le Brun v. Boston & M. R. R.

• Decision Date: 01 December 1925
• Citation: 131 A. 441
• Parties: LE BRUN v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

131 A. 441

LE BRUN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

Dec. 1, 1925.

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Case for personal injuries by Thomas H. Le Brun against the Boston & Maine Railroad. The injuries were received on August 7, 1917, while road was being operated by a temporary receiver. Case transferred from the trial term on defendant's exceptions. Exceptions overruled.

The writ is dated July 7, 1923. The declaration alleges negligence of the defendant. In January, 1925, the plaintiff was allowed to amend by alleging negligence of the receiver for which the defendant is answerable. The defendant excepted.

The question whether the plaintiff can maintain the suit was transferred without ruling by Sawyer, J.

Other facts appear in the opinion.

Robert W. Upton and Edward C. Niles, both of Concord, for plaintiff.

Demond, Woodworth, Sulloway & Rogers and Jonathan Piper, all of Concord, for defendant.

PEASLEE, C. J. The plaintiff seeks to recover damages for injuries suffered while in the employ of a receiver who was operating the defendant's railroad. After the discharge of the receiver, and within the time granted to plaintiffs in general to commence suit, he brought this action against the only party then existent who in any way stood in the place of his employer. The defense is that the course of the receivership proceedings has been such as to deprive him of the usual right to maintain suit. Whatever the authority of courts of equity to shorten statutes of limitation or destroy causes of action may be, it is manifest that there should be no presumption in favor of the exercise of such authority. As was said in a case involving these receivership proceedings:

"The federal decree is construed as intends ing to protect rather than defeat claimants fairly entitled to litigate their claims." Watkins v. Railroad, 81 N. H. 363, 364, 127 A. 701, 702.

The receivership proceedings were nominally instituted by a creditor; but, as the opinion of the justice who had the matter in charge states:

"The ground upon which a receiver * * * was appointed was not that its assets did not exceed in value the amount of its debts, but that the corporation was not able to meet its obligations as they matured."

It was a measure to protect the railroad, and there was no purpose to liquidate and distribute the assets. In course of time the railroad appeared to be able to go on without further protection from its creditors, and the receiver was discharged and the property returned to the corporation.

In the decree for ending the receivership it was ordered that the railroad "assume all the obligations and liabilities of the said receiver to any person or corporation." It was further ordered that notice be given by publication to all claimants that they must present their claims within about two months from the date of the order "or be barred from prosecuting them in these proceedings." The required notice was given, and the plaintiff did not present his claim.

The fair intendment of the order seems to be that the railroad was to stand in the place of the receiver as to all his liabilities, and that claimants who wished to insist upon proceedings against the receiver must do so within the limited time. Thereafter they must look to the railroad as the responsible defendant.

The decree broadly provides for the railroad's assumption of all the receiver's "obligations and liabilities" "to any person or corporation other than itself." It then specifically enumerates the assumption of contracts made by the receiver, the assumption in its own name of the prosecution and defense of all pending litigation to which the receiver was a party, the assumption of "all obligations of said receiver to other railroads or to any person or corporation whatever arising out of the operation of its railroads during any period of said receivership," and of all "liabilities and obligations of said receiver, contractual or otherwise," to the agencies acting under federal control of railroads. All of these special classifications are subordinate to and embraced within the general requirement first set forth, and are evidently designed to illustrate its broad scope. If the special requirements were distinct from and additional to the general one, the later ones would have been restricted to other subject-matter.

Several cases, notably those from Massachusetts, are relied upon to support the defendant's claim of nonliability. In the earliest of these, no facts like those here presented appear. The sole ground of recovery was the taking over of the property by the railroad. Even on those facts, the holding of nonliability was by a divided court. Archambeau v. Railroad, 170 Mass. 272, 49 N. E. 435. In Tobin v. Railroad, 185 Mass. 337, 70 N. E. 431, there was a rather colorable sale of the property to a new corporation, which took subject "to the lien" of the receiver's liabilities. Responsibility of the railroad because of this stipulation was denied because the plaintiff was not a party to the transaction; and the Massachusetts doctrine that a third party cannot sue upon a promise made for his benefit was relied upon. To the claim that the equities were all with the plaintiff, and that in some form of proceeding he was entitled to equitable" relief, the answer was made that as to that phase of the case the matter could best be dealt with in Vermont, where the receivership proceedings had been carried on, and that there was no rule of law requiring Massachusetts to take jurisdiction.

Graves v. Railroad, 246 Mass. 459, 141 N. E. 116, involves the decree here under consideration. It is there said that—

"Every argument here urged in behalf of the plaintiff is completely answered by these decisions."

If this is true, it must be that the details of the decree were not before the court. These matters are not touched upon in the earlier cases,...