Jacobson v. New York, NH & HR Co.

• Decision Date: 14 July 1953
• Docket Number: No. 4726.,4726.
• Citation: 206 F.2d 153
• Parties: JACOBSON v. NEW YORK, N. H. & H. R. CO.
• Court: U.S. Court of Appeals — First Circuit

206 F.2d 153 (1953)

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

No. 4726.

United States Court of Appeals First Circuit.

July 14, 1953.

Herbert E. Tucker, Jr., Dorchester, Mass., with whom George P. Lordan and Cardozo, Lordan, Katz & Tucker, Boston, Mass., were on brief, for appellant.

Noel W. Deering, Boston, Mass., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

The original complaint in this case stated an action in tort for negligence. In an effort to base federal jurisdiction on diversity of citizenship, the pleader set forth that plaintiff sued as administratrix of the estate of Margaret B. Price; that both plaintiff and her intestate were of Melrose, Massachusetts; that defendant, New York, New Haven and Hartford Railroad Company, was a Connecticut corporation. It was alleged that on May 2, 1950, Margaret B. Price was a passenger of defendant en route from Lake Worth, Florida, to Boston, Mass., and that during the journey she was, due to defendant's negligence, thrown to the floor by a lurch or jolt of the train, from which she received bodily injuries of which she died on May 21, 1950. Count 1 sought damages for conscious pain and suffering. Count 2 sought damages for wrongful death on behalf of the next of kin. The complaint did not state where the accident occurred, but counsel for appellant informed us at the oral argument that it took place in Boston.

Defendant filed a motion to dismiss the complaint for lack of diversity of citizenship, setting forth that defendant "is also a corporation duly organized under the laws of the Commonwealth of Massachusetts, and by reason thereof is a domestic corporation within the Commonwealth of Massachusetts." This motion the district court allowed, on the authority of Seavey v. Boston & Maine R. R. Co., 1 Cir., 1952, 197 F. 2d 485, with leave to plaintiff to file an amended complaint supporting federal jurisdiction.

Thereafter, plaintiff filed an amended complaint setting forth, in addition to the claim of diversity of citizenship, that jurisdiction "is based on the existence of a question under the Federal Statutes known as the Safety Appliance Act Section 1 et seq. Title 45 U.S.C.A. as hereinafter more fully appears." In support of that basis of jurisdiction, it was alleged that defendant so negligently and carelessly maintained and operated the brakes and couplings that as a result intestate was thrown out of her seat and received the injuries of which she died.

The district court granted a motion of defendant to dismiss the amended complaint for lack of jurisdiction of the subject matter of the action. Its memorandum of decision is reported in 109 F.Supp. 513. Plaintiff has appealed from the ensuing judgment of dismissal.

Appellant's main point is that the complaint properly invoked the jurisdiction of the district court under 28 U.S.C. § 1332 on the ground of diversity of citizenship, and that we ought to overrule our holding just a year ago in Seavey v. Boston & Maine R. R. Co., supra. Our decision in that case was carefully considered, and we adhere to it. In the present case a citizen of Massachusetts is suing a corporation incorporated under the laws of Massachusetts on an alleged tort occurring in Massachusetts and governed in its substantive aspects by the local law of Massachusetts. Bearing in mind the underlying purpose of the diversity of citizenship clause in Art. III of the Constitution, we see no reason why we should strain to pull this case into the United States District Court for the District of Massachusetts merely because the defendant corporation is also incorporated under the laws of Connecticut. In the Seavey case, we recognized that our view was not in harmony with that taken in Gavin v. Hudson & Manhattan R. Co., 3 Cir., 1950, 185 F.2d 104, 27 A.L.R.2d 739, but as Judge Goodrich has recently remarked, in another connection, in McCoy v. Siler, 3 Cir., 205 F.2d 498: "The only policy consideration which is apparent is that we should not be astute to widen federal diversity jurisdiction."

Also, we think the district court was right in its conclusion that the subject matter of the cause of action stated in plaintiff's amended complaint, invoking the Safety Appliance Acts, 45 U.S.C.A. § 1 et seq., was not within the jurisdiction of the court under 28 U.S.C. § 1331.

By way of enforcement of the duties imposed by the Safety Appliance Acts, Congress merely imposed a small statutory penalty, to be recovered in a suit brought by the United States; in terms, at least, the Safety Appliance Acts confer no right of action for damages in favor of any individual suffering personal injuries as a result of violation of the various safety provisions.

But the federal Employers' Liability Acts, 45 U.S.C.A. § 51 et seq., do grant a federal statutory right of action to railroad employees suffering injury while employed in interstate commerce, as defined, and in the case of the death of such employee to his personal representative for the benefit of his next of kin, for such injury or death resulting in whole or in part from the negligence of the carrier, "or by reason of any defect or insufficiency, due to its negligence," in its cars, appliances or other equipment. And it is settled that the federal Safety Appliance Acts and the Employers' Liability Acts are in pari materia; and when a railroad employee is entitled to sue under the Employers' Liability Acts he may recover without other proof of fault than a violation of a so-called "absolute duty" imposed by the Safety Appliance Acts. As stated in San Antonio etc. Ry. Co. v. Wagner, 1916, 241 U.S. 476, 484, 36 S.Ct. 626, 630, 60 L.Ed. 1110: "But the two statutes are in pari materia, and where the employers' liability act refers to `any defect or insufficiency, due to its negligence, in its cars, engines, appliances,' etc., it clearly is the legislative intent to treat a violation of the safety appliance act as `negligence,' — what is sometimes called negligence per se." To the same effect see Moore v. Chesapeake & Ohio Ry. Co., 1934, 291 U. S. 205, 210, 54 S.Ct. 402, 78 L.Ed. 755; Brady v. Terminal R. Ass'n, 1938, 303 U. S. 10, 15, 58 S.Ct. 426, 82 L.Ed. 614; O'Donnell v. Elgin, Joliet & Eastern Ry. Co., 1949, 338 U.S. 384, 390, 70 S.Ct. 200, 94 L.Ed. 187; Carter v. Atlanta etc. Ry. Co., 1949, 338 U.S. 430, 434, 70 S.Ct. 226, 94 L.Ed. 236. The cause of action in a suit under the Employers' Liability Acts is a federal one, governed in its entirety by acts of Congress or by federal decisional law — in other words, by the provisions of the federal statutes so far as applicable, fitted into the common law background with respect to concepts of negligence, contributory negligence, last clear chance, assumption of risk, proximate cause, etc., as the federal common law doctrines in such particulars are determined and declared by decisions of the federal courts. See Chesapeake & Ohio Ry. Co. v. Kuhn, 1931, 284 U.S. 44, 46-47, 52 S.Ct. 45, 76 L. Ed. 157; Bailey v. Central Vt. Ry., Inc., 1943, 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444; Dice v. Akron, C. & Y. R. Co., 1952, 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398.

It is true, as the Supreme Court has many times pointed out, that the classes of persons for whose protection the Safety Appliance Acts were passed include more than railroad employees, engaged in interstate commerce, as defined, who are given federal statutory rights of action by the Employers' Liability Acts. This is evident in the original act of March 2, 1893, which was entitled an act "to promote the safety of employees and travelers upon railroads * * *." (27 Stat. 531.) Compliance with the statutory safeguards, in addition to protecting employees engaged in interstate commerce, would also tend in many cases to contribute to the personal safety of intrastate employees. See Gilvary v. Cuyahoga Valley R. Co., 1934, 292 U.S. 57, 54 S.Ct. 573, 78 L.Ed. 1123. Compliance with the acts would also tend to protect passengers, such as the plaintiff's intestate in the case at bar. See Fairport etc. R. R. Co. v. Meredith, 1934, 292 U.S. 589, 594, 54 S.Ct. 826, 78 L.Ed. 1446. In the latter case it was further held 292 U.S. at page 595, 54 S. Ct. at page 828, 78 L.Ed. 1446, that the title of the act need not necessarily be taken as indicating the complete legislative purpose; and that the installation and use of power brakes, as required by the Safety Appliance Acts, "so obviously contribute to the safety of the traveler at crossings that it is hardly probable that Congress could have contemplated their inapplicability to that situation."

When Congress in the Safety Appliance Acts imposed only penal sanctions for the observance of statutory safeguards enacted broadly for the protection of railway employees, passengers, and even travelers at crossings, and in a related act (the Employers' Liability Acts) created a private right of action only in employees engaged in interstate commerce, as defined, fairly obviously it cannot be maintained as a matter of statutory interpretation that Congress has also created a statutory right of action in favor of intrastate railway employees, or passengers, or travelers at crossings, injured as a result of violation by the railroad of the Safety Appliance Acts. "Where there is only a criminal penalty, and no mention of any civil remedy, many courts have read into the statute a supposed or `presumed' intent to provide one. In the ordinary case this is pure fiction, since the obvious conclusion is that the legislature either did not have the civil action in mind at all, or deliberately omitted to provide for it." Prosser on Torts (1941) 265. This was squarely recognized in Gilvary v. Cuyahoga Valley Ry. Co., 1934, 292 U.S. 57, 54 S.Ct. 573, 78 L. Ed. 1123. Furthermore, the Court there commented, 292 U.S. at page 61, 54 S.Ct. at page 575, that if Congress had had the purpose of creating a right of action...