Weiss v. Director General of Railroads

Citation250 Mass. 12
PartiesABRAHAM WEISS, administrator, v. DIRECTOR GENERAL OF RAILROADS.
Decision Date19 September 1924
CourtUnited States State Supreme Judicial Court of Massachusetts

March 11, 1924.

Present: RUGG, C.

J., BRALEY, CROSBY & CARROLL, JJ.

Director General of Railroads. Federal Control Act. Practice, Civil, Amendment Finding by judge pro forma. Jurisdiction. Assignment, Of chose in action against Director General of Railroads Validity.

In an action of contract or tort begun in a district court on May 15, 1919 against the New York, New Haven and Hartford Railroad Company for a loss occurring in November, 1918, the court has jurisdiction and power to allow a motion, filed by the plaintiff on January 14, 1922, to amend his writ and declaration by substituting the Director General of Railroads as defendant to conform to a decision by this court rendered on June 29,

1921, to the effect that the action could not be maintained against the railroad corporation.

The jurisdiction and power of the court to allow the amendment in the circumstances above described is not affected by a provision of a bill of lading under which the plaintiff made claim, 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."

Questions of amendment of process or pleadings commonly are recognized as questions of practice and not of substantive right.

Fundamental rights of parties or rights secured by laws of the United

States cannot be jeopardized under the guise of practice or procedure. Per RUGG, C.J.

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. Per RUGG, C.J.

The State practice as to amendments prevails in proceedings in State courts as to enforcement of provisions of the Federal Railroad Control Acts. Whether the amendment above described rightly could have been allowed after

February 28, 1922, was not determined.

The provisions of Sections 10, 12, of the Federal Control Act, 40 U.S. Sts. at Large, 451, disclose an intent that the business of the railroads and the litigation arising therefrom should go on under federal administration the same as before except as modified by express provision of the act and of proclamations pursuant thereto or by necessary implication; and therefore an action against the Director

General of Railroads for loss of goods in transit is not barred by the provisions of U.S. Rev. Sts. Section 3477, although it is brought by one to whom the claim had been assigned before the action was commenced. The purpose manifested by the organization of the several courts of this

Commonwealth is that a decision should be made of each case on its merits by each tribunal before which it may come, unless there is express provision of a different nature; and therefore the practice of making pro forma rulings or findings is justly subject to criticism.

CONTRACT OR TORT, originally brought against the New York, New Haven and Hartford Railroad Company by Nathan Nominsky as assignee of one Louis Cutler, for the value of a bale of rags alleged to have been delivered to the defendant for shipment to Cutler and to have been lost or destroyed and not delivered to Cutler. Writ in the Municipal Court of the City of Boston dated May 15, 1919.

The action previously was before this court and, on June 29, 1921, in a decision reported in 239 Mass. 254 , there was affirmed an order of the Appellate Division of the Municipal Court of the City of Boston dismissing a report by the trial judge who had found for the defendant on the ground that the action should have been brought against the Director General of Railroads instead of against the railroad corporation.

Proceedings relating to a motion by the plaintiff to amend the writ and declaration, filed after the rescript from this court, are described in the opinion.

On April 23, 1923, on suggestion of death of the plaintiff

Nominsky, the administrator of his estate was admitted as plaintiff to prosecute the action.

The action then was heard upon an agreed statement of facts. Material facts are described in the opinion. The defendant asked for the following rulings:

"1. That this court is without jurisdiction to entertain this action against the above named defendant.

"2. That the action against this defendant was not begun prior to the issuance of a summons directed to this defendant dated January 25, 1922.

"3. That under the defendant's tariffs and schedules of rates one of the terms and conditions of the contract between the parties was that in case of loss or damage to the property any action brought to recover must be brought within two years and one day after a reasonable time for delivery of the property had elapsed.

"4. That the action against this defendant was not in fact brought nor begun until long after two years and one day had elapsed after a reasonable time for delivery of the property.

"5. That the plaintiff's action as against this defendant was not begun within the time required by the terms and conditions of the contract between the parties, and said action is, therefore, barred."

"7. That under the provisions of General Order 50 and the Transportation Act of 1920, the court has no power to substitute in an action brought against the corporation the representative of the United States Railroad Administration as party defendant.

"8. That the claim of one Louis Cutler which was assigned to plaintiff's intestate, was a claim not against the United States Railroad Administration but a claim against the New York, New Haven and Hartford Railroad Company.

"9. That if the said assignment to the plaintiff's intestate be treated as an assignment of Cutler's claim against the United States Railroad Administration, nevertheless, said claim is a claim against the United States, and under Section 3477 of the Revised Statutes of the United States said assignment is null and void and the plaintiff can not recover thereon in this action."

The trial judge denied the rulings above described, ruled in accordance with a request by the plaintiff, numbered 4, that the provisions of U.S. Rev. Sts. Section 3477 were not a bar to the action, on the agreed statement of facts "found pro forma in contract for the plaintiff" in the sum of $517.05 and reported the action to the Appellate Division. The Appellate Division ordered: "Plaintiff's request 4 wrongly allowed -- judgment for defendant." The plaintiff appealed.

J. W. Keith, for the plaintiff. A. W. Blackman, for the defendant.

RUGG, C.J. This is an action begun on May 15, 1919, wherein the New York, New Haven and 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 &amp Hartford Railroad, 239 Mass. 254. 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.

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 . Genga v. Director

General of Railroads, 243 Mass. 101 , 110, 111. Etna Mills v. Director General of Railroads, 242 Mass. 255 . Sack v. Director General of Railroads, 245 Mass. 114 , 118. Director General of Railroads v. Eastern Steamship Lines, Inc. 245 Mass. 385 , 396. 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...

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3 cases
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