Cressey v. Erie R. Co.

• Decision Date: 03 March 1932
• Citation: 278 Mass. 284,180 N.E. 160
• Parties: CRESSEY v. ERIE R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 284

180 N.E. 160

CRESSEY

v.ERIE R. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1932.

Appeal from Appellate Division of Districts Courts, Northern District; Robert Wolcott, Special Judge.

Action by Fred L. Cressey against the Erie Railroad Company. From an order dismissing the report, defendant appeals.

Order affirmed.

Carpenter, Nay & Caiger and Frank H. Harding, Jr., all of Boston, for appellant.

H. C. Dunbar, of Boston, for appellee.

RUGG, C. J.

The plaintiff is and has been at all times here material a resident of this Commonwealth. The defendant is a foreign corporation, having no agent or place of business within the Commonwealth. The action is in contract to recover the value of a car of hay alleged to have been sold wrongfully and against the rights of the plaintiff by the defendant to pay freight and demurrage charges. The defendant appeared specially and filed a motion to dismiss the action on the ground that the court had no jurisdiction over it. The facts set forth in the motion, accepted as true for the purpose of the hearing, are these in substance: No service of process has been made within the Commonwealth on the defendant or any of its officers. The Boston and Maine Railroad was summoned as trustee in the writ and an effectual attachment was made of money of the defendant in its hands, to the amount of $500. Those funds arose out of interstate commerce, transactions and balances. The plaintiff's action was brought in the county where the attachment was made. The contract out of which the plaintiff's cause of action arises was made in New York, and the cause of action arose in Georgia. To try the case in this Commonwealth would necessarily entail the absence from their duties of employees of the defendant and of connecting carriers for prolonged periods, whereas, if the case were tried in the jurisdiction where the cause of action arose or where the defendant has a usual place of business, it would be no hardship on the defendant, nor interfere with the efficiency and operation of its railroad. The conclusion urged is that the action in an unreasonable burden on interstate commerce, that the statute allowing the attachment of property in this Commonwealth is void so far as applicable to this case, and that therefore the court is without jurisdiction.

The action was brought under G. L. c. 227, § 1. It is there provided in substance that a personal action may be maintained against a nonresident not served with process, provided an effectual attachment of his property within the Commonwealth has been made upon the original writ, but the judgment shall be valid only to secure the application of the property so attached to the satisfaction of the judgment. Lowrie v. Castle, 198 Mass. 82, 89, 83 N. E. 1118.Cheshire National Bank v. Jaynes, 224 Mass. 14, 112 N. E. 500. The attachment was made pursuant to G. L. c. 246, §§ 1, 4. Koontz v. Baltimore & Ohio Railroad, 220 Mass. 285, 288, 107 N. E. 973. It has not been argued that there has been any failure to comply with all provisions of our statutes. That is conceded so far as concerns the questions here raised by the form and substance of the motion filed by the defendant.

The defendant states at the outset of its brief that the validity of G. L. c. 246, § 1, is not being attacked but that its contention is that said section interferes unreasonably with the commerce clause of the Constitution of the United States (article 1, § 8, cl. 3), or United States Revised Statutes, § 5268 [§ 5258 (45 USCA § 84)], or the Interstate Commerce Act (24 U. S. Sts. at Large, 379, as amended [49 USCA § 1 et seq.]). The defendant, however, makes no further reference to these statutes of the United States. Its arguments are based exclusively on the contention that it would be an undue and therefore unlawful burden on interstate commerce to require the defendant to defend this action in the courts of this Commonwealth.

The question to be decided touches interstate commerce. Therefore resort must be had to decisions by the Supreme Court of the United States for the governing principles, so far as they can there be found. The defendant relies mainly upon several of the recent adjudications of that court. In Davis v. Farmers Co-operative Equity Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996, action was brought by a resident of Kansas in the courts of Minnesota on a cause of action in no way connected with Minnesota, which arose in Kansas against an interstate carrier incorporated under the laws of Kansas, not owning or operating any railroad in Minnesota but maintaining there an agent for solicitation of traffic. A statute of Minnesota authorized service on such an agent. It was held that the action could not be maintained because it would be an undue burden upon interstate commerce. As indicating that the decision was confined to the facts of the case, it there was said, pages 316, 317 of 262 U. S.,43 S. Ct. 556, 558: ‘The fact that the business carried on by a corporation is entirely interstate in character does not render the corporation immune from the ordinary process of the courts of a state. International Harvester Co. v. Kentucky, 234 U. S. 579, 34 S. Ct. 944, 58 L. Ed. 1479. The requirements of orderly, effective administration of justice are paramount. * * * It may be that a statute like that here assailed would be valid, although applied to suits in which the cause of action arose elsewhere, if the transaction out of which it arose had been entered upon within the state, or if the plaintiff was, when it arose, a resident of the state. * * * But orderly, effective administration of justice clearly does not require that a foreign carrier shall submit to a suit in a state in which the cause of action did not arise, in which the transaction giving rise to it was not entered upon, in which the carrier neither owns nor operates a railroad, and in which the plaintiff does not reside.’ In Atchison, Topeka & Santa Fe Railway v. Wells, 265 U. S. 101, 44 S. Ct. 469, 68 L. Ed. 928, a citizen and resident of another State attempted to prosecute in Texas a cause of action which arose elsewhere against an interstate carrier, incorporated under the laws of still another State, not operating nor owning a railroad in Texas and not consenting to be sued there, jurisdiction being sought on the ground of property and funds of the carrier garnisheed in Texas. It was held that the maintenance of an action in those circumstances would be an undue burden upon interstate commerce. In Michigan Central Railroad v. Mix, 278 U. S. 492, 49 S. Ct. 207, 209, 73 L. Ed. 470, the railroad was incorporated in Michigan; no part of its line ran into Missouri; it did not do business there, and had not consented to be sued there; the cause of action arose in Michigan because of the death of a resident of that State in the employ of the railroad corporation; the widow of the decedent removed to Missouri, was there appointed administratrix of the estate of her deceased husband, and brought action against the railroad corporation in Missouri. It was said that the widow ‘had become a resident in Missouri after the injury complained of, but before instituting the action. For aught that appears her removal to St. Louis shortly after the accident was solely for the purpose of bringing the suit, and because she was advised that her chances of recovery would be better there than they would be in Michigan. The mere fact that she had acquired a residence within Missouri before commencing the action does not make reasonable the imposition upon interstate commerce of the heavy burden which would be entailed in trying the cause in a State remote from that in which the accident occurred and in which both parties resided at the time.’ This case was followed in Denver & Rio Grande Western Railroad v. Terte, 284 U. S. 284, 52 S. Ct. 152, 76 L. Ed. 295, where similar facts were presented. See Thurman v. Chicago, Milwaukee & St. Paul Railway, 254 Mass. 569, 151 N. E. 63, 46 A. L. R. 563.

We think that the case at bar differs from all those decisions in the material fact that here the plaintiff was at the time of his initial transaction with the defendant, and at all times since has been, a resident of this Commonwealth. He has made no removal of residence since his original contract with the defendant, and has not sought relief in the courts of any foreign jurisdiction. He is asking redress for his grievance in the courts of the State where he has continuously resided.

The plaintiff relies upon certain other Federal decisions. In Davis v. Cleveland, Cincinnati, Chicago & St. Louis Railway, 217 U. S. 157, 30 S. Ct. 463, 54 L. Ed. 708,27 L. R. A. (N. S.) 823,18 Ann. Cas. 907, the cause of action, which was to recover damages for causing the death of the plaintiff's testator, arose in Illinois; the defendant was incorporated under the laws of Indiana and Ohio and did business in those States and in Illinois, but did not do business in Iowa; the plaintiff as executor was a resident of Iowa and brought action in the courts of the State of his residence and attached cars of the defendant used in interstate commerce and garnisheed moneys due to the defendant under interstate commerce. The decision of the court was confined to holding that the cars attached and the amounts due from the garnisheed companies were not exempt from attachment by reason of interstate commerce. It was said at page 179 of 217 U. S.,30 S. Ct. 463, 469: ‘The state may pass laws enforcing the rights of its citizens which affect interstate commerce, but fall short of regulating such commerce in...