Pinson v. Potter

• Decision Date: 17 September 1937
• Citation: 298 Mass. 109,10 N.E.2d 136
• Parties: PINSON v. POTTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 109

10 N.E.2d 136

PINSON

v.POTTER.

Supreme Judicial Court of Massachusetts, Hampden.

Sept. 17, 1937.

Exceptions from Superior Court, Hampden County; Burn, Judge.

Action of tort by Theo W. Pinson against Rockwell H. Potter. Defendant's motion to dismiss was allowed and his plea in abatement sustained, and plaintiff brings exceptions.

Exceptions sustained.James P. Moriarty and J. F. Handy, of Springfield, for plaintiff.

R. H. Doran, of Holyoke, for defendant.

FIELD, Justice.

This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff as the result of a collision of an automobile which the defendant was driving with an automobile in which the plaintiff was riding. The action was commenced by writ and summons dated February 6, 1936, returnable to the District Court of Springfield on February 22, 1936, and was removed to the Superior Court by the plaintiff. The writ describes the plaintiff as of Dallas, Texas, and the defendant as of Hartford, Connecticut. The officer's return shows that personal service was made on the defendant in Springfield. The declaration alleges that the collision occurred in the town of Ridgefield, Connecticut. The defendant, through his attorneys, filed a special appearance, a motion to dismiss and a so called ‘plea in abatement.’

The motion to dismiss was based on ‘lack of jurisdiction on the following grounds: 1. Non-compliance with G.L. c. 223, § 2, as amended by St.1934, chapter 387. 2. The Plaintiff has access to the courts of the State of Connecticut and of the United States.’ The ‘plea in abatement’ alleged ‘that the actionfor which suit was brought in this case arises out of an automobile accident that occurred in the State of Connecticut that at the time of said accident the plaintiff was a resident of the State of Texas and the defendant was and still is a resident of the State of Connecticut, and that because of the residence and the place of the accident this court has not jurisdiction over the parties in this suit.’

The matter was heard in the Superior Court on agreed facts which include the following: This action ‘is for personal injuries arising out of a motor vehicle accident occurring on April 13, 1935, at Ridgefield, Connecticut.’ ‘The plaintiff is a citizen domiciled in the State of Texas.’ He ‘is and was at the time of the accident alleged in the plaintiff's declaration a resident of Dallas in the State of Texas * * * he is and has been employed by a Massachusetts corporation, managing its real estate in Texas * * * periodically he comes to Springfield, Massachusetts in connection with said corporation's business.’ Immediately ‘after the accident the plaintiff was taken to a hospital in Danbury, Connecticut and there treated by Connecticut doctors, later treated by doctors in Tennessee and Texas.’ At the time of service of the writ the plaintiff ‘was in said Springfield and had consulted doctors in Springfield during January, 1936.’ ‘The defendant is a citizen domiciled in the State of Connecticut.’ He ‘is and has been for some years past a resident of Hartford in the State of Connecticut, and his work is centered in said Hartford, and at the time of the accident alleged in the plaintiff's declaration, he was a resident of said Hartford.’ At ‘the time of service of writ in hand upon the defendant he was in Springfield, Massachusetts for the purpose of giving a lecture.’

The motion to dismiss was allowed, the ‘plea in abatement’ was sustained, and the plaintiff excepted.

The defendant contends that the motion to dismiss was rightly allowed, and that the plea in abatement was rightly sustained, for the reason that (a) the Superior Court had no jurisdiction of the action, but (b) if it had such jurisdiction the judge could and did, in his discretion, decline jurisdiction in accordance with the principle of forum non conveniens.

The motion to dismiss and the ‘plea in abatement’ raise not only the question of jurisdiction in the strict sense, but also the question whether venue was property laid. See Paige v. Sinclair, 237 Mass. 482, 130 N.E. 177. See, also, Hanley v. Eastern Steamship Corporation, 221 Mass. 125, 127, 130, 109 N.E. 167, Ann.Cas.1917D, 1034.

The Superior Court had no original jurisdiction of the action. By G.L. (Ter.Ed.) c. 218, § 19, as amended by St.1934, c. 387, § 1, it is provided that ‘District courts shall have exclusive original jurisdiction of actions of tort arising out of 1934, c. 387, took effect October 1, 1934-the operation of a motor vehicle.’ (St. before this action was commenced and even before the collision occurred out of which the alleged cause of action arose.) But under section 102A, inserted in G.L.(Ter.Ed.) c. 231, by St.1934, c. 387, § 3, the plaintiff could remove the action to the Superior Court if it had been properly brought in the District Court, with respect both to jurisdiction, in the strict sense, and to venue.

This action was not properly brought in the District Court unless in conformity with G.L.(Ter.Ed) c. 223, § 2, as amended by St.1934, c. 387, § 2, which is set out in a footnote.¹ It was not brought in conformitywith that part of the section-added by the amendment-which deals specifically with actions of tort arising out of the operation of motor vehicles and provides venue for such actions only if one of the parties is a resident of the Commonwealth. The plaintiff contends, however, that the action was properly brought under the part of the section-the last sentence thereof-dealing with transitory actions generally when the defendant is not an inhabitant of the Commonwealth, which was re-enacted by the amending statute without any change in its terms.

Under G.L.(Ter.Ed.) c. 223, § 2, as it stood before the amendment, this action would have been properly brought. The section then dealt throught with transitory actions generally, without any special provision for actions of tort arising out of the operation of motor vehicles, which are transitory actions. See Hanlon v. Frederick Leyland & Co., Ltd., 223 Mass. 438, 440, 111 N.E. 907, L.R.A.1917A, 34. It provided in its first sentence that a transitory action ‘shall be brought in the county where one of the defendants lives or has his usual place of business' with a further provision applicable to trustee process. But it contained in its second and last sentence, by way of...