages due to conscious suffering of Catherine Sullivan and the second for the causing of her death in a collision, due to a neglect to give the signals required by Section 147 of the statute, at a grade crossing of a highway in North Wilmington with the Boston and Maine Railroad, the defendant being temporary receiver of the railroad corporation under a decree of the United States District Court for the District of Massachusetts. Writ dated May 19, 1917.

The defendant demurred, assigning as grounds of demurrer to both counts (1) that no legal cause of action was therein set forth, (2) that no obligation was imposed on this defendant by St. 1906, c. 463, Part II, Section 147, to give any signals at a grade crossing, and (3) that no obligation was imposed by any statute upon this defendant to give any signals at a grade crossing; and as an additional ground for demurrer to the second count (4) that neither Part I, Section 63, nor Part II, Section 245, of St. 1906, c. 463, imposing a liability upon a railroad corporation by indictment or, in substitution therefor, by an action of tort for loss of life at a railroad crossing and on other occasions, applied to this defendant, who was not a railroad corporation within the meaning of said sections.

The demurrer was heard by J. F. Brown, J., and was sustained, and the judge thereupon reported the case to this court for determination.

James J. McCarthy, for the plaintiff. A. W. Rockwood, for the defendant.

RUGG, C.J. This is an action of tort. The declaration sets forth in one count that the defendant is temporary receiver of the Boston and Maine Railroad, duly appointed by ther United States District Court for the district of Massachusetts, and that personal injury and suffering came to the plaintiff's intestate while a traveller on a highway in Wilmington, at a place where the tracks of the Boston and Maine Railroad cross the highway at grade, through collision with an engine or cars arising from the neglect to give the grade crossing signals required by St. 1906, c. 463, Part II, Section 147. The other count is like, except that it sets forth the death of the plaintiff's intestate. Both counts are founded on Section 245 of said Part II, which is in these words: "If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing such as is described in section one hundred and forty-seven and it appears that the corporation neglected to give the signals required by said section, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment as provided in section sixty-three of Part I, or, if the life of a person so injured is lost, to damages recoverable in an action of tort, as provided in said section, unless it is shown that, in addition to a mere want of ordinary care, the person injured or the person who had charge of his person or property was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wflful negligence or unlawful act contributed to the injury."

The defendant demurred. The question to be decided is whether the defendant as receiver can be held liable under said Section 245.

There is no provision of our railroad act in express terms imposing upon receivers the obligations of this kind resting upon railroad corporations.

Pertinent provisions of federal statutes are found in the Judicial Code of the United States, Act of Congress of March 3, 1911, 36 U.S. Sts. at Large, 1104, 1105, as follows:

"Sec. 65. Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall willfully violate any provision of this section shall be fined not more than three thousand dollars, or imprisoned not more than one year, or both.

"Sec. 66. Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice."

These sections in substance and effect are re-enactments of the Act of Congress of March 3, 1887, c. 373, Sections 2, 3, 24 U.S. Sts. at Large, 554, and Act of Congress of August 13, 1888, c. 866, Sections 2, 3, 25 U.S. Sts. at Large, 436.

These sections of the federal statutes have been considered by the Supreme Court of the United States in several cases. In holding that a receiver of a railroad was, under Act of Congress of March 3, 1887, c. 373, Section 3, 24 U.S. Sts. at Large, 554 liable for the acts of his predecessor in the same office, it was said in McNulta v. Lochridge, 141 U.S. 327, at page 331: "We agree . . . that with respect to the question of liability he stands in place of the corporation;" and at page 332: "Actions against the receiver are in law actions against the receivership, or the funds in the hands of the receiver, and his contracts, misfeasances, negligences and liabilities are official and not personal, and judgments against him as receiver are payable only from the funds in his hands. As the right given by the statute to sue for the acts and transactions of the receivership is unlimited, we cannot say that it should be restricted to causes of action arising from the conduct of the receiver against whom the suit is brought." An action of tort for negligent setting of fire by sparks from a locomotive was before the court in Eddy v. Lafayette, 163 U.S. 456, where at page 464 it is said: "The trial court and also the Circuit Court of Appeals were of opinion that the third section of the judiciary act of March 3, 1887, c. 373, Section 3, 24 U.S. Stat. 552, 554, authorizing suits to be brought against receivers of railroads, without special leave of the court by which they were appointed, was intended to place receivers upon the same plane with railroad companies, both as respects their liability to be sued for acts done while operating a railroad and as respects the mode of service. We concur in that view. . . ." An action was brought against receivers of a railroad in United States v. Harris, 177 U.S. 305, to recover penalties in the name and for the benefit of the United States for the alleged knowing and wilful violation of the laws of the United States respecting the watering of live stock while in transportation. In the course of an opinion holding that such recovery could not be had because as matter of statutory construction the word "company" could not rightly be said to include "receivers of such company," it was said at page 308: "It may be conceded that it was the intention of Congress [by enacting the Act of August 13, 1888, c. 866, Sections 2 and 3, 25 U.S. Sts. at Large, 436], to subject receivers of railroad companies, appointed such by courts of the United States, to the valid laws and regulations of the States and of the United States, whose object is to promote the safety, comfort and convenience of the travelling public." The statute there before the court was strictly penal without compensatory features. The penalty was payable to the United States and not by way of damages to the owner of the cattle or other person suffering injury. It was in its...