Petition for Writ of Certiorari — Davis v. LL Cohen & Co.

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INDEX.

NoTIcE

PETITION

BRIEF

A. Authority for the issuance of the writ

RB The state court erred in holding that the

respondent could recover

(1) The substitution of the petitioner as

party defendant was the beginning of a

new cause of action

(2) The running of the limitation in the bill

of lading was not arrested as to the peti-

tioner

(3) There is no authority in Federal law

for the substitution

TABLE OF CASES CITED.

Alexander v. Pendleton, 8 Craneh, 462

Atlantic Coast Line Railroad Company v. Bur-

nette, 289 U.S. 199

Missouri Pacific Railroad Company v. Ault, 256

U.S. 554

Rock Island, Arkansas & Louisiana Railroad

Company v. United States, 254 U.S. 141

Seaboard Air Line Railway v. Renn, 241 U.S. 290

Sieard v. Davis, 6 Peters, 124

Union Pacifie Railroad Company v. Wyler, 154

U.S. 285

United States v. Daleour, 208 U.S. 408

United States v. MeCord, 233 U.S. 157

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Supreme Court of the United States.

OcroBer Term, 1923.

No. 899.

JAMES C. DAVIS,

PETITIONER,

v.

L. L. COHEN & COMPANY, INC.,

RESPONDENT,

NOTICE.

To Louis Swic, Esquire,

Counsel for Respondent.

Sir: Please take notice that on Monday, the 28th

day of April, 1924, upon the opening of the Court, or

as soon thereafter as counsel can be heard, the fore-

going petition ana briet, together with a certified copy

of the entire transcript of the record of the ease, will

he presented and submitted to the Supreme Court of

the United States, in its court room in the Capitol at

Washington, D.C., in pursuance of its rules, in such

cases made and provided.

Dated this 22d day of March, 1924.

ARTHUR W. BLACKMAN,

Counsel for Petitioner.

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Due service of the foregoing notice, together with a

copy of the petition for a writ of certiorari, and brief

in support thereof, is hereby acknowledged.

LOUIS SWIG,

Counsel for Respondent.

Taunton, Mass., March 25, 1924.

Supreme Court of the United States.

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Ocrosper Term, 1923.

No. 899.

JAMES ¢. DAVIS, Acer.

PETITIONER,

v.

L. L. COHEN & COMPANY, INC...

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPERIOR COURT OF MASSACHUSETTS.

To the Honorable the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

Your petitioner, James (. Davis, Agent, respectfully

presents to this Court this his petition for a writ of

certiorari addressed to the Superior Court of the

Commonwealth of Massachusetts, commanding such

Court and the clerk thereof to certify to this Court the

record and proceedings of the case in said Court,

wherein your petitioner was defendant and the respon-

dent, L. L. Cohen & Company, Ine., a corporation of

the Commonwealth of Massachusetts, was plaintiff,

together with the opinion therein of the Supreme Ju-

dicial Court for the Commonwealth of Massachusetts,

for the review and determination of said cause by this

Court.

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In this behalf, your petitioner states the following

faets:

This action was brought by the respondent in’ satd

Superior Court for the County of Bristol to recover

for damage to a carload of scrap iron shipped in inter

state commerce by the respondent in December, 1918.

Your petitioner was, on March 28, 1921, appointed by

the President of the United States the agent under

the Transportation Act.

The respondent began its action by writ dated Jan-

uary 9, 1920, against The New York, New [laven and

Hartford Railroad Company, a Massachusetts corpo-

ration and a carrier in interstate commerce, whose rail-

road was taken over and operated by the Federal

Government in accordance with the Proclamation of

the President of the United States dated December 26,

1917.

On September 21, 1922, the respondent herein moved

that it be allowed to substitute as party defendant,

in place of The New York, New Haven and Hartford

Railroad Company, your petitioner as alleged agent,

which motion was allowed. Thereafter, on October 7,

1922, an order of notice was issued from said) Court

directing the plaintiff below, respondent herein, to give

notice to your petitioner of the pendency of said action

and requiring vour petitioner to appear and answer

on the first Monday of November, 1922. Said order

of notice was served upon a division superintendent

of said The New York, New Haven and Hartford Rail-

road Company on October 16, 1922. Service upon said

division superintendent would have been a good ser.

vice in an action against said The New York, New

Haven and Hartford Railroad Company.

5)

Thereafter in due course your petitioner appeared

specially by counsel and filed a motion to disiniss, alleg-

ing that the Court had no Jurisdiction over your peti-

tioner. Your petitioner’s motion to dismiss set forth

that the Court was without Jurisdiction to entertain

the action against your petitioner, the defendant. be-

low; that the issuance and service of the writ were

null and void beeause in violation of and in contlict

with section 206 of the Act of Congress of February

28, 1920, known as the Transportation Act; that the

proceeding against your petitioner was not instituted

within the time preseribed in said Transportation Act;

that said proceeding was not instituted in the manner

provided by said Transportation Act; that no service

had been made upon your petitioner as required by the

Transportation Act; that Massachusetts laws, under

the authority of which your petitioner was summoned

in as party defendant in this action, if held to authorize

such proceedings, were repugnant to the provisions of

the Transportation Aet, and, therefore, null and void:

and prayed that the service of the writ be set aside and

the action as against your petitioner be dismissed,

Your petitioner’s said motion to disiniss was, on

January 2, 1923, overruled, and said action of the

Court thereon became the subject of vour petitioner’s

bill of exceptions to the Supreme Judicial Court for

the Commonwealth of Massachusetts.

After your petitioner’s motion to dismiss was over-

ruled, vour petitioner was required to answer, and in

due course did so, again objecting to the jurisdiction

of the Court over him, and among other defenses

alleging that the plaintiff’s alleged cause of action

arose in connection with a shipment of freight in inter-

trees meron RK Cn oe

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state commerce in December, 1918; that a reasonable

time for delivery of said shipment was not later than

two months thereafter; that said shipment of freight

was made under and in pursuance with the terms and

conditions of a bill of lading, one of the conditions of

which required that suits for loss, damage, or delay

must be brought not later than two years and one day

after the lapse of a reasonable time for delivery; and

that the plaintiff’s proceeding against your petitioner

was not begun within the time so prescribed by the

terms of the bill of ladise:.

The action was subsequently tried upon the merits,

and at the close of the evidence the trial court directed

a verdict for your petitioner, the defendant therein,

and reported the case on request of the parties to the

Supreme Judicial Court for the Commonwealth of

Massachusetts. Said report of the case was argued

before the said Court together with your petitioner’s

exceptions raising the question of jurisdiction. The

said Supreme Judicial Court of Massachusetts re-

versed the decision of the trial court on the merits,

sustained the order of the trial court overruling your

petitioner’s motion to dismiss, and directed the Su-

perior Court of the Commonwealth of Massachusetts

to enter judgment for the plaintiff below, the respon-

dent herein.

The reasons relied on for the issuance of said writ

and upon which your petitioner believes the writ ought

to be issued are as follows:

I.

The Supreme Judicial Court for Massachusetts, in

holding that the representative of the Federal Rail-

prope tatiana

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road Administration can be made a party by substi-

tution in any case where the ac’ originally was

wrongly brought against the rs) «1 corporation,

is permitting a course of procedure contrary to the

terms of General Order 50 and General Order 50-A of

the United States Railroad Administration.

II.

The Supreme Judicial Ceurt for Massachusetts, in

permitting the representative of the Government to

he made a party by substitution in an action originally

wrongly brought against the railroad corporation, was

deciding a matter of substance and not of nrocedure,

and was applying the particular 7 ces the Com-

monwealth of Massachusetts in relation to a Federal

question. This is contrary to the policy of Congress as

expressed in the Transportation Act.

II.

In holding that, in an action reiuast the Govern-

ment, the representative of the Geverument may be

made a party by substitution wh: *he action origi-

nally was wrongly brought against + railroad corpo.

ration the decision reads into the eo. ut given to sue

the Government a permission to proceea ina way not

authorized by the consent given.

IV.

The decision holds that substitution me~ jot only be

had, but that it may be had later tua.. .» Years after

the end of Government control. This is in conflict

with the Transportation Act.

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The decision holds that substitution may be had at

a time more than two years and one day after a reason-

able time for delivery of the property had elapsed.

This holding is in conflict with the uniform bill of lad-

ing authorized by the Interstate Commerce Commis-

sion and used by the carriers, and is, therefore, in

conflict with the Act to Regulate Commerce.

VI.

In holding that the representative of the Govern-

ment can be made a party by substitution in an action

originally brought against the railroad company at a

time more than two years after a reasonable time for

delivery of the property and at a time more than two

years after the passage of the Transportation Act, the

Supreme Judicial Court of Massachusetts holds that

such substitution is not the commencement of a new

action. This is in conflict with the Transportation Act

and also with principles of law enunciated by this

Court.

VIL.

In holding that substitution may be had later than

two years after the end of Government control, the

Supreme Judicial Court of Massachusetts holds that

section 206 (a) of the Transportation Act purports to

deal only with the time within which actions may be

commenced where the cause of action thereof arose

during Federal control and no action whatever was

brought during that period. This is in conflict with

the Transportation Act, which applies to any and all

proceedings instituted thereafter against the Govern.

ment,

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Vill.

In deciding that the representative of the Govern-

ment can be made a party by substitution at a time

later than two years after the end of Federal control,

the Supreme Judicial Court holds that the service as

made was lawful and valid. This ix in conflict with

the Transportation Act.

IX.

The decision of the Supreme Judicial Court of

Massachusetts is in conflict with other decisions of

State Courts and with decisions of the lower Federal

Courts and is believed to be in conflict with recent

decisions of this Court. This case is a test case, the

determination of which hy this Court will govern the

conduct of parties in many other cases pending in the

Commonwealth of Massachusetts and elsewhere.

ARTHUR W. BLACKMAN.

Counsel for James (. Davis, Agent.

STATE or Massacuuserts, Couxry or Briston, ss.

Artruve W. Biackmax, being first duly sworn, on

oath deposes and says that he ix the counsel for peti-

tioner, James C. Davis, Agent: that he has read the

foregoing annexed petition and knows well the contents

thereof; that he has also carefully read and studied a

duly certified copy of the transeript of reeord which

accompanies the petition herein, being the transeript

of record in the case at bar: that the matters in said

petition are in the judgment of this affiant duly sup-

ported in and by said transcript of record, and that he

knows of the above proceedings had, and that the acts

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in said petition herein stated are true to the best of his

knowledge and belief.

Subscribed and sworn to before me this 28th day of

March, 1924.

EDWARD C. BARKER,

| seal | Notary Public in and for

the State of Massachusetts.

My commission expires January 19, 1928.

I do hereby certify that I have carefully examined

the foregoing petition for a writ of certiorari, and that

the allegations thereof are true, as I verily believe, and

in my opinion the petition is well founded and the case

is one in which the prayer of the petition should be

granted by this Court.

ARTHUR W. BLACKMAN,

Counsel for Petitioner.

Supreme Court of the United States.

Ocroser Term, 1923.

No. 899.

JAMES C. DAVIS, Acenr,

PETITIONER,

v.

L. L. COHEN & COMPANY, INC.,

RESPONDEN’,

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI.

The petition for a writ of certiorari accompanies a

writ of error in the case of James C. Davis, Agent,

Plaintiff in Error, y. L. L. Cohen & Company, Inc.,

Defendant in Error, and is filed for the purpose of

obtaining a review in the event that this Court should

hold that the case was not properly before the Court

on the writ of error.

A.

AUTHORITY For THE IssUANCE oF THE Wait.

A Federal question is presented because this case

involves the right of the respondent, plaintiff helow,

to recover for damage to an interstate shipment,

which moved during the period of Federal control of

carriers. The petitioner’s motion to dismiss objected

to the Court’s jurisdiction over him because the pro-

ceedings were in violation of the Act of Congress,

February 28, 1920, known as the Transportation Act,

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and the petitioner’s answer thereafter filed, in addi-

tion pleaded in bar to the action the requirement in the

bill of lading that suit should be brought within two

years and one day from delivery of the shipment.

If this Court should hold that the cause is not prop-

erly before the Court on the writ of error, then a re-

view may be had on a writ of certiorari on the ground

that the decision of the State Court was against the

Federal rights claimed by the petitioner under the

Interstate Commerce Act and under the Transporta-

tion Act, and the petition may be allowed under sec-

tion 237 of the Judicial Code.

B.

Tue Strate Courr Errep 1x Hoipine ruat THE Respon-

DENT COULD REcOvER.

(1) The substitution of the petitioner as party de-

fendant was the beginning of a new cause of action.

The so-called amendment in the proceedings below

was not a mere expansion or amplification of what was

alleged in support of the cause of action already

asserted, nor did it relate back to the commencement

of the action.

Atlantic Coast Line Railroad Company v.

Burnette, 239 U.S. 199, 201.

Seaboard Air Line Railway v. Renn, 241

U.S. 290, 293.

Union Pacific Railroad Company v. Wyler,

154 U.S. 285.

As respondent’s right to sue was given by Act of

Congress, and the amendment brought in a new party,

the amendment in the Court below was both a depar-

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ture from law to law and the assertion of a new cause

of action.

Union Pacific Railroad Company vy. Wyler,

154 U.S. 285.

United States v. Mc¢ ‘ord, 233 U.S. 157.

(2) The running of the limitation in the bill of lad-

ing was not arrested as to the petitioner,

As the petitioner did not become a defendant before

October, 1922, and as the petitioner represents the

Federal Government and not the original corporate

defendant, the petitioner may set up the bill-of-lading

provision requiring suit to be brought within two years

and one day after delivery of the property.

Union Pacific Railroad Company vy. Wyler,

154 U.S. 285.

Alexander y. Pendleton, 8 Cranch, 462.

Sicard vy. Davis, 6 Peters, 124.

United States y. Dalecour, 203 U.S. 408.

(3) There is no authority in Federal law for the

substitution.

General Order 50 of the Director General, dated Oc-

tober 28, 1918 (U.S. R.R. Administration Bulletin No.

4, p. 334), was in effect at the time the respondent’s

action was begun, and was mandatory. The respon-

dent’s original proceeding was therefore improperly

brought and could avail it nothing,

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Missouri Pacific Railroad Com pany v. Ault,

256 U.S. 554.

The bringing in of the petitioner by amendment to

an action erroneously brought was not permissible

Where the right to maintain the action against the

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Federal Government is a right granted by the sover-

eign.

Rock Island, Arkansas & Lowisiana Rail-

road Company v. United States, 254 U.S.

141, 148.

United States v. McCord, 233 U.S. 157.

In the latter case, which involved the statute giving

creditors of a contractor for the United States the

right to sue in the name of the United States upon the

contractor’s bond, and authorized the intervention of

other creditors, this Court said:

‘«These rights to intervene and to file a claim,

conferred by the statute, presuppose an action

duly brought under its terms. In this case the

cause of action had not accrued to the creditors

who undertook to bring the suit originally. The

intervention could not cure this vice in the original

suit. Nor do we think that the intervention could

be treated as an original suit.’’

Not only is there no authority in the Transportation

Act for the substitution of the agent in cases erro-

neously brought, but also the amendment to the Trans-

portation Act, passed March 3, 1923, known as the

Winslow Act, expressly authorized substitution of the

Agent or Director General only in actions properly

commenced. This failure of Congress to authorize

substitution in cases erroneously brought shows that

all along it has been the intent of Congress not to

permit substitution in such situations.

Respectfully submitted,

ARTHUR W. BLACKMAN,

Counsel for

James C. Davis, AcEntT, Petitioner.

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Federal Government is a right granted by the sover-

eign.

Rock Island, Arkansas & Lowsiana Rail-

road Company v. United States, 254 U.8.

141, 143.

United States v. McCord, 233 U.S. 157.

In the latter case, which involved the statute giving

creditors of a contractor for the United States the

right to sue in the name of the United States upon the

contractor’s bond, and authorized the intervention of

other creditors, this Court said:

‘«These rights to intervene and to file a claim,

conferred by the statute, presuppose an action

duly brought under its terms. In this case the

eause of action had not accrued to the creditors

who undertook to bring the suit originally. The

intervention could not cure this vice in the original

suit. Nor do we think that the intervention could

be treated as an original suit.’’

Not only is there no authority in the Transportation

Act for the substitution of the agent in cases erro-

neously brought, but also the amendment to the Trans-

portation Act, passed March 3, 1923, known as the

Winslow Act, expressly authorized substitution of the

Agent or Director General only in actions properly

commenced. This failure of Congress to authorize

substitution in cases erroneously brought shows that

all along it has been the intent of Congress not to

permit substitution in such situations.

Respectfully submitted,

ARTHUR W. BLACKMAN,

Counsel for

James C. Davis, AGENT, Petitioner.