Sullivan v. Hustis

• Decision Date: 04 March 1921
• Parties: SULLIVAN v. HUSTIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 441

130 N.E. 247

SULLIVAN

v.HUSTIS.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1921.

Report from Superior Court, Suffolk County; John F. Brown, Judge.

Action by Timothy Sullivan, as administrator of the estate of Catherine Sullivan, deceased, against J. H. Hustis, as temporary receiver of the Boston & Maine Railroad. A demurrer to the declaration was sustained, and the case reported for the consideration of the full court. Order sustaining demurrer reversed, and demurrer overruled.

James J. McCarthy and Thomas C. O'Brien, both of Boston, for plaintiff.

Henry F. Hurlburt and Albert W. Rockwood, both of Boston, for defendant.

RUGG, C. J.

This is an action of tort. The declaration sets forth in one count that the defendant is temporary receiver of the Boston & Maine Railroad, duly appointed by the United States District Court for the District of Massachusetts, and that personal injury and suffering came to the plaintiff's intestate while a traveler on a highway in Wilmington, at a place where the tracks of the Boston & Maine Railroad cross the highway at grade, through collision with an engine or cars arising from the neglect to give the grade crossing signals required by St. 1906, c. 463, part 2, § 147. The other count is like, except that it sets forth the death of the plaintiff's intestate. Both counts are founded on section 245 of said part 2, which is in these words:

‘If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing such as is described in section one hundred and forty-seven, and it appears that the corporation neglected to give the signals required by said section, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment as provided in section sixty-three of part I, or, if the life of a person so injured is lost, to damages recoverable in an action of tort, as provided in said section, unless it is shown that, in addition to a mere want of ordinary care, the person injured or the person who had charge of his person or property was, at the time of the collision, guilty of gross or willful negligence, or was acting in violation of the law, and that such gross or willful negligence or unlawful act contributed to the injury.’

The defendant demurred. The question to be decided is whether the defendant as receiver can be held liable under said section 245.

There is no provision of our railroad act in express terms imposing upon receivers the obligations of this kind resting upon railroad corporations.

Pertinent provisions of federal statutes are found in the Judicial Code of the United States (Act of Congress of March 3, 1911, 36 U. S. Stats. at Large, 1104, 1105), as follows:

‘Sec. 65. Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the state in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall willfully violate any provision of this section shall be fined not more than three thousand dollars, or imprisoned not more than one year, or both.

‘Sec. 66. Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice.’

U. S. Comp. St. §§ 1047, 1048.

These sections in substance and effect are re-enactments of the Act of Congress of March 3, 1887, c. 373, §§ 2, 3, 24 U. S. Stats. at Large, 552, 554, and Act of Congress of August 13, 1888, c. 866, §§ 2, 3, 25 U. S. Stats. at Large, 433, 436.

These sections of the federal statutes have been considered by the Supreme Court of the United States in several cases. In holding that a receiver of a railroad was, under Act of Congress of March 3, 1887, c. 373, § 3, 24 U. S. Stats. at Large, 552, liable for the acts of his predecessor in the same office, it was said in McNulta v. Lochridge, 141 U. S. 327, at page 331, 12 Sup. Ct. 11, at page 13 (35 L. Ed. 796):

‘We agree * * * that, with respect to the question of liability, he stands in place of the corporation.’

And at page 332 of 141 U. S., at page 13 of 12 Sup. Ct. (35 L. Ed. 796):

‘Actions against the receiver are in law actions against the receivership or the funds in the hands of the receiver, and his contracts, misfeasances, negligences, and liabilities are official, and not personal, and judgments against him as receiver are payable only from the funds in his hands. As the right given by the statute to sue for the acts and transactions of the receivership is unlimited, we cannot say that it should be restricted to causes of action arising from the conduct of the receiver against whom the suit is brought.’

An action of tort for negligent setting of fire by sparks from a locomotive was before the court in Eddy v. Lafayette, 163 U. S. 456, where at page 464, 16 Sup. Ct. 1082, at page 1085 (41 L. Ed. 225), it is said:

‘The trial court and also the Circuit Court of Appeals were of opinion that the third section of the Judiciary Act of March 3, 1887, c. 373, § 2, 24 Stat. 552, 554, authorizing suits to be brought against receivers of railroads, without special leave of the court by which they were appointed was intended to place receivers upon the same plane with railroad companies, both as respects their liability to be sued for acts done while operating a railroad and as respects the mode of service. We concur in that view. * * *’

An action was brought against receivers of a railroad in United States v. Harris, 177 U. S. 305, 20 Sup. Ct. 609, 44 L. Ed. 780, to recover penalties in the name and for the benefit of the United States for the alleged, knowing and willful violation of the laws of the United States respecting the watering of live stock while in transportation. In the course of an opinion holding that such recovery could not be had because as matter of statutory construction the word ‘company’ could not rightly be said to include ‘receivers of such company,’ it was said (177 U. S. at page 308, 20 Sup. Ct. at page 611, 44 L. Ed. 780):

‘It may be conceded that it was the intention of Congress [by enacting the Act of August 13, 1888, c. 866, §§ 2 and 3, 25 U. S. Stats. at Large, 433, 436] to subject receivers of railroad companies, appointed * * * by courts of the United States, to the valid laws and regulations of the states and of the United States, whose object is to promote the safety, comfort and convenience of the traveling public.’

The statute there before the court was strictly penal without compensatory features. The penalty was payable to the United States and not by way of damages to the owner of the cattle or other person suffering injury. It was in its essence criminal in nature. In an opinion in the same case in the District Court it was said (78 Fed. 290, 291):

‘The construction of the statute, and the proceeding under it are governed by the rules of the criminal law, as fully as if the proceeding was by indictment. The exclusive purpose of the section is to inflict punishment.’

The decision in United States v. Harris to the effect that a penalty for the transportation of cattle by a railroad company could not be imposed upon the receiver of the railroad was reaffirmed in United States v. Nixon, 235 U. S. 231, 35 Sup. Ct. 49, 59 L. Ed. 207, but a different conclusion was reached because of an amendment to the act of Congress not here relevant.

These excepts from decisions of the United States Supreme Court show that sections 65 and 66 of the Judicial Code have no constricted meaning, but are to be interpreted broadly to effectuate the operation of business carried on by receivers appointed by the federal courts with as much regard for the safety and protection and general observance of the rights of others both in contract and in tort as would be required of the owners of the property of which as receivers they have possession.

The words of the pertinent sections of the Judicial Code require the receiver of a railroad corporation to conduct its business and operate its system of transportation in conformity to valid state laws upon the same footing, with like responsibility and subject to the same liability to respond to suits which would rest upon the owner if in possession and operating.

The doubt to be resolved is whether our statutes, upon which this action rests, fairly can be construed to be sufficiently inclusive to render a receiver liable.

The provisions of St. 1906, c. 463, part 2, § 147, requiring the ringing of the bell and sounding of the whistle at highway grade crossings manifestly were designed to protect travelers on the highway from danger of injury. That section relates specifically to the management and operation of the trains of the railroad and therefore falls within the precise terms of section 65 of the Judicial Code requiring the receiver to ‘manage and operate such property according to the requirements of the valid laws of the state.’ One purpose of the Legislature in enacting said section 147 was thus to afford warning to travelers upon the highway of the peril inevitablyattendant upon crossing a railroad, in order that personal harm and loss of life may be avoided. Another purpose was in case of accident to give some compensation to those suffering directly from the injury or loss of life. Observance of the requirements of the...