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

• Decision Date: 30 June 1921
• Citation: 239 Mass. 254,132 N.E. 30
• Parties: NOMINSKY v. NEW YORK, N. H. & H. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 254

132 N.E. 30

NOMINSKY

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

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1921.

Appeal from Municipal Court of Boston, Appellate Division.

Action by Nathan Nominsky against the New York, New Haven & Hartford Railroad Company. From an order of the appellate division of the municipal court, dismissing the report of the trial judge, plaintiff appeals. Affirmed.

The action was for the value of a shipment of goods damaged or destroyed in transit. Defendant introduced no evidence. Plaintiff requested a ruling that Act Cong. March 21, 1918, and the orders of the Director General of Railroads were not a bar to the maintenance of the action. Defendant requested a ruling that Act March 21, 1918, was not to be construed to permit a consignee or owner of freight to recover judgment against a corporation whose property was taken by virtue of the proclamation of the President of December 26, 1917, for a cause of action occurring while such property was in the possession and control of, and being operated by, the United States Railway Administration, because so to do would take the railway corporation's property without due process of law, take private property for public use without just compensation, and deny defendant the equal protection of the laws. The trial judge ruled that Act March 21, 1918, the proclamations of the President of December 26, 1917, and April 16, 1918, and the orders of the Director General of Railroads, Nos. 50 and 50a, were the law of the case, and found for the defendant.

J. W. Keith and Benjamin Rabalsky, both of Boston, for appellant.

Arthur W. Blackman, of Boston, for appellee.

DE COURCY, J.

This is an action to recover the value of a bale of rags, claimed to have been damaged or destroyed in transit. The shipment was made November 21, 1918; and the action was brought in May, 1919. The controlling question raised is whether the action should have been brought against the Director General of Railroads.

In his proclamation of December 26, 1917, whereby the President took possession and control of the transportation systems of the country, and appointed William G. McAdoo Director General of Railroads, it was provided:

‘Said Director may perform the duties imposed upon him, so long and to such extent as he shall determine, through the boards of directors, receivers, officers, and employees of said systems of transportation. Until and except so far as said Director shall from time to time by general or special orders otherwise provide, the boards of directors, receivers, officers, and employees of the various transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers, in the names of their respective companies.'

This left it uncertain whether the carriers were left in general control of their properties, and liable as formerly for occurrences in the course of their operation, or whether they were excluded from the control of the physical properties and consequent liabilities during federal control. Then followed the Federal Control Act of March 21, 1918 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4 a-3115 3/4 p). In section 10 of that act (section 3115 3/4j) Congress provided:

‘Carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. * * * But no process, mesne or final, shall be levied against any property under such federal control.'

It seems to have been generally recognized that the carrier was the one to be sued under this provision.

On October 28, 1918, the Director General issued his General Order No. 50. After referring therein to the proclamations of the President and the Federal Control Act, it recites:

‘Whereas, since the Director General assumed control of said systems of transportation, suits are being brought and judgments and decrees rendered against carrier corporation on matters based on causes of action arising during federal control for which the said carrier corporations are not responsible, and it is right and proper that the actions, suits and proceedings hereinafter referred to, based on causes of action arising during or out of federal control should be grought directly against the said Director General of Railroads and not against said corporations:

‘It is therefore ordered, that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit, or proceeding but for federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of...