Hanley v. Eastern S.S. Co.
| Decision Date | 22 May 1915 |
| Citation | 221 Mass. 125,109 N.E. 167 |
| Parties | HANLEY v. EASTERN S. S. CO. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Suffolk County; William B. Stevens Judge.
Action by Charles A. Hanley as administrator, against the Eastern Steamship Company. Judgment for plaintiff, and defendant brings exceptions. Exceptions sustained.
Jos. A Dennison, Robt. Gallagher, and Chas. D. Driscoll, all of Boston, for plaintiff.
John T Hughes, of Boston, for defendant.
These are two actions of tort. In one the plaintiff seeks to recover damages for the conscious suffering and in the other the statutory penalty for the death of his intestate, alleged to have been caused by the defendant. The intestate lost his life in connection with being a passenger upon the Bay State, a steamship operated by the defendant between Boston and Portland.
1. A question as to the proper venue of the actions lies at the threshold. It is agreed that the damage and injury were received in Essex county, that the plaintiff and his intestate lived in Norfolk county and were employed as manager and assistant manager respectively in one of the departments of a large store in Suffolk county. Whether the actions rightly were brought in Suffolk county depends upon the meaning of 'usual place of business' in St. 1904, c. 320, R. L. c. 167, § 6, whereby it is provided that actions like these 'shall be brought in the county in
which the plaintiff lives or has his usual place of business, or in the county in which the alleged injury or damage was received.'
In determining the meaning of the statute
in this respect, its history is important. St. 1854, c. 322, first permitted transitory actions to be brought in the county where either party had his 'usual place of business,' but confined its operation to cases where all parties were residents of the commonwealth. St. 1856, c. 70, provided that where the plaintiff in a transitory action was a nonresident, the action might br brought in the county in which the defendant lived, or 'principally transacts his business, or follows his trade or calling, if he resides in this commonwealth.' But it did not affect St. 1854, c. 322. These two statutes both continued in force until 1860, when they were combined in chapter 123, § 1, of the General Statutes, in these words:
'Transitory actions, except in cases in which it is otherwise provided, if any one of the parties lives in the state, shall be brought in the county where some one of them lives or has his usual place of business.'
The reference to 'trade or calling' contained in St. 1856, c. 70, was omitted. The commissioners on revision, in their note to this section, give no information as to the purpose or intent of this change, although referring to another change made in the section. Interpreting the law as it stood from 1856 until the enactment of the General Statutes, it is to be observed that, in order to give full force and effect to all the words used in St. 1856, c. 70, as compared with St. 1854, c. 322, it must be presumed that the Legislature intended for the later act a broader scope than for the earlier. It is a well-recognized rule in the interpretation of statutes that, where reasonably possible, full force and effect should be given all the words used by the Legislature. Prior to 1854 all transitory actions could be brought only in the county in which one of the parties had his residence. When the venue was extended in 1854, it included the county of the usual place of business of either, where both parties resided within the commonwealth. It may well have been thought in 1856, when venue for nonresident plaintiffs was extended, that it might include not only the residence and place of business, but also place of employment, of resident defendants. If the question had arisen in 1859, it cannot well be doubted that the court would have held that 'usual place of business' as used in St. 1854, c. 322, had a more restricted signification than the words, 'in which he principally transacts his business or follows his trade or calling' of St. 1856, c. 70. The rational explanation of the action of the Legislature in enacting the General Statutes touching this subject, by employing only the words of the statute of 1854, and omitting entirely those contained in the St. 1856, appears to us to be that it was intended to recur to the meaning of the words of the earlier statute and discard the broader reference contained in the later statute. This is something more than a mere verbal change in the revision of a statute which would not affect its meaning Shawmut Commercial Paper Co. v. Brigham, 211 Mass. 72, 74, 97 N.E. 636), and reaches to a modification of the substance. This interpretation is confirmed by St. 1904, c. 320, which governs the venue of these actions. The purpose of that statute, as was pointed out in Sandler v. Boston Elev. Ry., 218 Mass. 333, 105 N.E. 980, was to relieve the courts of Suffolk county, in which many defendants in actions of negligence have a usual place of business, from the trial of actions where the alleged act of negligence happened in another county and the plaintiff resided and had his usual place of business in another county. Its manifest design was to diminish the number of trials which theretofore could be had in Suffolk county, and thus to save to that county what was felt to be a disproportionate expense in the maintenance of jury trials. It should be interpreted, so far as reasonably practicable, in such way as to further this design. The words, 'usual place of business,' apart from special circumstances throwing light upon their meaning, may be given a comprehensive meaning (Goddard v. Chaffee, 2 Allen, 395, 79 Am.Dec. 796), and have been held to include the usual place of labor or employment in the service of another, [1] although there are contrary decisions. [2] It follows that the words used in our statute, in the light of its history, do not include a place where one pursues a 'trade or calling.' The work of the plaintiff and the intestate in a department store comes rather within the description of 'trade or calling' than 'place of business.' It is employment as distinguished from business. Therefore the venue of these actions was laid improperly in Suffolk county. They should have been brought either in the county of the residence, which was Norfolk, or where the alleged act of negligence occurred, which was Essex.
As under R. L. 167, § 14, the actions may be transferred to the proper county and there tried again, other questions now fairly presented likely to arise in substance at a new trial are considered.
2. There was evidence tending to show that there was, on a deck of the steamship where passengers were permitted to go, a space, variously estimated at from three to five feet between a lifeboat on one side and a life raft on the other, where there was no rail, guard or protection to prevent a passenger from walking, being thrown of falling over the ship's side to the water; that, as the plaintiff's intestate, walking along at about 9 o'clock in the evening with a camp stool in his hand, was in the act of putting it down, the vessel gave a lurch and he fell overboard. If this evidence was believed, it was sufficient to support a finding of due care. It well may be found that a passenger upon an ocean-going steamship, during the voyage, may assume that no place where he is allowed to go will be left entirely without some construction to prevent a passenger from falling overboard.
3. The manner of the accident was not left wholly to surmise or conjecture. If the testimony just narrated were taken at its full value, it reasonably might have been thought to show that the plaintiff's intestate was caused to fall overboard by the lurch of the ship and not by his own volition or lack of attention.
4. It cannot be said as matter of law that he assumed the risk of such an injury. If the jury believed that there was no adequate cause for him to know that there...
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