Genga v. New York, N.H.&H.R. Co.

• Decision Date: 29 November 1922
• Citation: 137 N.E. 637,243 Mass. 101
• Parties: GENGA v. NEW YORK, N. H. & H. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 101

137 N.E. 637

GENGA

v.NEW YORK, N. H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 29, 1922.

Report from Superior Court, Hampden County; Nelson P. Brown, Judge.

Action of tort by Cesare Genga against the New York, New Haven & Hartford Railroad Company to recover damages for alleged assault and malicious prosecution, in which a motion to amend by substituting as defendant James C. Davis, Agent designated by the President under the Transportation Act of March, 1920, was allowed. The substituted defendant's motion to dismiss was disallowed, and the case reported for determination of the questions thereby raised by the Supreme Judicial Court. Exceptions overruled.

The motion to dismiss was on the grounds: (1) That under the laws of the United States the court was without jurisdiction; (2) that the proceedings had in the action seeking to make Davis a party defendant by amendment or substitution, and the issuance and service of the writ summoning him to appear, were null and void, because in conflict with the laws of the United States; (3) that the proceeding against such defendant was not instituted within the time prescribed, nor in the manner provided by such laws, which laws exclusively governed plaintiff's right, if any; (4) that the provisions of the Massachusetts Gen. Laws, in so far as they purported to authorize the proceedings taken against such defendant, were repugnant to the laws of the United States, and the proceedings thereunder were null and void; (5) that it appeared from the record of the return of the writ that service was not made in accordance with the provisions of the laws of the commonwealth, and therefore was null and void.George F. Leary, George D. Cummings, and George F. Palmer, all of Springfield, for plaintiff.

Madison G. Gonterman, of Boston, for defendant.

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 & Hartford Railroad, 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 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. 18a in this particular raise no barrier to the plaintiff. See Keegan v. Director Gen. (Mass.) 137 N. E. 341.

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 465,64 Am. Dec. 83;Jackson v. Old Colony Street Railway, 206 Mass. 477, 486, 92 N. E. 725,30 L. R. A. (N. S.) 1046,19 Ann. Cas. 615; and for malicious prosecution instituted pursuant to the general duty of its employee, Reed v. Home Savings Bank, 130 Mass. 443, 39 Am. Rep. 468;White v. Apsley Rubber Co., 194 Mass. 97, 80 N. E. 500,8 L. R. A. (N. S.) 484.

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, 132 N. E. 30;Missouri Pacific Railroad v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087. 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, 107 N. E. 60, 12 A. L. R. 683, 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, § 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, 69 N. E. 1054;Lester v. Lester, 8 Gray, 437;Knights v. Treasurer & Receiver General, 236 Mass. 336, 341, 128 N. E. 637;McLaughlin v. West End Street Railway Co., 186 Mass. 150, 71 N. E. 317;Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461;Tracy v. Boston & Northern Street Railway, 204 Mass. 13, 16, 90 N. E. 416.

It was held in AEtna Mills v. Director General of Railroads, 242 Mass. 255, 136 N. E. 380, after full discussion, with ample citation of authorities, that under the Federal Control Act. 40 U. S. Stats. at Large, 451, § 10 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115 3/4 j), and the Transportation Act of 1920, 41 U. S. Stats. at Large, 456, § 206(b), the state practice was imported into proceedings 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 the corporation named originally as defendant. No question as to any statute of limitations was raised or considered in that case.

The question presented in the case at bar is whether, under the controlling federal statutes upon the facts here disclosed, the amendment, bringing in the federal Agent as party defendant in substitution for the corporation originally named, lawfully could have been allowed.

The decision of this question is governed by the federal statutes and is federal in its nature, upon which the adjudication of the United States Supreme Court is final. Seaboard Air Line v. Renn, 241 U. S. 290, 293, 36 Sup. Ct. 567, 60 L. Ed. 1006. It involves consideration of two matters: (1) Whether the causes of action are those for which the United States in control of the railroad is liable in damages; and (2) whether the federal Agent lawfully could, under the statutes of the United States, have been made a party defendant by amendment at the time and under the circumstances here disclosed.

(1) The United States was in control of the railroad property of the corporation and solely liable for wrongs such as are here the subject of complaint committed in the operation thereof. Missouri Pacific Railroad v. Ault, 250 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087. The United States therefore can be held liable to actions only upon the exact terms and in the precise manner declared by the acts of Congress and proclamations of the President and orders pursuant thereto. McArthur Bros. Co. v. Commonwealth, 197 Mass. 137, 83 N. E. 334; Keegan v. Hines, supra; Public Service Commission v. New England Telephone & Telegraph Co., 232 Mass. 465, 122 N. E. 567, 4 A. L. R. 1662;Reid v. United States, 211 U. S. 529, 538, 29 Sup. Ct. 171, 53 L. Ed. 313;Schillinger v. United States, 155 U. S. 163, 166, 15 Sup. Ct. 85, 39 L. Ed. 108.

The corporation, if operating itself and not under federal control, would have been liable under the common law for the causes of action here set forth.

It is indubitable that under the common law of this commonwealth a railroad corporation is liable in damages for assault committed by its servants in the performance of their duties acting within the scope of their employment. Moore v. Fitchburg Railroad, 4 Gray, 465, 64 Am. Dec. 83;McKeon v. New York, New Haven & Hartford Railroad, 183 Mass. 271, 67 N. E. 329,97 Am. St. Rep. 437;Jackson v. Old Colony Street Railway, 206 Mass. 477, 92 N. E. 725,30 L. R. A. (N. S.) 1046,19 Ann. Cas. 615;Gentile v. Boston Elevated Railway, 217 Mass. 113, 104 N. E. 382;Hayne v. Union Street Railway, 189 Mass. 551, 76 N. E. 219,3 L. R. A. (N. S.) 605, 105 Am. St. Rep. 655;New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 647, 7 Sup. Ct. 1039, 30 L. Ed. 1049. See Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311. The allegations of the first count of the plaintiff's declaration bring his case within that principle. If the assault is committed by the servant, not in the course of his employment but outside the scope of his duties, or in a spirit of vindictiveness or to gratify personal animosity, or to carry out an independent purpose of his own, then the corporation is not liable. That, however, is a defense to be developed at the trial. McGilvray v. West End Street Railway, 164 Mass. 122, 41 N. E. 116;Brown v. Boston Ice Co., 178 Mass. 108, 59 N. E. 644,...