Rosenbush v. Bernheimer

• Decision Date: 01 March 1912
• Citation: 211 Mass. 146,97 N.E. 984
• Parties: ROSENBUSH et al. v. BERNHEIMER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 146

97 N.E. 984

ROSENBUSH et al. v. BERNHEIMER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1912

COUNSEL

Lee M Friedman and Friedman & Atherton, for plaintiffs.

A Nathan Williams and Harold S. Davis, for trustee.

OPINION

RUGG C.J.

This is an action of contract. The defendants are nonresidents of this commonwealth, upon whom no personal service has been made, and who have not appeared. The question is whether the Merchants' & Miners' Transportation Company shall be charged by reason of an attachment under the trustee process of property in its hands under these circumstances: The Merchants' & Miners' Transportation Company is a common carrier incorporated under the laws of Maryland, whose steamships ply between Boston and Baltimore. On August 3 1910, it received from various persons at its Boston terminal for immediate transportation to Baltimore certain cases said to contain shoes consigned to the principal defendants at Baltimore, and on the same day it issued therefor through bills of lading covering transit from Boston to Baltimore. The plaintiff's trustee writ was served on the Transportation Company on August 4th, while the cases of shoes were upon its wharf in Boston awaiting shipment. It is agreed for the purposes of this case that the title to the goods was in the principal defendant.

I. The Transportation Company contends that it is not enough to show at the trial that the goods belonged to the defendants, but that it must appear further that at the time the writ was served the carrier knew or should have known that the goods belonged to the defendants. This ground is not tenable. The defendants were consignees named in the bill of lading, which was some evidence of title. Forbes v. Boston & Lowell Railroad, 133 Mass. 154; Fry v. United States, 3 Wall. 451-457, 18 L.Ed. 197; Lawrence v. Minturn, 17 How. 100-107, 15 L.Ed. 58. Moreover, the fact of ownership in trustee process is the one ultimately to be determined upon the answer of the trustee, or if not discovered therein, by other evidence. R. L. c. 189, § 15; Phillips v. Meagher, 166 Mass. 152, 44 N.E. 136; Corsiglia v. Burnham, 189 Mass. 347, 75 N.E. 253. It is agreed that the principal defendants were in truth the owners of the goods.

II. The trustee further contends that, as it does not know of its own knowledge the contents of the cases and had no authority to open them, it cannot be held as trustee under Bottom v. Clarke, 7 Cush. 487. But that case is plainly distinguishable. It is enough for this purpose that the carrier was informed as to the contents of the boxes, and that they were goods of value.

III. The Transportation Company has argued ingeniously that it ought not to be charged as trustee, on the ground it had a right to transport the goods for the purpose of earning freight, and to deprive it of this right would be to put it in a worse position pecuniarily by means of the trustee process than it would be toward the principal defendant, citing among other cases Staniels v. Raymond, 4 Cush. 324, and Van Camp Hardware & Iron Co. v. Plimpton, 174 Mass. 208-210, 54 N.E. 538, 75 Am. St. Rep. 296. The right of the carrier by water to earn freight has been said to accrue when 'the goods are shipped and the voyage has commenced.' McGaw v. Ocean Insurance Co., 23 Pick. 405. Here the voyage had not commenced. In passing it may be observed that this contention was raised in Davis v. Cleveland, C., C. & St. Louis Ry. Co., 217 U.S. 157, 164, 30 S.Ct. 463, 54 L.Ed. 708, 27 L. R. A. (N. S.) 823, 18 Ann. Cas. 907, but was given scant consideration by the court. But it is not necessary to discuss the soundness of this proposition, for the reason that it is not raised by the answer of the Transportation Company. Its answer discloses possession of property belonging to the principal defendants, and the only cause set out for not being charged as trustee is that the property was a subject of interstate commerce, and hence not attachable in this process. The answer makes no assertion of right to possession for the purpose of earning freight. Where the answer of the trustee discloses property, he should be charged, unless facts appear which require him to be discharged. It cannot be assumed in his favor without statement in his answer or facts agreed or proved outside the answer that his pecuniary interests will be adversely affected.

IV. These being the facts, the case is governed by Adams v. Scott, 104 Mass. 164, where a common carrier was charged as trustee on his answer that he had in his possession a valuable package for transportation belonging to the defendant. To the same effect are Cornell v. Mahoney, 190 Mass. 265, 76 N.E. 664, Union Mutual Life Ins. Co. v. Holbrook, 4 Gray, 235, and Landa v. Holck, 129 Mo. 663, 31 S.W. 900, 50 Am. St. Rep. 459. See, also, Cox v. Central Vermont Ry. Co., 187 Mass. 596-609, 73 N.E. 885. It is plain from St. 1905, c. 324, which expressly exonerates the common carrier, in the absence of fraud or collusion, from liability for failure to transport and deliver goods held in its hands by attachment under trustee process, that these decisions thus interpreting the trustee process statutes have been accepted and adopted as a legislative policy. See, also, St. 1910, c. 214. The case at bar is plainly distinguishable from Van Camp Hardware & Iron Co. v. Plimpton, 174 Mass. 208, 54 N.E. 538, 75 Am. St. Rep. 296, in that the goods had not been loaded on ship, and were not in transit, but were lying on the wharf, and it does not appear that it would cause the Transportation Company any expense to segregate them. It is not necessary to analyze the numerous cases cited by the Transportation Company, like Stevenot v. Eastern Ry. of Minnesota, 61 Minn. 104, 63 N.W. 256, 28 L. R. A. 600, Baldwin v. Great Northern Ry., 81 Minn. 247, 83 N.W. 986, 51 L. R. A. 640, 83 Am. St. Rep. 370, and Bates v. Chicago, Milwaukee & St. Paul Ry., 60 Wis. 296, 19 N.W. 72, 50 Am. Rep. 365, where under different circumstances carriers have been held not liable to garnishment.

V. The goods were 'consigned to Bernheimer Bros., Baltimore.' Hence the through bills of lading issued by the Transportation Company were nonnegotiable, and the goods were apparently subject to attachment by trustee process under the uniform bills of lading act. See St. 1910, c. 214, pt. 1, § 4, pt. 3, §§ 28, 33, and pt. 5, § 53.

VI. It has been argued in behalf of the Transportation Company that the statute permitting attachment of goods by trustee process is obnoxious to the provision of the federal Constitution forbidding any state to pass any law which impairs the obligation of a contract. There is nothing in this contention. As was said by Mr. Justice Swayne, in Edwards v. Kearzey, 96 U.S. 595, 603, 24 L.Ed. 793, respecting the impairment of contract clause: 'The inhibition of the Constitution is wholly prospective. The states may legislate as to contracts thereafter made as they may see fit. It is only those in existence when the hostile law is passed that are protected from its effect.' King v. Dedham Bank, 15 Mass. 447, 8 Am. Dec. 112; Oshkosh Water Works Co. v. Oshkosh, 187 U.S. 437-439, 23 S.Ct. 234, 47 L.Ed. 249; Kuhn v. Fairmount Coal Co., 215 U.S. 349-368, 30 S.Ct. 140, 54 L.Ed. 228. Our statute providing for attachment by trustee process was in existence long prior to the events here in controversy.

VII. The same considerations dispose of the Transportation Company's position that the statute as thus interpreted operates to deprive it of its property right secured by the contract without due process of law. The statute was in existence at the time the contract of the Transportation Company was entered into. If it is otherwise a constitutional exercise of legislative power, it is not rendered invalid by the circumstance that it affects in some degree the common-law freedom of action of persons.

All contracts are made subject to existing laws, even though such laws might not be operative if intended to be retroactive. This statute comes plainly within the requirements of the fourteenth amendment to the federal Constitution as to due process of law as defined in many decisions of the Supreme Court of the United States. In Leeper v. Texas, 139 U.S. 462, 467, 468, 11 S.Ct. 577, 579 (35 L.Ed. 225), Chief Justice Fuller said: 'It must be regarded as settled * * * that law in its regular course of administration through courts of justice is due process, and when secured by the law of the state the constitutional requirement is satisfied; and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice.' See, also, Hagar v. Reclamation District, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Turpin v. Lemon, 187 U.S. 51, 58, 23 S.Ct. 20, 47 L.Ed. 70.

VIII. The final ground urged against charging the trustee is that such action would constitute an interference with interstate commerce. It is necessary to determine precisely the nature of trustee process. It is simply one means of attaching property. It has never been decided by any court, as far as we are aware, that property of a debtor was not subject to ordinary attachment at the instance of his creditors merely because it was in process of transportation from one state to another. Immunity from liability to attachment for this cause would afford an easy means for fraudulent debtors to secure exemption of property from payment of debts. The purpose of the statute providing for attachment by trustee process is a laudable one. Its primary design is to enable a creditor to obtain security for his claim. The stability of...