Weiss v. Davis

• Decision Date: 20 September 1924
• Parties: WEISS v. DAVIS, Agent, etc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 12

144 N.E. 765

WEISS

v.DAVIS, Agent, etc.

Supreme Judicial Court of Massachusetts.

Sept. 20, 1924.

Appeal from Municipal Court of Boston, Appellate Division.

Action of contract or tort by Abraham Weiss, administrator, against the New York, New Haven & Hartford Railroad Company, for which James C. Davis, Agent and Director General of Railroads, was substituted, for failure to deliver goods transported. From a judgment of the appellate division of the municipal court of the city of Boston, entered on report, plaintiff appeals. Reversed, and judgment entered for plaintiff.

J. W. Keith and B. Rabalky, both of Boston, for plaintiff.

A. W. Blackman, of Boston, for defendant.

RUGG, C. J.

This is an action begun on May 15, 1919, wherein the New York, New Haven & Hartford Railroad Company was named as defendant. The cause of action arises at common law and not under any statute. It is to recover compensation for the loss of merchandise while in course of transportation by a common carrier. The shipment and loss occurred in November, 1918. A reasonable time for the delivery of the merchandise was not later than early in December, 1918. The case has been before us under the name Nominsky v. New York, New Haven & Hartford Railroad, 239 Mass. 254, 132 N. E. 30. It then was decided on June 29, 1921, that the action could not be maintained against that defendant because under the act of Congress and proclamation of the President the complete possession and control of the railroad was vested in the United States and all actions of this nature were maintainable only against the Director General of Railroads. On January 14, 1922, the plaintiff moved to amend his writ and declaration by substituting James C. Davis, Agent and Director General of Railroads, as defendant in place of the defendant originally named. That motion was allowed by the court and on January 25, 1922, process issued summoning Mr. Davis to appear. He filed pleadings appropriate to contest the jurisdiction of the court over him.

[1] The defendant argues that it was beyond the power of the court to allow the amendment. This point is concluded against his contentions by the principle of several recent decisions of this court. L. L. Cohen & Co., Inc., v. Director General of Railroads, 247 Mass. 259, 142 N. E. 75;Genga v. Director General of Railroads, 243 Mass. 101, 110, 111, 137 N. E. 637;AEtna Mills v. Director General of Railroads, 242 Mass. 255, 136 N. E. 380;Sack v. Director General of Railroads, 245 Mass. 114, 118, 139 N. E. 819;Director General of Railroads v. Eastern Steamship Lines, 245 Mass. 385, 396, 139 N. E. 823. It is unnecessary to repeat the reasoning of those decisions in several of which the subject is discussed at large.

No sound distinction between those decisions and the case at bar can be founded upon the circumstance that the bill of lading issued in accordance with law for the lost merchandise contained the provision that:

‘Suits for loss, damage, or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery had elapsed.’

If the present action had been first instituted when the summons issued to Mr. Davis, it would not have been instituted seasonably under the terms of the bill of lading. Under the general practice prevalent in this commonwealth such amendment is commonly allowed, unless special facts exist rendering it inequitable. No such facts are present in the case at bar. The fact that some limitation would bar a new action and that the claim would be lost if an amendment is not allowed has often been considered an additional reason for allowing an amendment, if in other respects permissible. McLaughlin v. West End Street Railway, 186 Mass. 150, 71 N. E. 317, and cases there collected; Tracy v. Boston & Northern Street Railway, 204 Mass. 13, 16, 90 N. E. 416;Genga v. Director General of Railroads, 243 Mass. 101, 104, 137 N. E. 637, and cases there cited. The bill of lading in the case at bar to the ordinary business mind would appear to be issued in the name of the railroad company, although under the law it was issued by the Director General of Railroads. It would be violative of an innate sense of justice to hold that, when action had been instituted seasonably against the railroad company thus appearing on the face of the bill of lading to be liable, the Director General, actually liable on that bill of lading issued by him, could not be brought in as a party defendant by amendment and thus escape all liability. Fundamental rights of parties or rights secured by laws of the United States, cannot be jeopardized under the guise of practice or procedure. Davis v. Dantzler Co., 261 U. S. 280, 43 Sup. Ct. 349, 67 L. Ed. 654, 28 A. L. R. 834;Wabash Railway Co. v. Elliott, 261 U. S. 457, 43 Sup. Ct. 406, 67 L. Ed. 743;North Carolina Railroad v. Lee, 260 U. S. 16, 43 Sup. Ct. 2, 67 L. Ed. 104;Davis v. Wechsler, 263 U. S. 22, 24, 44 Sup. Ct. 13, 68 L. Ed.143;Commonwealth v. Donnelly, 246 Mass. 507, 509, 141 N. E. 500. Questions of amendment of process or pleadings commonly are recognized as practice and not substantive right. Moreover, there is no disposition on the part of courts to exalt a mistake in procedure into an absolute right in contravention of ‘the moral worth’ of a just claim. See Danforth v. Groton Water Co., 178 Mass. 472, 477, 59 N. E. 1033,86 Am. St. Rep. 495. We are not aware of any provision of the acts of Congress or of proclamations or general orders issued pursuant to them, or of any decision of the Supreme Court of the United States, and none has been called to our attention, which forbids expressly or by implication the allowance of such an amendment under the conditions here disclosed.

[2] We understand and have decided in the cases already cited that the state practice as to amendments prevails in proceedings in state courts as to enforcement of provisions of the railroad Federal Control Acts. We hold that there was no error of law in the allowance of the amendment.

The case at bar does not appear to us to be governed by the denial of petitions for writs of certiorari in Fischer v. Wabash Railway way Co., 263 U. S. 706, 44 Sup. Ct. 34, 68 L. Ed.516 (see 235 N. Y. 568, 139 N. E. 738) and in Chrisp v. Davis, 263 U. S. 710, 44 Sup. Ct. 36, 68 L. Ed.518 (see 159 Ark. 335, 252 S. W. 606). See, also, Fahey v. Davis, 224 Mich. 371, 195 N. W. 46. Those decisions all seem to be founded upon state practice more or less divergent from that of this commonwealth.

The case at bar appears to us to be distinguishable from Payne v. Industrial Board of Illinois, 258 U. S. 613, 42 Sup. Ct. 462, 66 L. Ed. 790,Payne v. Stevens, 260 U. S. 705, 43 Sup. Ct. 165, 67 L. Ed. 473, and United States Railway Administration v. Slatinka, 260 U. S. 747, 43 Sup. Ct. 247, 67 L. Ed. 494, where a different statute was involved and a different principle was controlling.

The question is not presented in the case at bar whether such an amendment could rightly be allowed after February 28, 1922, bringing in as a party defendant the agent designated under section 206(a) of the Transportation Act of February [250 Mass. 18]28, 1920, c. 91, 41 U. S. Sts. at Large, 461 (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4cc), as amended by the Act of March 3, 1923, c 233, 42 U. S. Sts. at Large, 1443.

[3] The claim here sought to be enforced is to recover compensation for loss of goods destroyed while in the possession of the railroad administration under the control of the Director General as common carrier and in the course of transportation from Brooklyn, N. Y., to Beverly, Mass. The shipment, according to the bill of lading, was consigned to the order of one Cutler, the owner. Cutler assigned his claim, arising from the loss of the goods while in transit to one Norminsky, who instituted the present action, now prosecuted by his administrator. The defendant contends that the plaintiff's intestate, having acquired the claim by assignment, cannot prosecute action thereon against the United States of America. That contention is founded on section 3477 of the U. S. Rev. Sts. (U. S. Comp. St. § 6383). That section is in these words:

‘All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney, must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same.’

That section has been before the Supreme Court of the United States for construction in numerous cases. All of them theretofore decided were reviewed and analyzed in Jernegan v. Osborn, 155 Mass. 207, 29 N. E. 520, and Thayer v. Pressey, 175 Mass. 225, 56 N. E. 5. That ground need not be traversed again. Since those decisions several adjudications touching that section have been made. In Nutt v. Knut, 200 U. S. 12, 20, 26 Sup. Ct. 216, 219 (50 L. Ed. 348), it was held that a contract between a claimant against the United States for damages founded on appropriation of his property by its officers and his attorney, purporting to give the...