Boston & M. R. R. v. Hurd

• Citation: 108 F. 116
• Decision Date: 23 April 1901
• Docket Number: 360.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Parties: BOSTON & M.R.R. v. HURD.

108 F. 116

BOSTON & M.R.R. v. HURD.

No. 360.

United States Court of Appeals, First Circuit.

April 23, 1901

[Copyrighted Material Omitted]

John S H. Frink (Edgar J. Rich, on the brief), for plaintiff in error.

Edward H. Savary, for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and BROWN, District Judge.

PUTNAM Circuit Judge.

This suit was brought in the circuit court for the district of New Hampshire by the administrator of Alice M. Hurd, who was a passenger of the Boston & Maine Railroad, and was killed in Massachusetts by one of its locomotives while crossing its track, making connection from one train to another. At the time of her death she was a resident of Massachusetts. The plaintiff below recovered a verdict and a judgment thereon. The declaration alleged that she was 'thrown, injured suffered excruciating agony, and lost her life while such passenger,' all by reason of the negligence of the defendant corporation. Administration was obtained in New Hampshire. The plaintiff in error was incorporated by concurrent action of several states, including Massachusetts and New Hampshire, and is of the class of corporations described in Nashua & L. R. Corp. v. Boston & L. R. Corp., 136 U.S. 356, 10 Sup.Ct. 1004, 34 L.Ed. 363, and in Smith v. Railroad Co. (C.C.) 96 F. 504. The plaintiff below is a citizen of Massachusetts, so that, so far as the mere matter of diverse citizenship is concerned, the suit was properly brought in the district of New Hampshire. The propositions submitted to us by the plaintiff in error in this behalf have been so fully determined as to need no further discussion.

A number of minor questions were raised by the plaintiff in error at the trial, but none of them have been submitted to us in such form as require our attention. The suit was, by amendment, left to rest on a statute of Massachusetts, and the substantial questions which have been argued before us are: Whether that statute is not strictly penal, so that the proceedings which it authorizes cannot be taken in the federal courts, or in courts of foreign states; whether the administration granted in New Hampshire was valid, and whether, under the local laws of New Hampshire, the question of its validity can be raised collaterally; whether the deceased was guilty of negligence, and, if so, whether that negligence is a valid defense; and, finally, whether the case is barred by the limitation contained in the statute of Massachusetts on which it finally rested. We are compelled to direct that the verdict be set aside, and the judgment of the court below reversed, by reason of our answer to the last question; but, as it is impossible to foresee what phases the case may assume in the future, we deem it advisable to express our views on the other questions which we have stated.

The most important one we have to deal with is whether the Massachusetts statute is strictly penal. It is not sufficient that it is in the nature of a penal statute. The distinction between a statute strictly penal, or qui tam, and one in the nature of a penal statute, is pointed out in Huntington v. Attrill, 146 U.S. 657, 13 Sup.Ct. 224, 36 L.Ed. 1123. The proper test is that, if it is strictly penal, the remedy is subject to the control of the executive of the state by which the proceeding was authorized, and it may be at any time, either before or after judgment, annulled by a pardon. That its essential nature in this respect is not changed by a judgment was determined in Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 8 Sup.Ct. 1370, 32 L.Ed. 239.

The statutory remedy on which this suit relies is found in Pub. St. Mass. 1882, c. 112, Sec. 212. The section is divisible into two parts, the first of which provides that the corporation shall be punished by fine. It fixes a maximum and minimum penalty, without any guide for determining where the fine shall rest between the extremes. It is to be recovered by indictment, and prosecuted within one year from the time of the injury. Being by indictment, there is no occasion to indicate in the statute by what rule the court shall be guided in determining the amount of the fine as between the extremes named. In this respect, the court is left, as in ordinary proceedings where a maximum and minimum fine is created by statute, to determine its amount by the degree of criminality. This is peculiarly appropriate to a statute strictly penal, because the question of the extent of a fine or other punishment is properly governed by local considerations, acting upon judicial discretion, thus imposing a duty which a foreign court cannot well perform. The statute further provides that the fine shall be paid to the executor for the use of the widow and child, or, if no widow or child, to the next of kin. This, and all the other peculiarities to which we have referred, are indicia of a strictly penal statute, because, while the next of kin may possibly have an interest in the life of the person deceased, yet they do not necessarily, and the statute admits no inquiry whether or not they may have any.

It is settled that the mere fact that the proceeding is by indictment does not necessarily determine its intrinsic purpose; yet, if the statute stopped there, it would seem impossible that there could be any proceedings in any other state than that where it was enacted. When a state sees fit to interpose its grand jury, and makes that an essential part of the proceeding, it is difficult to perceive how any other state could substitute other process therefor. In the case on which subsequent cases have been built up, Dennick v. Railroad Co., 103 U.S. 11, 26 L.Ed. 439, which held that an administrator appointed under the laws of New York might bring an action for death arising under the statutes of New Jersey, the court was careful to rely on the fact that the right of action was not limited by the statutes of New Jersey to the personal representatives of the deceased appointed in that state; but this rule is not broad enough to reach a case where an indictment is required. In Stewart v. Railroad Co., 168 U.S. 445, 18 Sup.Ct. 105, 42 L.Ed. 537, it was held that an action might be brought in the District of Columbia by an administrator there appointed, the action being based on a statute of Maryland giving damages arising out of a death, although the statute directed that suit should be brought in the name of the state. The statute, however, gave an action strictly civil, and for damages suffered by the relatives for whose benefit the suit was to be brought; and the supreme court held that, as the state was only a nominal party, the question of who should be plaintiff was not a substantial one. The opinion, however, reaffirmed the rule stated in Pollard v. Bailey, 20 Wall. 520, 22 L.Ed. 376, and in Bank v. Francklyn, 120 U.S. 747, 7 Sup.Ct. 757, 30 L.Ed. 825, that, where a statutory remedy is given, and the suit is brought in another state than that which enacted the statute, all its substantial terms must be obeyed.

It is not necessary to go back in the legislation of Massachusetts to the origin of the first portion of section 212, c. 112, of the Public Statutes, to which we have referred. It was re-enacted in Acts 1881, c. 199, from Acts 1874, c. 372, Sec. 163. The civil remedy, which appears in the latter portion of section 212, is first found in sections 1 and 6 of chapter 199 of the Acts of 1881, so that the remedy by indictment preceded the remedy by civil action. Not only, however, does the latter portion of section 212 confine the party prosecuting to elect between an indictment and a civil action, but in Littlejohn v. Railroad Co., 148 Mass. 478, 482, 20 N.E. 103, 2 L.R.A. 502, it was held that the civil action is merely a substitute for the indictment. The various re-enactments contain no substantial changes. The act of 1874 by implication provided that the indictment would lie, although the passenger deceased was not using due diligence. So, also, did section 1 of the act of 1881, giving a civil remedy. This was not in terms repeated in the latter portion of section 212 of chapter 112 of the Public Statutes, but undoubtedly what appears on this point in its first part is intended to cover the whole section. Although the act of 1881 afforded a civil action, it was in all other respects on all fours with the proceeding by indictment. To emphasize that fact, it provided that the damages should be assessed with reference to the degree of culpability of the corporation, which, of course, was not necessary in those portions of the various statutes which related to an indictment. Therefore it would seem that, if one part of section 212 is strictly penal in its purpose, the other must be.

On the other hand, in Stewart v. Railroad Co., 168 U.S 445, 18 Sup.Ct. 105, 42 L.Ed. 537, to which we have already referred, it was held that a suit which the statutes of Maryland authorized to be brought, although in the name of the state, was not penal in the international sense. The statute, however, as we have said, limited the remedy to the damages suffered. Brady v. Daly, 175 U.S. 148, 20 Sup.Ct. 62, 44 L.Ed. 109, was an action brought for an infringement of an operatic composition, in which it was held that the statutory amount is not strictly penal. At page 157, 175 U.S.,page 65, 20 Sup.Ct.,and page 113, 44 L.Ed., the opinion observes that, although punishment of the infringer may be the result of the statute, yet that was not its chief purpose, and that the minimum named in the statute was fixed because of the inherent difficulty of proving by satisfactory evidence the damages actually sustained. Also, in Railway Co. v. Humes, 115 U.S. 512, 6 Sup.Ct. 110, 29 L.Ed. 463, where the statute gave a person injured by the omission of a...