Rosso v. Freeman

• Decision Date: 19 February 1929
• Docket Number: 2974.,No. 2957-2960,2957-2960
• Citation: 30 F.2d 826
• Parties: ROSSO v. FREEMAN (four cases). SANTORO v. SAME.
• Court: U.S. District Court — District of Massachusetts

30 F.2d 826 (1929)

ROSSO v. FREEMAN (four cases).

SANTORO v. SAME.

Nos. 2957-2960, 2974.

District Court, D. Massachusetts.

February 19, 1929.

John Rosso (in cases 2957, 2958 and 2960), for plaintiffs.

Rose Rosso, in pro, per.

McCarthy & Doherty, of Springfield, Mass., for plaintiff Santoro.

Chas. H. Beckwith and John P. Kirby (specially), both of Springfield, Mass., for defendant.

BREWSTER, District Judge.

The above-entitled actions were brought in the state court to recover for personal injuries, alleged to have been sustained as the result of a collision in Massachusetts between a bus of the Hartford & Springfield Street Railway Company and another automobile. The actions have been duly removed to this court and are now presented on defendant's answers in abatement, filed in the state court. The same question is raised in each of the above cases, and the several pleas may conveniently be disposed of in one opinion.

The defendant seeks to have the writs abated on two grounds:

First. That at the time of the alleged injuries the bus in which the plaintiffs were riding belonged to the Hartford & Springfield Street Railway Company and was being operated by the defendant, as a receiver of said company, under authority of the superior court of the state of Connecticut, and was not being operated by the defendant individually, either in person or by agent or servant.

Second. That there was no sufficient service upon the defendant.

The following facts appear from pleadings or from agreements of counsel

At the time of the collision, Harrison B. Freeman was duly appointed and acting as receiver of the Hartford & Springfield Street Railway Company, a Connecticut corporation, under a decree of the superior court in Hartford county, in the state of Connecticut, which authorized him to "carry on in such manner as he may deem judicious the bus business * * * conducted by said corporation." No ancillary receivership proceedings were ever instituted in the commonwealth of Massachusetts.

Under that decree he operated a line of busses between Hartford, in the state of Connecticut, and Springfield, in the commonwealth of Massachusetts, and the bus involved in the collision was operated, at the time of the accident, by one of his employes. The coach was duly registered as the property of the Hartford & Springfield Street Railway Company. It was also agreed in open court that the plaintiffs had applied to the state court in Connecticut for leave to bring these suits in the Massachusetts court and that this request had been denied.

During the course of the argument the defendant advanced, as a further reason for abating the writs, the fact that they were ambiguous, in that they did not clearly show whether the defendant was being sued as an individual or in his official capacity as receiver. It appears that in writs Nos. 2957, 2958, 2959, and 2960 the defendant is described as Harrison B. Freeman, doing business under the name and style of "Harrison B. Freeman, Receiver of the Hartford & Springfield Street Railway Company," and in the declarations in these cases it is alleged that the defendant was the owner of, or in control of and operating, an automobile bus in Longmeadow, Mass., as a common carrier of passengers, and that on the day in question the defendant had, by his agents and servants, carelessly and negligently operated and controlled said bus, causing injuries to the plaintiffs.

In No. 2974 there is an additional count based upon the carrier's contract to safely transport the plaintiff.

While I am somewhat inclined to the opinion that the words "doing business under the name and style of Harrison B. Freeman, Receiver of the Hartford & Springfield Street Railway Company," are merely descriptive of the title under which the business was being conducted in Massachusetts and would not properly describe the defendant in his capacity as an officer of the court (Vasele v. Grant St. Elec. Ry. Co., 16 Wash. 602, 48 P. 259), yet there is room for reasonable doubt respecting the capacity in which the defendant is being sued. The defendant is entitled to know beyond peradventure whether he is being sued as an individual or in his official capacity. Unless and until this doubt is dispelled, the writs should abate. Trull v. Howland, 10 Cush. (Mass.) 109, 112, 57 Am. Dec. 82; White v. Slattery Co., 236 Mass. 28, 127 N. E. 597.

It is obvious that any ambiguity in this respect can be easily removed by amendments to the writs. If the writs were amended so as to clearly show that the plaintiffs were instituting actions of tort against the defendant in his capacity of receiver, the defendant's answer in abatement would have to be sustained, in the absence of any showing on the record that the plaintiffs had obtained leave of the Connecticut court to bring this action in the Massachusetts court, and especially in view of the agreement that the plaintiffs had unsuccessfully applied to the Connecticut court for such permission. Davis v. Gray, 16 Wall. 203, 21 L. Ed. 447; Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672; Texas & Pac. R. Co. v. Cox, 145 U. S. 593, 12 S. Ct. 905, 36 L. Ed. 829; Porter v. Sabin, 149 U. S. 473, 13 S. Ct. 1008, 37 L. Ed. 815.

The more difficult question presented by this preliminary answer is whether a writ brought against the defendant in his individual capacity must be abated. We are dealing with a situation somewhat analogous to that involved in the receivership of a railroad corporation engaged in the business of a common carrier of passengers. It is the accepted doctrine that a railroad receiver conducting the business of a common carrier occupies the same position, as regards negligence of employés, as the company would if operating such road. Texas & Pacific R. Co. v. Cox, supra, 145 U. S. at page 598, 12 S. Ct. 905, 36 L. Ed. 829; Wall v. Platt, 169 Mass. 398, 48 N. E. 270; Newell v. Smith, 49 Vt. 255.

It is equally well settled that, in the absence of any personal or individual misconduct on the part of the receiver, his liability is official rather than personal. McNulta v. Lochridge, 141 U. S. 327, 12 S. Ct. 11, 35 L. Ed. 796; Texas & P. R. Co. v. Cox, supra; Archambeau v. Platt, 173 Mass. 249, 53 N. E. 816; McNulta v. Ensch, 134 Ill. 46, 24 N. E. 631; Robinson v. Kirkwood, 91 Ill. App. 54. See Cardot v. Barney, 63 N. Y. 281, 20 Am. Rep. 533.

There have been cases, however, where the courts have held that the defendant could not shield himself from liability on the ground that he was a receiver. Kain v. Smith, 80 N. Y. 458; Lyman v. Central Vt. R. Co., 59 Vt. 167, 10 A. 346.

In both of these cases the receiver, duly appointed by a state court, was operating as lessee a railroad which did not constitute a part of the receivership property. In the New York case the railroad was outside of the jurisdiction of the court appointing the receiver, and in the Vermont case it was not. In both cases the court held the defendants personally liable. In Kain v. Smith, supra, the court observed:

"If the defendant had confined his action to the road over which he was appointed receiver, it may be conceded that the rule applied in Cardot v. Barney (supra), would serve as a defense. Outside of that State he stands as an individual liable for his own negligence, whether he acts personally, or through agents, alone, or in company with others. He cannot be shielded by a description of his office, or a declaration that he is acting in an official character. The court from which he derived it had no jurisdiction over the subject of the contract, or power to enter a decree to be enforced outside of the State by whose laws it was created, and whose laws alone could make these decrees effective. The defendant could do no act virtute officii in this State,...