Genga v. Director General of Railroads

• Decision Date: 27 November 1922
• Citation: 243 Mass. 101
• Parties: CESARE GENGA v. DIRECTOR GENERAL OF RAILROADS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 101

CESARE GENGA v. DIRECTOR GENERAL OF RAILROADS.

Supreme Judicial Court of Massachusetts, Hampden.

November 27, 1922

September 21, 1922.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & JENNEY, JJ.

Practice, Civil Amendment. Federal Control of Railroad. Assault and Battery. Malicious Prosecution.

According to the practice in this Commonwealth, it is within the power of the Superior Court to allow an amendment in an action substituting a new defendant for the defendant originally named in the writ, although an action begun against such new defendant at the time of the allowance of the amendment would be barred by the statute of limitations.

A railroad corporation can be held liable in an action of tort for assault and battery of the plaintiff committed by its employee within the scope of his employment.

A railroad corporation can be held liable in an action of tort for malicious prosecution of the plaintiff by its employee within the scope of his employment. The United States, in control of a railroad under the Federal Control Act,

40 U.S. Sts. at Large, 451, is liable for compensatory damages resulting from an assault and battery committed by an employee within the scope of his employment under the Director General of Railroads, and for compensatory damages resulting from a malicious prosecution instituted by such an employee within the scope of his employment.

Under the Federal Control Act, 40 U.S. Sts. at Large, 451, General Orders of the Director General of Railroads, No. 50 and 50-A, and Section 206, a, d, of the Transportation Act (1920), 41 U.S Sts. at Large, 456, it was proper for the Superior Court, in an action begun on July 15, 1919, against the New York, New Haven and Hartford Railroad Company, for assault and battery upon and malicious prosecution of the plaintiff on

September 16, 1918 by employees of the defendant acting within the scope of their employment, to allow on December 19, 1921, an amendment substituting as defendant "James C. Davis, agent designated by the

President under the Transportation Act of March, 1920, for the New York, New Haven and Hartford Railroad," although the Director General of

Railroads had not been named as an original defendant and although, if an original action for the assault and battery had been begun against such agent at the time of the allowance of the amendment, it would have been barred by G.L.c. 260, Section 4.

TORT, with a declaration in two counts, the first count being for damages resulting from alleged assault and battery of the plaintiff on September 16, 1918, committed by "a servant of the defendant acting within the course of the defendant's employ ment," and the second count being for malicious prosecution of the plaintiff by the defendant "by its agents or servants" on the same day. Writ dated July 15, 1919.

The defendant originally named in the writ was the New York, New Haven and Hartford Railroad Company. A motion to amend was allowed on December 19, 1921, which substituted for the corporation as defendant "James C. Davis, agent designated by the President under the Transportation Act of March, 1920, for the New York, New Haven and Hartford Railroad." Process against the new defendant was issued on December 19, 1921, and was served on the same day. The new defendant filed a motion to dismiss the action, setting forth the following grounds:

"1. That under the laws of the United States, this Court is without jurisdiction to entertain this action as against the above named defendant.

"2. That the proceedings heretofore had in this action, seeking to make the said James C. Davis, Agent, a party defendant in this action by amendment or substitution, and the issuance and service of the writ herein summoning him to appear and take upon himself the defense of this action as a party defendant, are null and void because in violation of and in conflict with the laws of the United States.

"3. That this proceeding against the above named defendant was not instituted within the time prescribed nor in the manner provided by the laws of the United States, which laws exclusively govern the plaintiff's right, if any, to maintain an action against the above named defendant.

"4. That the provisions of the General Laws of this Commonwealth, under which authority was exercised to issue the summons herein to the above named defendant, in so far as said provisions purport to authorize the proceedings herein against the above named defendant, are repugnant to the laws of the United States, and, therefore, said proceedings are null and void and without the authority of law.

"5. That it appears from the record of the return of the writ herein issued to the above named defendant that the service of said writ was not made in accordance with the provisions of the laws of this Commonwealth and therefore, said service is null and void."

The motion was beard by N. P. Brown, J., and was denied; and, being of opinion that the ruling thus made raised important and substantial questions of law which ought to be determined by this court before further proceedings in the Superior Court, the judge reported the action for such determination.

M. G. Gonterman, for the defendant.

G. F. Leary, G.

D. Cummings & G.

F. Palmer, for the plaintiff, submitted a brief.

RUGG, C.J. This is an action of tort wherein the plaintiff, a resident of Springfield in our county of Hampden, seeks to recover damages for alleged assault and malicious prosecution occurring about September 16, 1918. The record does not disclose the place of the alleged assault. The malicious prosecution is alleged to have been in the United States District Court at Boston. It cannot be presumed under these circumstances that the injuries occurred outside this Commonwealth and no contention of that nature has been made by the defendants. The action was begun by a writ sued out of the Superior Court, dated July 15, 1919, duly served upon the New York, New Haven and Hartford Rail road, hereafter designated as the corporation. The acts of which complaint is made occurred during the period of federal control of the corporation under the acts of Congress and proclamation of the President. The corporation appeared and answered, setting up the fact that its property and business were at the time alleged under federal control. Thereafter on December 19 1921, the plaintiff was allowed against the protest of the corporation to amend its writ and declaration by substituting "James C. Davis, agent designated by the President under the Transportation Act of March, 1920," as defendant in place of the corporation. Process issued to summon such agent, who appeared specially without consenting to the jurisdiction of the court and filed a motion to dismiss the action against him on several grounds. This motion was denied as matter of law and the questions thereby raised were reported for our consideration.

There is nothing in the record to indicate that the action is not brought in the county where the plaintiff resided at the time of the accrual of the cause of action. That point has not been urged. Hence General Orders No. 18 and No. 18-A in this particular raise no barrier to the plaintiff. See Keegan v. Director General of Railroads, ante, 96.

The writ and declaration set forth a cause of action within the jurisdiction of the Superior Court. A corporation can be held liable for assault committed by its servants in the course, of their employment, Moore v. Fitchburg Railroad, 4 Gray, 465, Jackson v. Old Colony Street Railway, 206 Mass. 477 , 486, and for malicious prosecution instituted pursuant to the general duty of its employee, Reed v. Home Savings Bank, 130 Mass. 443 , White v. Apsley Rubber Co. 194 Mass. 97 .

Plainly the corporation cannot be held liable for acts of persons in operation of its railroad and business under federal control. Nominsky v. New York, New Haven & Hartford Railroad, 239 Mass. 254 . Missouri Pacific Railroad v. Ault, 256 U.S. 554. That, however, does not affect the jurisdiction of the court over the cause of action or over the parties. The principle applied in Corbett v. Boston & Maine Railroad, 219 Mass. 351 , 356, is inapposite to these facts.

If the question be treated purely as one of State practice, it was within the power of the Superior Court to allow an amendment substituting a new defendant for the one first named even though an original action then brought against the new defendant would at that time be barred by the statute of limitations. The action for assault would have been barred by G.L.c. 260, Section 4, if action had not been brought before the motion to amend the writ and declaration was filed. But that fact does not as matter of law prevent the amendment substituting a new party defendant. The allowance of such an amendment under the State practice rests in sound judicial discretion. Hutchinson v. Tucker, 124 Mass. 240 . Silva v. New England Brick Co. 185 Mass. 151 . Lester v. Lester, 8 Gray, 437. McLaughlin v. West End Street Railway, 186 Mass. 150 . Cogswell v. Hall, 185 Mass. 455 . Tracy v. Boston & Northern Street Railway, 204 Mass. 13 , 16. Knights v. Treasurer & Receiver General, 236 Mass. 336 , 341.

It was held in AEtna Mills v. Director General of Railroads, 242 Mass. 255, after full discussion, with ample citation of authorities, that under the Federal Control Act, 40 U.S. Sts. at Large, 456, Section 10, and the Transportation Act (1920) 41 U.S. Sts. at Large, 461, Section 206 (b), the State practice was imported into proceedings in the State courts against the government of the United States for redress of grievances against it arising from its control of the railroads, and that by amendment the federal agent might be substituted for...