Stein v. Canadian Pacific S.S., Ltd.

• Decision Date: 30 November 1937
• Citation: 11 N.E.2d 457,298 Mass. 479
• Parties: STEIN v. CANADIAN PAC. S. S., Limited, et al. SAME v. CANADIAN PAC. RY. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 479

11 N.E.2d 457

STEIN

v.CANADIAN PAC. S. S., Limited, et al.

SAME

v.CANADIAN PAC. RY. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 30, 1937.

Exceptions from Superior Court, Suffolk County; Walsh, Judge.

Two actions of tort by Alma Stein against the Canadian Pacific Steamships, Limited, and trustee, and against the Canadian Pacific Railway Company and trustee. The review orders allowing defendants' motions to dismiss, plaintiff brings exceptions.

Exceptions sustained.

H. J. Stein, of Boston, for plaintiff.

R. W. Hall, of Boston, for defendants.

RUGG, Chief Justice.

There are two actions of tort to recover compensation for injuries received by the plaintiff while a passenger on a cruise on a steamer owned and operated by the defendants. In the Canadian Pacific Steamships, Limited, case, the defendant filed a motion to dismiss and an answer in abatement. In the Canadian Pacific Railway Company case, the defendant filed a motion to dismiss; the Boston and Maine Railroad summoned as trustee was defaulted. The return of the sheriff in each case shows service of process on L. R. Hart, the general agent in charge of the business of the defendant.

At the hearing on the motions to dismiss and the answer in abatement, the defendants called as a witness Louis R. Hart. The trial judge found these facts: One Louis R. Hart is an employee of the Canadian Pacific Railway Company in its passenger department, and has charge of an office located at 405 Boylston street, Boston, his duties being to solicit passenger business for the said railway company and for the Canadian Pacific Steamships, Limited, to supervise the staff of solicitors, to receive money for tickets, to arrange for transportation, and to sell ‘Passengers Travelers Cheques.’ All money received is deposited by him in a bank in the account of the Canadian Pacific Railway Company. No money therefrom is withdrawn by him or his staff in Boston. All bills are paid from the Montreal office. Pay roll checks and other bills are sent and paid from Montreal. Complaints are received and transmitted Likewise to the office in Montreal. The name of this employee is listed in the telephone book as general agent, and his name appears on stationery and advertising as general agent. Some steamers of the Canadian Pacific Steamships, Limited, make stops at Boston. Hart testified that he makes up and issues tickets of the defendants at the Boston office, the rent for which is paid by the Canadian Pacific Railway Company, sells them and receives money for the same. He makes reservations for the transportation of passengers on lines of the defendants. Local ticket agents confer with him as to information concerning travel and accommodations on the lines of the defendants and he gives them advice regarding those matters. Complaints touching transportation and service presented to him, he attempts to straighten out himself. If unsuccessful, he communicates the information to the Montreal office of the defendants. Telegrams sent by him to the defendants respecting their business are paid for by the defendants. He issues transportation orders and receives money for them. He is constantly striving to direct travel from all New England over the defendants' lines. He receives commissions on the sale of tickets as well as a salary.

The trial judge ruled that these facts did not constitute such doing of business as to make the defendant liable to service of process, and that service on said Hart ‘did not make the defendants subject to the process' of our courts. The motion to dismiss was allowed in each case. The plaintiff excepted to the rulings of the trial judge and to his refusal to give her requests for rulings.

A motion to dismiss for want of proper service is proper pleading as to a matter apparent on the record. It raises a question of law. A plea in abatement is appropriate when reliance is placed upon some fact not appearing on the face of the record which the opposing party may deny and as to which there may be a trial. Paraboschi v. Shaw, 258 Mass. 531, 532, 155 N.E. 445.Tyler v. Bott & Shoe Workers Union, 285 Mass. 54, 55,189 N.E. 509. There was technical error in granting the motions to dismiss, for they related to matters not apparent on the record. These motions may be treated as pleas in abatement. Brotkin v. Feinberg, 265 Mass. 295, 298, 299, 164 N.E. 85;G.L.(Ter.Ed.) c. 231, § 132.

The relevant provisions of our statutes as to service of process are these: ‘In an action against a foreign corporation, except an insurance company, which has a usual place of business in the commonwealth, or, with or without such usual place of business, is engaged in or soliciting business in the commonwealth, permanently or temporarily, service may be made in accordance with the provisions of the preceding section relative to service on domestic corporations in general, instead of upon the commissioner...