L.L. Cohen & Co. v. Davis

Decision Date04 January 1924
Citation247 Mass. 259,142 N.E. 75
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesL. L. COHEN & CO., Inc., v. DAVIS, Agent.

OPINION TEXT STARTS HERE

Exceptions and report from Superior Court, Bristol County; Hugo A. Dubuque, Judge.

Action by L. L. Cohen & Co., Inc., against the New York, New Haven & Hartford Railroad Company, to recover damages to a carload of scrap iron shipped. James C. Davis, Agent, was substituted as defendant. On exceptions by defendant to refusal to dismiss, and on report after directed verdict for defendant. Judgment for plaintiff.L. Swig, of Taunton, for plaintiff.

A. W. Blackman, of Boston, for defendant.

DE COURCY, J.

On December 13, 1918, the plaintiff shipped from Taunton, Mass., ‘one carload scrap iron,’ consigned to Midvale Steel & Ordnance Company, Coatesville, Pa. A resonable time for delivery at said destination was not later than two months. The shipment was loaded into a ‘sideboard flat’ car; that is, a flat car open at the top, with wooden sides and ends about four feet in height. The plaintiff placed at one end of the car sheet iron scrap, which was tied up in bundles; at the other end skeleton scrap, so called, which was tied up in bales; and in the middle of the car small particles, known as tack or nail scrap. While the car was in transit, and on the lines of the Pennsylvania System, it became reasonably necessary to transfer the contents. The iron was loaded into a battleship hopper car, which, it could be found, was not adapted to the carriage of scrap iron; and in the transfer the fine scrap was loaded on top and mixed in with the other material, so as to render the lading unmarketable and worthless. The consignee refused to accept delivery, and the plaintiff eclined to take it on its return to Taunton, about February 19, 1919.

The plaintiff, by writ dated January 9, 1920, brought an action of contract against the New York, New Haven & Hartford Railroad Company, ‘controlled and operated by the United States Railroad Administration.’ The plaintiff's motion to substitute James C. Davis, Agent, as party defendant, was allowed in September, 1922. On October 7, 1922, an order of notice issued and was served upon one Astley, the division superintendent, service on whom would have been good in an action against said railroad company. The defendant Davis appeared specially on November 6, 1922, and filed a motion to dismiss. This motion was denied, subject to the defendant's exception. At the subsequent trial on the merits, the judge directed a verdict for the defendant, and reported the case to this court.

As the cause of action in this case arose during federal control of the railroad, it is now settled that the action should have been brought against the government and not against the railroad company. Missouri Pacific Railroad v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087;Nominsky v. New York, New Haven & Hartford Railroad, 239 Mass. 254, 132 N. E. 30. The contention of the defendant that the representative of the government cannot be made a party by substitution in any case where the action originally was wrongly brought against the railroad company is contrary to recent decisions of this court. AEtna Mills v. Director General of Railroads, 242 Mass. 255, 136 N. E. 380;Genga v. Director General of Railroads, 243 Mass. 101, 110, 111, 137 N. E. 637;Director General of Railroads v. Eastern Steamship Lines, Inc., 245 Mass. 385, 139 N. E. 823.

[3] The defendant further contends that in no event can substitution be had later than two years after the end of government control. It is true that section 206 (a) of Transportation Act 1920 (41 Stat. at Large, 456 [U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4cc]), provides that, after the termination of federal control, actions arising out of the operation of the railroad while under such control should be brought ‘whthin the periods of limitation now prescribed by state or federal statutes but not later than two years from the date of the passage of this act.’ But that subsection purports to deal only with the time within which actions may be commenced, where the cause thereof arose during federal control and no action was brought during that period. In the case at bar, the action was begun January 9, 1920, almost two months before the termination of federal control. The subsection of the Transportation Act here applicable is 206(d), which provides that such actions ‘pending at the termination of federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a).’ This subsection contains no time limitation. De Witt v. New York Central Railroad, 119 Misc. Rep. 456,196 N. Y. Supp. 870;Henry v. New York Central Railroad, 204 App. Div. 491, 494,198 N. Y. Supp. 542;Hanlon v. Davis, 276 Pa. 113, 118, 119 Atl. 822. Even if section 206(a) were applicable, the Massachusetts law as to amendments does not regard such substitution as the commencement of a new action, and it would have been within the discretion of the trial court to allow the...

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    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 20, 1924
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  • Plastileather Corp. v. Aetna Cas. & Sur. Co.
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    ... ... 524, 526; Canney v. American Exp. Co., 222 Mass. 348, 349, 110 N.E. 967; L. L. Cohen & Co. Inc. v. Director Gen. of Railroads, 247 Mass. 259, 265, 142 N.E. 75; anno. 33 A.L.R.2d 867, ... ...
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