Arruda v. Dir. Gen. of Railroads

• Decision Date: 27 February 1925
• Citation: 251 Mass. 255,147 N.E. 21
• Parties: ARRUDA v. DIRECTOR GENERAL OF RAILROADS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 255

147 N.E. 21

ARRUDA

v.DIRECTOR GENERAL OF RAILROADS.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 27, 1925.

Exceptions from Superior Court, Bristol County; Marcus Morton, Judge.

Action of tort by Mary J. Arruda, administratrix, against John Barton Payne, Director General of Railroads, substituted by James C. Davis, Agent, to recover for the wrongful death of plaintiff's husband, Antonio Soares Arruda. On defendant's exceptions to denial of motion for directed verdict. Exceptions sustained.

H. F. Hathaway and E. Hathaway, both of Taunton, for plaintiff.

M. G. Gonterman and H. Lawlor, both of Boston, for defendant.

RUGG, C. J.

This is an action of tort. It is brought to recover damages for the instant death of the plaintiff's intestate, which occurred in September, 1919, by reason of the collision of an automobile driven by him while a traveler on a public way, with a locomotive engine, at a crossing at grade with tracks of the New York, New Haven & Hartford Railroad system during the period when it was under federal control pursuant to acts of Congress and a proclamation of the President. 39 U. S. Stats. at Large, c. 418, pp. 619, 645 (U. S. Comp. St. § 1974a); 40 U. S. Stats. at Large, c. 25, p. 451 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p); 40 U. S. Stats. at Large, 1733; 41 U. S. Stats. at Large, c. 91, p. 456 (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4 et seq.). The action is brought under St. 1906, c. 463, part 1, § 63, as amended (St. 1907, c. 392, § 1), in force at the time of the death. See now G. L. c. 229, §§ 1, 3. The material parts of that section as amended are:

‘If a corporation which operates a railroad or a street railway, by reason of its negligence or by reason of the unfitness or negligence of its agents or servants while engaged in its business, causes the death of a passenger, or of a person who is in the exercise of due care and who is not a passenger or in the employ of such corporation, it shall be punished by a fine of not less than five hundred nor more than ten thousand dollars which shall be recovered by an indictment prosecuted within one year after the time of the injury which caused the death, and shall be paid to the executor or administrator, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin; but a corporation which operates a railroad shall not be so liable for the death of a person while walking or being upon its railroad contrary to law or to the reasonable rules and regulations of the corporation. Such corporation shall also be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars, which shall be assessed with reference to the degree of culpability of the corporation or of its servants or agents, and shall be recovered in an action of tort, begun within one year after the injury which caused the death, by the executor or administrator of the deceased for the use of the persons hereinbefore specified in the case of an indictment. * * * But no executor or administrator shall, for the same cause, avail himself of more than one of the remedies given by the provisions of this section.’

The plaintiff relied upon two grounds of liability: (1) The alleged negligence of a crossing tender in the employ of the defendant and in charge of lowering gates to warn travelers of the approach of trains, and (2) the alleged failure on the part of those in control of the locomotive to give the signals required by St. 1906, c. 463, part 2, § 147 (now G. L. c. [251 Mass. 258]160, § 138), to be given when a locomotive approaches and goes over a crossing at grade with a public way. It was provided by St. 1906, c. 463, part 2, § 245 (now G. L. c. 160, § 232), that:

When the life of a person was lost at such a grade crossing through collision with an engine of a railroad corporation, and it appeared that the corporation did not give such signals and that the failure to give such signals contributed to such loss of life, ‘the corporation shall be liable * * * to a fine recoverable by indictment as provided in section sixty-three of part 1, or * * * 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 * * * was, at the time of the collision guilty of gross or willful negligence, or was acting in violation of the law, and that such gross or willful negligence or unlawful act contributed to the injury.’

[1] The defendant seasonably filed a motion that a verdict be directed in its favor. That motion was denied. No grounds seem to have been stated at the trial on which it was urged that the motion ought to have been granted. It does not appear that the presiding judge required counsel for the defendant to specify the propositions of law on which he relied. Therefore the defendant in this court may raise any question of law actually involved in such motion, even though not referred to or not thought of at the trial. Parrot v. Mexican Central Railway, 207 Mass. 184, 190, 93 N. E. 590,34 L. R. A. (N. S.) 261;Proctor v. Dillon, 235 Mass. 538, 540,129 N. E. 265.

The defendant argues that the damages here sought to be recovered are in the nature of a penalty or fine and hence cannot be recovered of the defendant under the controlling federal statutes and rules.

[2] The government of the United States was in control and operation of the railroad at the time here in question. It is only by reason of the federal law that any action can be brought against the defendant, and it can be maintained only for grounds and to the extent authorized by that law. The federal government cannot be impleaded in any counts except to the extent and upon the terms to which it has consented.Keegan v. Director General of Railroads, 243 Mass. 96, 99, 137 N. E. 341;Davis v. Slocomb, 263 U. S. 158, 160, 44 S. Ct. 59, 68 L. Ed. 226.

Resort must be had to the decisions of the Supreme Court of the United States to determine the nature and scope of the liability to which the defendant may be subjected. It was said in Director General v. Kastenbaum, 263 U. S. 25, 27, 44 S. Ct. 52, 53 (68 L. Ed. 146), after quoting section 10 of the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115 3/4j):

‘By General Order No. 50, the executive so limited suits to be brought against carriers for injuries to person or property under the section as to exclude those for recovery of fines, penalties and forfeitures. As we said in Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554, 563: ‘The government undertook as carrier to observe all existing laws; it undertook to compensate any person injured through a departure by its agents or servants from their duty under such law; but it did not undertake to punish itself for any departure by the imposition upon itself of fines and penalties or to permit any other sovereignty to punish it.’'

It further was said in the opinion in the Ault Case, 256 U. S. at page 563,41 S. Ct. 597,65 L. Ed. 1087:

‘There is nothing either in the purpose or the letter of these clauses [of the federal law] to indicate that Congress intended to authorize suit against the government for a penalty, if it should fail to perform the legal obligations imposed.’

And at page 564:

‘The purpose for which the government permitted itself to be sued was compensation, not punishment. In issuing General Order No. 50, the Director General was careful to confine the order to the limits set by the act, by concluding the first paragraph of the order: ‘Provided, however, that this order shall not apply to actions, suits, or proceedings for the recovery of fines, penalties, and forfeitures.’ Wherever the law permitted compensatory damages they may be collected against the carrier while under federal control. * * * But double damages, penalties and forfeitures, which do not merely compensate but punish, are not within the purview of the statute.'

[3] The nature of an action like that at bar for death damages under St. 1906, c. 463, part 1, § 63, and kindred statutes, has been discussed in numerous of our decisions. At commonlaw the death of a human being could not be the subject of an action at law of any kind. All actions founded on such death are the creatures of statute. Such actions, therefore, depend for their nature entirely upon the terms of the enabling statute. Carey v. Berkshire Railroad, 1 Cush. 475,48 Am. Dec. 616;Duggan v. Bay State Street Railway, 230 Mass. 370, 376, 119 N. E. 757, L. R. A. 1918E, 680; Admiralty Commissioners v. Amerika Steamship, [1917] A. C. 38; Western Fuel Co. v. Garcia, 257 U. S. 233, 240,45 S. Ct. 89,66 L. Ed. 210. The earlier statutes of this commonwealth authorizing recovery on account of death restricted the remedy to indictment alone. As to railroads, the remedy was subsequently enlarged by giving a civil remedy in addition to the remedy by indictment. By the terms of said section 63 already quoted, under which the present action is brought, the executor or administrator of a person killed in the circumstances disclosed on this record has the choice of invoking the remedy by indictment or of bringing an action at tort, but cannot avail himself of more than one. The history of our statutes on this subject is set forth in great detail in Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 71 N. E. 66, and in Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 86 N. E. 289. It need not be repeated. It hardly could be thought that a remedy by indictment was anything other than for the ‘recovery of fines,...