Malloy v. American Hide & Leather Co.

• Decision Date: 12 October 1906
• Docket Number: 218.
• Citation: 148 F. 482
• Parties: MALLOY v. AMERICAN HIDE & LEATHER CO.
• Court: U.S. District Court — District of Massachusetts

148 F. 482

MALLOY v. AMERICAN HIDE & LEATHER CO.

No. 218.

United States Circuit Court, D. Massachusetts.

October 12, 1906

Whipple Sears & Ogden, for plaintiff.

Brandeis Dunbar & Nutter, for defendant.

LOWELL Circuit Judge.

The first and second counts of the declaration allege a right to recover by reason of the death of the plaintiff's intestate. The action was based upon Rev. Laws Mass. c. 106 Secs. 71-74. The material parts of the statute are as follows:

'Sec. 71. If personal injury is caused to an employee, who, at the time of the injury, is in the exercise of due care, by reason of a defect in the condition of the employer * * * the negligence of a person in the service of the employer who was entrusted with and was exercising superintendence * * * the employee or his legal representatives shall * * * have the same rights to compensation and of action against the employer as if he had not been an employee nor in the service, nor engaged in the work of the employer.

'Sec. 72. If the injury described in the preceding section results in the death of the employee, and such death is not instantaneous or is preceded by conscious suffering, and if there is any person who would have been entitled to bring an action under the provisions of the following section, the legal representatives of said employee may, in the action brought under the provisions of the preceding section, recover damages for the death in addition to those for the injury.'

'Sec. 74. If, under the provisions of either of the two preceding sections, damages are awarded for the death, they shall be assessed with reference to the degree of culpability of the employer or of the person for whose negligence the employer is liable.'

The first count alleges a defect in the ways, works, or machinery, to wit, an elevator. The second alleges the negligence of a superintendent. To these counts the defendant has demurred, upon the ground that the statute referred to is in its nature so penal that it cannot be made the basis of an action in this court, being enforceable only in the courts of the commonwealth. The defendant admits that, in Boston & Maine v. Hurd, 108 F. 116, 47 C.C.A. 615, 56 L.R.A. 193, the Circuit Court of Appeals for this circuit held that an action was maintainable in an analogous case. That decision is ordinarily binding upon this court, but the defendant contends that, in Hudson v. Lynn & Boston R.R., 185 Mass, 510, 71 N.E. 66, decided in the Supreme Court of Massachusetts, which is charged with the ultimate interpretation of the statutes of the commonwealth, it was held that the statute in question was penal, inasmuch as it 'gave a civil remedy for the recovery of a penalty imposed by way of punishment.' 185 Mass. 517, 71 N.E. 69. The Circuit Court of Appeals observed, however, that it is not sufficient that the statute in question 'is in the nature of a penal statute. The distinction between a statute strictly penal, or qui tam, and one in the nature of a penal statute, is pointed out in Huntington v. Attrill, 146 U.S. 657, 13 Sup.Ct. 224, 36 L.Ed. 1123. The proper test is that, if it is strictly penal, the remedy is subject to the control of the executive of the state by which the proceeding was authorized, and it may be at any time, either before or after judgment, annulled by a pardon.' 108 F. 119, 47 C.C.A. 615, 56 L.R.A. 193. That the Governor of Massachusetts can remit a penalty imposed by the statute above quoted has never been suggested. Moreover, in Huntington v. Attrill, the Supreme Court said that: 'The test is not by what name the statute is called by the Legislature or the courts of the state in which it was passed, but whether it appears to the tribunal which is called upon to enforce it to be, in its essential character and effect, a punishment of an offense against the public or a grant of a civil right to a private person. In this country, the question of international law must be determined in the first instance by the court, state or nation, in which the suit is brought. If the suit is brought in a Circuit Court of the United States, it is one of those questions of general jurisprudence which that court must decide for itself, uncontrolled by local decisions.' 146 U.S. 683, 13 Sun.Ct. 233, 36 L.Ed. 1123.

It follows that the decision of the Supreme Court of Massachusetts, even if it be taken to hold that this action is not maintainable here, yet does not bind the federal courts. And, in Oulighan v. Butler, 189 Mass. 287, 295, 75 N.E. 726, the Supreme Court of Massachusetts described the statutory proceeding as a 'remedy for death by wrongful act,' and observed that 'the remedy provided was in the nature of a penalty, which must be assessed according to the degree of the defendant's culpability or that of his servants. ' The remedial intent of the statute was thus recognized. As a higher federal court than this was held the action to be maintainable, this court will regard itself as bound by that decision, notwithstanding the expressions of the Supreme Court of Massachusetts in Hudson v. Boston & Lynn R.R. The defendant's demurrer to these counts is therefore overruled.

The third count of the declaration alleges that the plaintiff's intestate was employed by the defendant in running...