Annual Survey of Massachusetts Law
Volume 1970
Article 31
1-1-1970
Chapter 28: Civil Procedure and Practice
John H. Curtin Jr.
William G. Young
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CHAPTER 28
Civil Procedure and Practice
JOHN H. CURTIN, JR.
and
WILLIAM G. YOUNG§28.1. Long-arm jurisdiction. On July 25, 1968, the Governor signed Chapter 760 of the Acts of 1968, thus enacting G.L., c. 223A, the so-called Massachusetts long-arm statute. The numerous complexities involved in securing personal jurisdiction over nonresidents and for-eign corporations have been noted in previous SuRVEY volumes.l Chap-ter 223A does not eliminate these complexities2 but it does describe certain broad criteria which, if met, are stated to be sufficient to per-mit the exercise of personal jurisdiction over a nonresident individual or foreign corporation. The new long-arm statute also enumerates the various procedural steps by which such jurisdiction may be obtained.3 During the 1970 SuRvEY year, because of increasing use of G.L., c. 223A, to secure personal jurisdiction over nonresidents, the courts have had to grapple with the language of the statute and have given some indication of the breadth which it will be afforded.
The Supreme Judicial Court first had occasion to examine the reach of the long-arm statute in Kagan v. United Vacuum Appliance Corp.4
Kagan, a trustee in bankruptcy of D.C. Industries, Inc., brought a bill in equity for declaratory relief against United Vacuum Appliance Corporation, a foreign corporation, seeking an interpretation of a conditional sales contract. Service upon United Vacuum was effected by sending it a copy of the summons by registered mail.5 The
defen-JOHN J. CURTIN, JR. and WILLIAM G. YOUNG are partners in the finn of Bingham, Dana and Gould, Boston, and are Instructors at Boston College Law School.
§28.1. 1 See 1969 Ann. Surv. Mass. Law §§20.1-20.16; 1967 id. §2l.l; 1966 id. §23.1; 1965 id. §21.2; 1964 id. §21.2; 1961 id. §5.8; 1960 id. §5.3; 1955 id. §10.3; 1954 id. §12.5.
2 Although Chapter 223A is comprehensive in its description of the permissible scope of personal jurisdiction and the manner of obtaining such jurisdiction, it contains no provision repealing any other jurisdictional statute.
3 For a detailed analysis of the provisions of G.L., c. 223A, and a comparison of its provisions with analogous statutes in other states and judicial interpretation of those statutes, see Zabin, The Long-Ann Statute: International Shoe Comes to Massachusetts, 54 Mass. L.Q. 101 (1969). See also Brown, A Long-Arm Statute for Massachusetts, 12 Boston B.J. (No. 7, 1968).
41970 Mass. Adv. Sh. 999, 260 N.E.2d 208.
5 Under G.L., c. 223A, §6(a): "When the law of this commonwealth authorizes service outside this commonwealth, the service, when reasonably calculated to give actual notice, may be made: . . . (3) by any form of mail addressed to the person to be served and requiring a signed receipt .... "
688 1970 ANNUAL SURVEY OF MASSACHUSE'ITS LAW
§28.1
dant appeared specially, not only denying that it might be subjectedto the personal jurisdiction of the Massachusetts courts under the criteria set forth in Chapter 223A, but also challenging the manner of service upon it, the' applicability ofChapter 223A to suits in equity, and the attempt to secure jurisdiction under Chapter 223A when the acts complained of took place before the effective date of the statute. Chief Justice Wilkins, in one of his last opinions for the Supreme Judicial Court; aJ].alyzed. in d~tail a. number of the defenses raised
and, in so doing, marked out a generally broad and flexible approach to jurisdictional ques~ions raised under G.L.,. c. 223A.
Defendant corporation first contended that service under Chapter 223A could not possibly have been effective upon it if the suit had been commenced prior to the effective date of the statute. The Court did not deal directly with this contention but, upon analysis, ruled that the statute had become effective before the filing of this suit. The defendant argued that Chapter 223A, approved on July 25, 1968, did not become effective until ninety days thereafter in accordance with Article 48, The Referendum, I, of the Amendments to the
Constitu-tion of the Commonwealth.6 The Court pointed out that since this jurisdictional statute related to the powers of the courts, it could not constitutionally be made the subject of a referendum petition7 and that laws not subject to a referendum become effective on the thirtieth day after enactment under G.L., c. 4, §.1. The Court thus ruled that
G.L., c. 223A, became effective on August 24, 1968. This holding was foreshadowed by the decision in deLeo v. Childs,8 where the United
States District Court for the District of Massachusetts, per Julian,
J.,
reasoning as did the Supreme Judicial Court later in Kagan,deter-mined that the 90-day requirement for laws subject to the referendum
was not applicable to G.L., c. 223A, because "[a] statute extending the jurisdiction of courts to certain classes of nonresidents would seem to be one that relates to the 'powers' of courts in the most basic sense."9 The decision in Kagan also settled with finality the question of
retrospective application of the long-arm statute. This question had initially divided the district court in Massachusetts10 until the United ·$tates Court of Appeals
for
the First Circuit settled the matter in favor~of retrospective operation· in Diamond Crystal Salt Co. v. P.]. Ritter
6 Article 4;~; Th~ Referendum, I, of the Amendments to the Constitution of the Commonwealth provides: "No :law passed by the general court shall take effect :earlier th~n--ninety days ~fter it, has become a law, excepting laws declared to be
emergency laws and laws which may not be made the subject of a referendum provision."
7 Id. III, §2. ,
8 304 F. Supp. 593 (D. Mass. 1969). 9 Id. at 596.
10 Compare Singer v. Piaggio & Co. (s.p.a.), Civil No. 68-519 (D. Mass., filed June 20, 1968) (Wyzanski, C:J.) (G:L., c. 223A, operates prospectively only), with deLeq y.,_ (:;tlild.s, ~!>+F. Supp. ·.593 (D. Mass .. 1969) (Julian, J.) (G.L., c. 223A, retro-spective in operation). . . -~··;:: . '_ ..
§28.1
CIVIL PROCEDURE AND PRACI"ICE 689Co.U As Judge Julian had earlier pointed out in deLeop Judge
Al-drich noted that Massachusetts was accustomed to giving statutory procedural changes retrospective effect.13 In view of such established precedent, the court of appeals declined to give determinative weight to the fact that, in the year in which the long-arm statute was adopted, three similar bills were proposed, two of which provided expressly for retrospective operation and failed of adoption.14 The court said:
... Where a provision might be thought to work a substantial alteration, its disappearance during the legislative travel may well be of some significance. Commonwealth v. Benoit, 347 Mass. 1 (1964). This rule should not apply when settled law indicates that the omitted provision would have been surplusage. In such circumstances more is needed in the legislative history than the mere fact of disappearance.15
In view of the "settled law" in Massachusetts that procedural changes are given retrospective effect, the court of appeals was able to disregard the "fact of disappearance" of an express retrospective operation pro-vision from the final version of G.L., c. 223A.
Following the lead of the court of appeals, the Supreme Judicial Court in Kagan agreed that Chapter 223A was retrospective in
opera-tion, but it gave somewhat more scrutiny to the substance-procedure distinction before concluding that the statute is procedural alone and does not affect substance. The Court was fully aware of its earlier holding that a jurisdictional statute based on the theory of "implied consent" by the person sought to be sued to a certain manner of service of process was a statute affecting substantive rights and therefore not retrospective.16 Thus, the Court was careful to state that:
The long-arm statute, however, is not based on implied consent. Upon analysis, what it does is to make the doing of certain acts the basis of jurisdiction over a nonresident. This type of statute which is not based on assumed consent has consistently been held to be remedial and has been applied to a cause of action accruing prior to its enactment ....
"These statutes do not create new wrongs, they merely let
11 419 F .2d 147 (1st Cir. 1969).
12 304 F. Supp. 593, 596-598 (D. Mass. 1969).
13 Welch v. Mayor of Taunton, 343 Mass. 485, 179 N.E.2d 890 (1962); Lindberg v. State Tax Commn., 355 Mass. 141, 138 N.E.2d 753 (1956); Ring v. City of Woburn, !Ill Mass. 679, 43 N.E.2d 8 (1942); Hanscom v. Malden & Melrose Gas Light Co.,
220 Mass. 1, 107 N.E. 426 (1914). '
14 Senate Bill 65 (Mass. Leg. Doc. Senate, Vol. l, No. 1-560, 1968); House Bill 1027 (Mass. Leg. Doc. House, Vol. 3, No. 651-1400, 1968).
111419 F'.2d 147, 148 (lst Cir. 1969).
16 Paraboschi v. Shaw, 258 Mass. 531, 155 N.E. 445 (1927) (statute stating that operator of motor vehicle on Massachusetts highways deemed to appoint Secretary of State his agent for service of process held to be prospective in operation).
690 1970 ANNUAL SURVEY OF MASSACHUSETTS LAW §28.1 local courts reach farther for personal jurisdiction over those who have committed established wrongs."17
Although the conclusion of retrospective operation of the long-arm statute in Kagan is warranted in view of the statute's remedial nature
and the treatment accorded analogous statutes elsewhere, it seems that the Court, while expressly noting the effect of its decision in
Paraboschi v. Shaw,18 was in fact overruling that case sub- silentio
since the distinction drawn does not appear viable. The statute held prospective in operation in Paraboschi19 was identical in effect to G.L.,
c. 223A, in that it made "the doing of certain acts [the operation of a motor vehicle on a Massachusetts highway] the basis of jurisdiction over a non-resident."2o Indeed, both St. 1923, c. 431, §2, and G.L., c. 223A, "merely let local courts reach farther for personal jurisdiction over those who have committed established wrongs."21 While the point is academic in view of the antiquity of St. 1923, c. 431, §2, the Supreme Judicial Court might better have overruled Paraboschi explicitly
rather than have perpetuated a distinction between "implied consent" jurisdictional statutes and others. In light of the distinction drawn by the Court, the legislative draftsman must take care as to the form used.
Another question considered in Kagan was whether the long-arm
statute applies to suits in equity. After the commencement of suit in
Kagan, this question was answered by the legislature which amended
G.L., c. 223A, so that it applies specifically "to a cause of action in law or equity."22 Although this amendment itself might have been treated as retrospective in operation upon the same analysis as discussed above, the Court instead took the opportunity to re-emphasize the broad gloss already given to the phrase "cause of action," which phrase stood alone in the original enactment.
"Cause of action" is a comprehensive expression and may have somewhat variant significations. It ought not be narrowed by at-tempts at definition. It includes a violation of a right or breach of a duty for which the law provides a remedy in the courts. It is the specified subject made the basis of controversy in legal pro-cedure. It is for all purposes of a particular proceeding in court that which is declared in the pleadings as the ground of liability.
Shapiro v. McCarthy, 279 Mass. 425, 430.23
17 1970 Mass. Adv. Sh. 999, 1002, 260 N.E.2d 208, 210·211, citing Ki1breath v. Rudy, 16 Ohio St. 2d 70, 72, 242 N.E.2d 658, 660 (1968).
18 258 Mass. 531, 155 N.E. 445 (1927). See note 16 supra.
19 St. 1923, c. 431, §2, which added §3A to G.L., c. 90.
20 Kagan v. United Vacuum Corp., 1970 Mass. Adv. Sh. 999, 1002, 260 N.E.2d 208, 210.
21 Id. at 1002, 260 N.E.2d at 211, citing Ki1breath v. Rudy, 16 Ohio St. 2d 70, 72, 242 N.E.2d 658, 660 (1968).
22 Acts of 1969, c. 623.
23 1970 Mass. Adv. Sh. 999, 1001, 260 N.E.2d 208, 210.
§28.1
CIVIL PROCEDURE AND PRACTICE691
It was superfluous to amend the original language since, in the eyes of the Supreme Judicial Court, "[t]he same construction would have been reached before the amendment.''24Having determined that Chapter 223A was retrospective in opera-tion and applied to both acopera-tions at law and suits in equity, the Su-preme Judicial Court in Kagan next examined the manner of service
of process. The defendant had contended that the service by registered mail was not reasonably calculated to give him actual notice211 since the address contained no street or number but merely the corporate name, town, and state. The Court had no trouble holding such service suf-ficiently calculated to give actual notice since the address used was that which the defendant itself had printed on its stationery.
The manner of service in Kagan, however, was held to be fatally
defective in its failure to comply with the requirements of G.L., c. 223, §§3726 and 38,27 made applicable to service under the long-arm statute by G.L., c. 223A, §8.28 General Laws, c. 223A, §8, requires that service be made upon a designated individual when such service upon a designated individual is required by any other law of the Common-wealth. General Laws, c. 223, §37, requires, in the case of domestic corporations, that service be made on the president, treasurer, clerk, cashier, secretary, agent, or other officer in charge of its business. General Laws, c. 223, §38, incorporates the same requirement for service upon foreign corporations. Thus, in Kagan, where the
regis-tered letter through which service was sought to be made was sent to the corporation alone and not to one of the individuals designated in Sections 37 and 38, such service was invalid. The Court did not make clear in Kagan whether service must be on the individual by
title alone or by his actual name. It would seem that, in keeping with the remedial nature of this legislation, the former is to be pre-ferred as an injured plaintiff of limited means might not be able to undertake an investigation to ascertain the specific names of the officers of a corporation which has wronged him.
In view of the holding of the Supreme Judicial Court in Kagan
that the manner of service of process on the defendant corporation
24. Ibid.
211 See G.L., c. 22!1A, §6(a).
26 General Laws, c. 223, §3'7, provides in pertinent part: "In an action against a domestic corporation ... service shall be made upon the president, treasurer,
clerk ... cashier, secretary, agent or other officer in charge of its business .... " 27 General Laws, c. 223, § 38, provides in pertinent part: "In an action against a foreign corporation . . . which has a usual place of business in the common· wealth, 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 [§37] relative to service on domestic . corporations in general. . . . "
28 General Laws, c. 223A, §8, provides: "When the law of this commonwealth requires that in order to effect service one or more designated individuals be served, service outside this commonwealth under this chapter shall be made upon the
designated individual or individuals.''
692
1970 ANNUAL SURVEY OF MASSACHUSETTS LAW§28.1
was defective and that, accordingly, the action ought to be abated, the Court did not have occasion to discuss the various criteria set forth in G.L., c. 223A, §3, which must be met before a Massachusetts court may exercise personal jurisdiction over a nonresident under this chapter. Thus far, federal decisions are the sole guideposts for in-terpreting this section of the statute.
In Singer v. Piaggio & Co. (s.p.a.),29 the United States Court of
Ap-peals for the First Circuit discussed the reach of "a cause of action arising from [a] person's (a) transacting any business in this common-wealth [or] (b) contracting to supply services or things in this com-monwealth . . . ."30 In the Singer case, the plaintiff, a resident of Pennsylvania, purchased in that state a Vespa motorscooter manufac-tured by the defendant. The plaintiff was subsequently injured in Florida, allegedly due to a defect in manufacture. At the time of the plaintiff's injury, the defendant sold its scooters to a Massachusetts corporation under a franchise agreement. The scooters were purchased by the franchisee F.O.B., Genoa, Italy. It did not appear from the evidence that the scooter purchased by the plaintiff was ever in Massachusetts.
The court of appeals had little trouble in concluding that the plaintiff's cause of action did not arise from any Massachusetts trans-action as required by Subsection 3(a). In reaching this result, the court relied in part on the construction given New York's long-arm statute in a closely analogous situation.31
Nor did the court believe that this cause of action could be said to have arisen from the defendant's contracting to supply services or things in this commonwealth. The court held that:
It would be an unwarranted extension of the statute to in-clude shipments elsewhere merely because, under the same
con-29 420 F .2d 679 (1st Cir. 1970).
ao General Laws, 223A, §3. in its entirety, provides:
"A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's
"(a) transacting any business in this commonwealth;
"(b) contracting to supply services or things in this commonwealth; "(c) causing tortious injury by an act or omission in this commonwealth; "(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;
"(e) having an interest in, using or possessing real property in this common-wealth; or
"(f) contracting to insure any person, propeny or risk located within this
com-monwealth at the time of contracting."
31 Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 321 (2d Cir. 1964). The court of appeals in Singer expressly disclaimed approval of the state constitutional views expressed by the Court of Appeals for the Second Circuit in Gelfand. 420
F.2d 679, 681 n.!l (1st Cir. 1970).
§28.1
CIVIL PROCEDURE AND PRACTICE 693 tract, goods unrelated to the cause of action may have been introduced into the Commonwealth.s2Since the decision in Singer construes the Massachusetts long-arm
statute to preclude the exercise of jurisdiction in this instance, the court of appeals expressed no opinion on the constitutional questions which may be raised by the statute. Here, where "every relevant event of any importance- the alleged negligence, the sale, the injury -.occurred in some other jurisdiction,"33 the court's holding that there was no personal jurisdiction over the defendant seems clearly warranted.
Not surprisingly, a products liability case set the stage for a discus-sion of whether or not a foreign corporation "derives substantial revenue from goods used or consumed ... in this commonwealth" thereby subjecting it to personal jurisdiction when it causes "tortious
injury in this commonwealth by an act or omission outside this com-monwealth .... 34 In Mark v. Obear & Sons, Inc.,3r> the defendant, a
California corporation being sued for injuries allegedly resulting from a defect in the manufacture of an abrasive cross-cut saw, conceded that it derived approximately $5,000 per year through the sale of its
products in Massachusetts but stated that this figure represented only five-tenths of one percent of its total annual sales. The United States District Court, per Julian,
J.,
held that "annual revenue of $5,000 is not insubstantial as a matter of law."36 While conceding that five-tenths of one percent is a small ratio, the court held that "ratio, how-ever, is not the test since ratio is not itself a quantity but merely the relation of one quantity to another." The court emphasized that:A contrary finding would tend to defeat the legislative purpose of protecting the rights of the citizens of the state. In this case the plaintiff would be required to prosecute his claim in Cali-fornia. The expense and inconvenience confronting a claimant who must go to another State, perhaps across the country, to initiate and prosecute a lawsuit might well prove prohibitive and result in a denial of justice.37
While this emphasis on the remedial nature of long-arm statute is not misplaced,38 and the use of a mechanical dollar test is certainly more administratively workable, it seems unsatisfactory to disregard entirely the percentage of a foreign corporation's sales which take place in Massachusetts. To adhere solely to a mechanical test vitiates
32 Id. at 681. 33 Ibid.
34 G.L., c. 223A, §3{d).
35 313 F. Supp. 37!1 (D. Mass. 1970). 36 Id. at 375.
37 Id. at 376.
694 1970 ANNUAL SURVEY OF MASSACHUSETIS LAW §28.2
the use of the word "substantial" in the statute. Indeed, the entire concept of what is substantial bears on the relation of one quantity to another. Moreover, if other courts follow the lead of the Mark
de-cision and concern themselves solely with the dollar amount of revenue derived from sales in Massachusetts to the complete disregard of overall sales, injustice may result in certain cases. It would seem that the courts should be guided not only by the actual dollar amount of the sales but by both the ratio of such Massachusetts sales to the corporation's overall sales, and the nature of the foreign corporation's business. 39
In considering whether a foreign corporation has derived sufficient revenue from its operations in Massachusetts to subject it to personal jurisdiction here, courts should also consider whether such revenue is so substantial as to indicate that it results from acts "by which the defendant purposely avails itself of the privilege of conducting ac-tivities in [Massachusetts], thus invoking the benefits and protections of its laws."40 A simple mechanical test, albeit administratively more expedient, may not be consonant with the mandates of the United States Constitution. The question of what constitutes "substantial revenue" warrants a thorough analysis of competing considerations. §28.2. Service of process under G.L, c. 90, §.3A: Portents of the future. Since G.L., c. 223A, §3, would seem, by its terms, to permit the exercise of personal jurisdiction over a nonresident motorist who causes injury in Massachusetts through the operation of his motor vehicle,t less frequent use will doubtless be made of the more complex provisions of G.L., c. 90, §§3A-3C.2 These provisions first require service on the registrar of motor vehicles and then provide that notice of such service be sent to the nonresident defendant by
39 Compare Winston, Inc. v. Waldfogel, 292 F. Supp. 473 (S.D.N.Y. 1968), with Verner v. Moran Towing and Transp. Co., 258 F. Supp. 169 (S.D.N.Y. 1966). See Zabin, The Long-Arm Statute: International Shoe Comes to Massachusetts, 54 Mass. L.Q. 101 (1969).
40 Hansen v. Denckla, 357 U.S. 235, 253 (1958), citing International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945).
§28.2. 1 Under G.L., c. 233A, §3, a court may exercise personal jurisdiction "over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's ... causing tortious injury by an act or omission in this commonwealth."
2 General Laws, c. 90, §3A, provides: "The acceptance by a person who is a resident of any other state or country of the rights and privileges conferred by section three, as evidenced by the operation, by himself or agent, of a motor vehicle or trailer thereunder ... shall be deemed equivalent to an appointment by him of the registrar, or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him . . . growing out of any accident or collision in which such person or his agent may be involved ... and said accepta~ce or _operation s?all .be a signification
of his agreement that any such process agamst him . . . which IS so served shall
§28.2
CIVIL PROCEDURE AND PRACTICE695
registered mail.3 During the 1970 SURVEY year, however, the Supreme Judicial Court twice had occasion to construe the provisions of G.L., c. 90, §3A. Both decisions are significant beyond their actual factssince both construe language analogous to that found in G.L., c. 223A, and may well foreshadow the course the Court will take in construing
the latter statute. '
In Segal v. Yates,' the plaintiff was allegedly injured in
Massachu-setts by an automobile owned by, and registered in the name of, the nonresident defendant, Yates, and furnished by him to his daughter, a Massachusetts resident, solely "for her social or personal purposes." At the time of the accident, a friend of Yates' daughter- Nadine Shortall, also a Massachusetts resident- was operating the automo-bile: The Superior Court found that Miss Shortall was neither an employee nor an agent of the nonresident defendant and held that, under these circumstances, service under G.L., c. 90, §3A, was im-proper; the action against Yates was therefore abated.
The Supreme Judicial Court affirmed. Speaking through Chief Justice Wilkins, the Court reasoned that the legislative intent be-hind G.L., c. 90, §3A, was to give Massachusetts residents the oppor-tunity to seek redress in the courts of the Commonwealth when injured here by a motor vehicle operated by a nonresident.5 The Court noted that here the operator was a Massachusetts resident who was neither the agent nor employee of the nonresident defendant Yates. The Court held that to subject the nonresident owner to personal juris-diction upon such facts would require an "express amendment" of G.L., c. 90, §3A.s
The defendant had argued that under G.L., c. 231, §85A, registra-tion of the automobile in Yates' name was prima facie evidence that Miss Shortall was his agent and that under G.L., c. 231, §85B, such registration created a presumption of agency. The Supreme Judicial Court, confirming the earlier reasoning of Judge Ford in Wilson v. Hazard,7 held that both statutes were procedural in nature, relating
solely to evidence and not to substantive rights. Thus, "[t]hey operate to render unnecessary the proof of agency only where the defendant is properly made subject to the jurisdiction of the court. They are not intended to extend the scope of the provisions for service of process under G.L. c. 90, §3A."S
3 General Laws, c. 90, §3C, requires that "notice of such service upon the registrar . . . and a copy of the process shall forthwith be sent by registered mail, with return receipt requested, by the plaintiff to the defendant .... "
4 356 Mass. 449, 253 N.E.2d 841 (1969).
liThe Court cited Pawloski v. Hess, 250 Mass. 22, 144 N.E. 760 (1924); Toczko v. Armentano, 341 Mass. 474, 170 N.E.2d 703 (1960); Hess v. Pawloski, 274 U.S. 352 (1927).
6 356 Mass. 449, -, 253 N.E.2d 841, 843 (1969).
7 145 F. Supp. 23 (D. Mass. 1956).
696
1970 ANNUAL SURVEY OF MASSACHUSETIS LAW§28.2
It would seem that the same result should also have been reached if, in this situation, service had been attempted under the new long-arm statute, G.L., c. 223A. Chapter 223A provides explicitly that personal jurisdiction may be exercised only over a person "who acts directly or by an agent." The agency question is thus similarly presented under Chapter 223A. It seems clear, therefore, that when service is attempted under either G.L., c. 90, §3A, or under G.L., c. ~23A, §3,the question of the operator's agency relationship to the nonresident defendant is one to be resolved in the first instance upon the hearing of the answer in abatement, the court giving no weight to the evi-dentiary presumptions afforded by G.L., c. 231, §§85A and 85B.9
In White v. Hultgren,10 the Supreme Judicial Court was faced with
the issue of whether a petition to vacate judgment entered in a tort action arising out of an automobile accident, where personal juris-diction was originally properly secured over a nonresident defendant by service on the registrar of motor vehicles, was itself an "action or proceeding ... growing out of any accident or collision in which [a nonresident] may be involved while operating a motor vehicle.''11 Hultgren, the nonresident defendant, had been properly served under G.L., c. 90, §3A, and had served interrogatories on plaintiff White, a Massachusetts resident. When White failed to answer the interroga-tories, she became nonsuited and judgment was later entered against her. One day short of a full year later,12 White brought a petition to vacate the judgment against her. Service of the petition was ac-complished by service on tl1e registrar, as had been done in the original suit. Hultgren contended that this was inadequate service since a petition to vacate judgment is a separate and independent proceeding and not one "growing out" of the original automobile tort action.
The Supreme Judicial Court disagreed. While recognizing that "a petition to vacate judgment is a new proceeding, independent of the action in which the judgment was entered,"13 the Court was "so con-vinced by the intent of [G.L., c. 90, §3A]," which intent was to give
9 While the plaintiff in such a situation can expect no help from the statutory presumptions, if he has alleged the agency relationship of the operator to the owner, it is the defendant who, upon a hearing of an answer in abatement, has
the burden of going forward to prove the absence of an agency relationship. See Sackett v. Kellog, 56 Mass. 88, 91 (1848); Rodman, Procedural Forms Annotated, lOA Mass. Practice Series §2!161 (1964).
1o 1970 Mass. Adv. Sh. 21!1, 255 N.E.2d 791. 11 G.L., c. 90, §!lA.
12 A petition to vacate judgment must be brought within one year of the date
of entry of judgment. Id. c. 250, §15.
13 1970 Mass. Adv. Sh., 21!1, 214, 255 N.E.2d 791, 792. See Maker v. Bouthier,
242 Mass. 20, 22, 1!16 N.E. 255, 256 (1922); Beserosky v. Mason, 269 Mass. !125, !128, 168 N.E. 726, 727 (1929); Lynch v. Springfield Safe Deposit &: Trust Co., !100 Mass.
14, 16, 1!1 N.E.2d 611, 612 (19!18); Noyes v. Bankers Indemnity Ins. Co., !107 Mas.~.
567, 570, !10 N.E.2d 867, 869 (1942). .
§28.3
CIVIL PROCEDURE AND PRACTICE 697Massachusetts residents access to the courts of the Commonwealth,14 that it adopted a broad, inclusive interpretation of the phrase "grow-ing out of" and held that service under the provisions of G.L., c. 90, §§3A-3C, was as proper in the case of the petition to vacate judg-ment as it was in the original action.
It would be a step in the opposite direction [that is, contrary to the broad remedial intent of G.L., c. 90, §§3A-3C] to construe the statute as calling for the loss of jurisdiction by procedural shortcomings on the part of one of the parties, even though that party be a resident of this Commonwealth.15
Language analogous to that construed in White v. Hultgren is
found in G.L., c. 223A, §3. Under that statute, personal jurisdiction is permitted "as to a cause of action arising from" certain defined
contacts with the Commonwealth (emphasis supplied). Given the remedial nature of G.L., c. 223A,16 it is difficult to see how a "cause of action arising from" certain defined contacts can logically be con-strued as less extensive in scope than an "action or proceeding grow-ing out of" certain defined contacts. It would thus seem that juris-diction properly obtained under G.L., c. 223A, ought not be lost by "procedural shortcomings" and that a petition to vacate judgment may be served in the manner there described just as the Court has explicitly held in the case of G.L., c. 90, §3A.
§28.3. Quasi in rem jurisdiction: Venue problems of nonresident parties in federal court. Despite recent liberalization of service re-quirements, the United States Court of Appeals for the First Circuit reaffirmed another instance where the right to sue in a federal court does not coincide with the right to remove to a federal court. Both plaintiff and defendant in Nowell v. Nowell1 were nonresidents of
Massachusetts but citizens of different states. The plaintiff had ob-tained a foreign judgment and sought to institute action in federal court in Massachusetts by making an attachment upon funds held by a local trustee of a trust of which the defendant was the life beneficiary. The court of appeals, through Chief Judge Aldrich, affirmed dis-missal of the action by Judge Murray in the district court.
The suit was based on diversity of citizenship. The general venue
14 1970 Mass. Adv. Sh. at 215, 255 N.E.2d at 792, referring to Toczko v. Armentano, 341 Mass. 474, 477, 170 N.E.2d 703, 706 (1960).
15 1970 Mass. Adv. Sh. at 215, 255 N.E.2d at 793. Although giving broad con-struction to the phrase "growing out of," the Court nevertheless found service inadequate here since the petition was heard and decided in the Superior Court before the defendant Hultgren ever received a copy of the petition by registered mail. See Nickerson v. Fales, 342 Mass. 194, 197, 172 N.E.2d 832, 834 (1961).
16 See deLeo v. Childs, 304 F. Supp. 593, 596 (D. Mass. 1969); Mark v. Obear & Sons, Inc. 313 F. Supp. 373, 376 (D. Mass. 1970), discussed supra §28.1.
§28.3. 1417 F.2d 902 (Ist Cir. 1969), afj'g 296 F. Supp. 640 (D. Mass. 1968).
Nowell v. Nowell is the subject of a student casenote in §28.7 infra.
698
1970 ANNUAL SURVEY OF MASSACHUSETIS LAW §28.3statute for diversity cases provides that "a civil action [in diversity cases] may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside."2
Judge Aldrich was willing to go to considerable length to confirm the existence of jurisdiction in the district court. In Nowell, service was on a local trustee bank which held physical evidence of the in· tangibles that constituted the assets of the trust and managed that trust. A second trustee was the defendant; the third trustee was a nonresident who could not be served within the district. Although substituted service on the nonresident trustee, named as a party defen-dant by plaintiff, was not attempted, the court stated that "[t]his defect could be remedied, and for purposes of this opinion, we will assume that it has been done."3 The court then disregarded the
problem of the defendant as trustee.4 After examining several
Massa-chusetts cases, some of which tended in the opposite direction, the court concluded that Massachusetts would regard the debt as suf-ficiently within its borders for purposes of attachment even if per-sonal service is not obtained over all joint debtors. The court noted that "[t]o hold otherwise would be to say that a joint debt, where the debtors were residents of different states, had no presence any-where."5 Quasi in rem jurisdiction, Judge Aldrich reasoned, would exist over the assets or principal of the trust in the state where the managing trustee resides, citing Hanson v. Denckla6 as "leading in that direction."
Despite this analysis, the court of appeals affirmed the district court's dismissal of the case and refused to follow two Seventh Cir-cuit cases7 which had relied upon the provisions of 28 U.S.C. §1655
to meet objections to venue. In a footnote the court noted that, in the two cases cited, no authority was cited and the Court of Appeals for the Seventh Circuit failed to analyze what to the First Circuit seemed to be "the plain language of the statute."8 Significantly, the
court of appeals in Nowell did not base its holding on a lack of juris-diction in the district court. The United States Court of Appeals for the Eighth Circuit in Davis v. Ensign-Bickford Co. had stated:
Jurisdiction can not be acquired by means of attachment. In the absence of an existing lien on property within the jurisdic-tion of the court a federal court must acquire jurisdicjurisdic-tion over
2 28 U.S.C. §139l(a) (1964). 3 417 F.2d 902, 903 (1st Cir. 1969). 4 See id. at 903 n.l.
5 Id. at 904.
6 357
u.s.
235 (1958).7 Huntress v. Huntress' Estate, 235 F.2d 205 (7th Cir. 1956); Graff v. Nieberg, 223 F.2d 860 (7th Cir. 1956).
8 417 F.2d 902, 905 n.3 (1st Cir. 1969).
§28.3 CIVIL PROCEDURE AND PRACTICE
699
the person of a defendant before it is authorized to attach his property or garnish his creditors.9
~~e court in Davis had rejected the applicability of the broad
pro-VISIOns of the Federal Rules of Civil Procedure, Rule 64,10 which in substance states that all remedies providing for seizure of property for the purpose of securing satisfaction of a judgment ultimately to be entered in an action are available under the circumstances and in the manner provided by the law of the state in which the federal court sits. The use of the term "jurisdiction" in Davis can be
mis-leading since, as Judge Aldrich noted in Nowell,11 a garnishee action
commenced in a state court can be entertained in a federal court upon removal.12 Judge Aldrich thus specifically stated that "[i]t is not a basic jurisdictional problem."13
The court of appeals, rather, based dismissal squarely on venue in the traditional sense, on authority of the 1913 case of Big Vein Coal Co. v. Read.14 The United States Supreme Court in Big Vein Coal Co. had stated the settled rule to be that an attachment is "but an
incident to a suit, and that, unless jurisdiction can be obtained over the defendant, his estate cannot be attached in a Federal court."15 The court of appeals in Nowell noted that the Big Vein Coal Co. case had
been modified in Rorick v. Devon Syndicate,16 in other particulars,
and that the 1963 amendment of the Federal Rules of Civil Pro-cedure, Rule 4(e), had further limited Big Vein Coal Co. The court
concluded that modification had not affected the venue requirements .of 28 U.S.C. §139l(a).
As indicated, Rule 4(e) was amended in 1963. The second sentence added by amendment provides:
Whenever a statute or rule of court of the state in which the district court is held provides (I) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an in-habitant of or found within the state, or (2) for service upon or notice to him to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of his property located within the state, service may in either case be made under the circumstances and in the manner prescribed in the statute or rule,l7
9 139 F.2d 624 (8th Cir. 1944). 10 Id. at 626.
11 417 F.2d 902, 904 (1st Cir. 1969).
12 Rorick v. Devon Syndicate, Ltd., 307 U.S. 299 (1939). 13 417 F.2d 902, 904 (1st Cir. 1969).
14 229
u.s.
31 (1913). 15 Id. at 38.16 307
u.s.
299 (1939). 17 Fed. R. Civ. P., rule 4(e).700 1970 ANNUAL SURVEY OF MASSACHUSETTS LAW §28;3
The Advisory Committee on Rules for Civil Procedure noted that the second sentence expressly allows resort in original federal ac-tions to the procedures provided by state law for effecting service on nonresident parties, and that heretofore there had been no provision recognized by the courts for commencing an original federal civil ac-tion by attachment. The Advisory Committee's note cited, inter alia, the holding of the Davis case18 that Rule 64, which refers to
attach-ment, garnishattach-ment, and similar procedures, furnishes only provisional remedies in actions otherwise validly commenced.19 Mitigating its apparent effort to liberalize garnishment actions, the Advisory Com-mittee also stated: "The necessity of satisfying subject-matter juris-dictional requirements and requirements of venue will limit the practical utilization of these methods of effecting service."20 Judge Aldrich specifically cited the Advisory Committee's note. In light of this legislative history, his restrictive interpretation of Rule 4(e) is clearly compelled.
The only other apparent source of broadening quasi in rem juris-diction is found in 28 U.S.C. §1655. Judge Aldrich held that the pro-visions of 28 U.S.C. §1655 were specifically limited to perfection of an existing lien. The court noted that attachment seeks to create a lien for a general creditor, not to determine the prior existence of such a lien. The court refused to follow the Seventh Circuit decisions which appeared to be contrary, citing for its general discussion of Section 1655 the treatise of Professor Moore21 and a decision of the United States Court of Appeals for the Fifth Circuit, holding that a quasi in rem case is not an action to perfect a lien under 28 U.S.C. §1655.22· A statement of Professor Kaplan, made as reporter to the Advisory Committee on Federal Rules, was quoted in a summary of earlier cases holding that Section 1655 does not apply to quasi in rem methods of commencing suit against a nonresident.23 The court reluctantly
con-cluded that the plaintiff could not meet the venue requirements de-spite liberalization of Rule 4(e) and noted that any inconsistency between the scope of authority in the federal courts to hear original suits and the authority to hear suits removed from a state court was for Congress to resolve.
The holding of the district court and the court of appeals that Massachusetts was not the proper venue seems clearly correct. Ap-parently no effort was made to avoid dismissal by seeking to transfer the case to another district under 28 U.S.C. §1406(a), the relevant language of which reads as follows:
18 Davis v. Ensign-Bickford Co., 139 F.2d 624 (8th Cir. 1944).
19 Advisory Committee on Rules for Civil Procedure, Notes on 1963 Amendments, Fed. R. Civ. P., rule 4.
20 Ibid.
21 1 Moore, Federal Practice 1[0.142[2-4] (2d ed. 1964).
22 Dry Clime Lamp Corp. v. Edwards, 389 F.2d 590' (5th Cir. 1968). 2S417 F.2d 902, 905 (1st Cir. 1969).
§28.3
CIVIL PROCEDURE AND PRACTICE 701 The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.The obvious obstacle to transfer, for example, to the plaintiff's dis-trict, is the language which requires that the case could have been brought there. The transferor district only obtained quasi in rem jurisdiction because the res was in that district. A question arises as to how the case could have been brought in the plaintiff's district absent the res. Moore interprets the phrase "any district in which it could have been brought" as meaning
... any transferee-district having jurisdiction over the subject matter and proper venue even though defendants would not originally have been amenable to service in such district, if such a transfer is in the interest of justice.24
Even though the transferee jurisdiction would not have quasi in rem jurisdiction, it would appear to have subject-matter jurisdiction since the requisite diversity and jurisdictional amount exists. In the monu-mental casebook on federal courts by Professors Hart and Wechsler, the authors pose the question of whether the provisions of Section 1406(a) "enable a plaintiff who is unable to serve process in a dis-trict in which the venue is proper to secure personal jurisdiction in a deliberately selected district of improper venue, and then obtain a transfer?"25 Professor Moore, in his treatise, concludes that in such circumstances a transfer over the defendant's objection would not be compatible with the 1949 amendment to Section 1406(a)26 as Section 1406(a), as originally enacted, had permitted transfer for the first time in lieu of dismissal but had used the mandatory language "shall transfer."27 The 1949 amendment required that transfer be in the interest of justice.2s
Professor Moore's point seems well taken and it seems unlikely that a federal court would find it in the interest of justice to transfer a case so conceived. This view would render it unnecessary to de-termine whether the implications of the much-discussed case of
Hoff-man v. Blaski,29 construing analogous provisions of 28 U.S.C. §1404(a),
will permit transfer to a district where the plaintiff would have the right to bring the action.so The view might also be taken that if the state court in the transferee district would not hold that it had
juris-24 I Moore, Federal Practice 1[0.146[5], at 1910 (2d ed. 1964).
211 Hart & Wechsler, Federal Courts and the Federal System 951 (1953).
26 But see Ackert v. Bryan, 299 F.2d 65 (2d Cir. 1962).
271 Moore, Federal Practice 1[0.145[5], at 1784 n.23 (2d ed. 1964).
28 Act of May 24, 1949, c. 139, §81, 63 Stat. 101, presently 28 U.S.C. §1406(a). 29 363
u.s.
335 (1960).30 See Barron and Holtzoff, Federal Practice Be Procedure §862, at 327 (Supp. 1969).
702
1970 ANNUAL SURVEY OF MASSACHUSETIS LAW§28.4
diction over the res, then a federal court in the same state would not be a forum to which transfer could properly be made.31§28.4. Summary judgment: Toward uniformity with federal rules. The Supreme Judicial Court during the 1970 SuRvEY year took several steps in the direction of making Massachusetts' summary judg-ment procedure more like that under the Federal Rules of Civil Procedure. In the past, one factor influencing the selection of a forum by a plaintiff in Massachusetts has been the view that summary judgment was more readily obtainable in federal district court than in the Superior Court.1 Lawyers could recite motions for summary judgment which resulted in the case being advanced on the trial list but which did not obviate the need for a full trial on the merits. However correct this view may have been, the Supreme Judicial Court has recently made deliberate efforts to utilize federal precedents and thus make summary judgment procedure more consistent in both forums.
Uniformity with federal practice does not compel liberalization of the conditions under which summary judgment can be obtained. In Hub Associates, Inc. v. Goode,2 the Supreme Judicial Court ruled
that a case reported to it by the trial judge on motion of the defen-dant for summary judgment was not in fact ripe for final disposition. The case consisted of two actions of contract in which the plaintiff sought to recover for architectural and engineering services rendered to the defendants in connection with two construction projects. The answers in each case set up the defense of illegality. Reliance was placed upon the Massachusetts statute which prohibits engaging in the practice of architecture unless properly registered.3 Chief Justice Wilkins noted that, if successful, the claim of illegality would wholly defeat the plaintiff's suit for substantial compensation and would
31 See Lewis v. Hegwood, 300 F.2d 697 (D.C. Cir. 1962).
§28.4. 1 General Laws, c. 231, §59, provides in part: "In any action of contract, except an action against an executor or administrator for liability of the deceased, at any time after the completion of the pleadings counsel for either party may file an affidavit that in his belief there is no genuine issue of material fact but only questions of law in connection with all or some part of the action or of some issue determinative thereof, and may move for an immediate entry of judgment thereon. Said motion may be accompanied by affidavits on personal knowledge of admis-sible facts as to which it appears affirmatively that the affiants would be compe-tent to testify." By Acts of 1965, c. 491, §1, the summary judgment statute was made applicable to suits in equity or petitions for declaratory judgment which involve rights under a written contract. There is also statutory provision in G.L., c. 231, §59B, for entry of immediate judgment in actions of contract where the plaintiff seeks to recover a debt or liquidated demand based on an affidavit of no defense by a person who can swear to the facts of his own knowledge verifying the cause of action. Federal Rules of Civil Procedure, Rule 56, does not limit summary judgment to any particular kind of action and is predicated on a deter-mination that there is no genuine issue as to any material fact.
21970 Mass. Adv. Sh. 713, 258 N.E.2d 733.
a G.L., c. 112, §60K.
§28.4 CIVIL PROCEDURE AND PRACTICE 703
result in a windfall to the defendants. The Court was obviously re-luctant to permit what it termed "[f]orfeiture ... summarily upon sketchy information."4 With this starting point, the Court pointedly
relied upon federal precedents. Chief Justice Wilkins began: "We fully approve the rules of the Supreme Court of the United States ... ,"5
citing United States v. Diebold, lnc.,6 which held that all summary judgment inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the mo-tion. At another point, the Court cited two decisions of the United States Court of Appeals for the Second Circuit for the proposition that the moving party must affirmatively show that there is no real issue of fact. 7
Applying these precedents, the Supreme Judicial Court ruled that it could not be certain that the issues presented were solely questions of law since the services performed were not exclusively architec-tural and the record did not completely delineate the nature of the services, who performed them, or for what services the defendants had paid. Drawing inferences most favorable to the opposing party raised a definite issue as to whether the actions were brought on oral or written contracts. The notices to admit facts showed that one in-dividual who was not a registered architect did exercise supervision over some services, but not over architectural services, and it was un-clear whether the individual who did exercise such control was regis-tered. It was also unclear from the record whether the statute had been violated in other particulars. Stating that it could not grant or withhold summary judgment simply to save time or expense, the Court remanded the case for further proceedings.
The decision in Hub Associates makes it clear that a willingness to follow federal precedent does not automatically result in the grant of summary judgment. An affirmative showing must be made that there is no real issue of fact to be decided, and the moving party has the burden of eliminating all doubt as to the existence of real issues of fact. The defendants had relied upon the pleadings, the plaintiff's answers to interrogatories, and his replies to notices to admit facts. With the exception of affidavits and stipulations, these are the only materials authorized by statute upon which the motion may be based.8 Many of the factual issues noted by the Court appear
to have been within the knowledge of the plaintiffs and an affidavit by officers of the defendant would have been defective. Further ad-missions by notice under the statute might have been possible, but
4 1970 Mass. Adv. Sh. 713, 714, 258 N.E.2d 733, 735. 5 Id. at 715, 258 N.E.2d at 735.
6 369 u.s. 654, 655 (1962).
7 Empire Electronics Co. v. United States, 3ll F.2d 175 (2d Cir. 1962); American Manufacturers Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 278 et seq. (2d Cir. 1967).
s G.L., c. 231, §59.
704
1970 ANNUAL SURVEY OF MASSACHUSETTS LAW§28.4
the simpler procedure would have been to take the deposition of officers of the plaintiff. Unfortunately, the deposition as such could not have been used to support a motion for summary judgment be-cause it is not expressly authorized in the statute.9 Under the Federal Rules of Civil Procedure, a deposition can be used to support a motion for summary judgment.10 A cumbersome effort to
circum-vent the deficiency requires counsel to follow a deposition eliciting favorable facts with a notice to admit in the language of the answers of the witness. This procedure should be unnecessary. The legislature should amend the statute to allow a deposition to be used in support of a motion for summary judgment.
In two other cases, the Supreme Judicial Court affirmed the grant-ing of summary judgment. In Manganaro Drywall, Inc. v. Penn-Simon Construction Co.,n the plaintiff agreed to perform certain work and furnish certain materials in connection with several buildings being constructed by the defendant. After completion of the work, a dis-pute arose as to the amount due to the plaintiff from the defendant and the parties entered into a written agreement providing for periodic payments of an agreed sum to resolve the dispute. One clause in the contract provided that if any of the payments were not made,
6 percent interest from the date of completion of the contract would become immediately due and payable on the original agreed balance. The plaintiff moved for judgment on undisputed facts,l2 attaching an affidavit of its president alleging the agreement, partial payment, and failure to pay the balance. The defendant filed an affidavit signed by its counsel asserting that the alleged agreement was unconscionable and void as contrary to public policy, on the ground that the in-terest sought was based upon the original balance from the date of completion of the contract and did not take into consideration sub-stantial interim payments before default.
The Court ruled that whether the agreement was contrary to public policy was a question of law, not of fact. The provision for interest was held not to be unconscionable. The agreement of the parties controlled and summary judgment was affirmed. The defendant raised in its appellate brief, for the first time, an argument that the parties by inadvertence had omitted certain words from the agree-ment that would have shown a different intention with respect to payment of interest. The Court refused to allow such a claim on the ground that the defendant's counteraffidavit had made no such alle-gations. The Court's language emphasizes its intent that summary judgment should be a useful procedural tool: "To permit the defen-dant to raise before this court defences and factual issues which it did
9Ibid.
10 Fed. R. Civ. P., rule 56(c).
11 1970 Mass. Adv. Sh. 969, 260 N.E.2d 182. 12 G.L., c. 231, §59.
§28.4 CIVIL PROCEDURE AND PRACTICE 705
not raise before the trial court would make a mockery of the statutes on summary judgment and defeat their very purpose. We will not allow it to be done."13
In another opinion involving a dispute arising out of a construc-tion contract, the Supreme Judicial Court affirmed summary judg-ment through a careful analysis of the nature of alleged issues of fact. In Limbach Co. v. George B. H. Macomber Co.,l4 both parties had moved for summary judgment and submitted affidavits. The issue presented was whether the plaintiff, a plumbing subcontractor, was required to provide internal piping within certain fume hoods in the laboratory for the Life Sciences Building at the Massachusetts Insti-tute of Technology. At the time the plaintiff's bid was submitted to the defendant general contractor, the final design of the fume hoods had not yet been made. No details on the internal piping were avail-able, and the contract between the plaintiff and the defendant was based only upon the plans and specifications then in existence. Those plans showed rectangular boxes depicting the fume hoods, circles showing the outlets inside the hoods, and parallel lines showing connections only to the outside of the hoods. Neither the fume hoods nor the outlets inside the hoods for water, gas, and air services were to be furnished by the plaintiff. The defendant later subcontracted with a third party for the construction of the fume hoods under specifications which did not include internal piping. Those specifica-tions were not then disclosed to the plaintiff.
The defendant argued that there was a genuine issue of material fact as to the meaning of the lines and symbols on the plans incorpo-rated into the contract between the plaintiff and defendant. The de-fendant's affidavit had asserted that the circles in the plans were valves and not outlets as claimed by the plaintiff and had alleged a practice in plumbing drawings to omit lines showing the direction and location of piping between points. The Court noted that where parties employ a symbol not in ordinary use and assert conflicting interpretations of what it means, then the meaning of the symbol is a question of fact. However, the Court adverted to a definition of the circles as outlets in the plans themselves. As to the alleged custom in the trade, the Court interpreted the defendant's affidavit as falling short of "showing that the omission of the lines within the fume hoods ... indicated that the connections were . ~ . included in the plumbing
specifications" for which the plaintiff was responsible.15 The Court
ruled that, in any event, the specification language of "valved con-nections ... to the fume hoods" could not be extended to include the piping within the hoods. The Court's interpretation thus precluded any ge~uine issue of fact.
13 1970 Mass. Adv. Sh. 969, 974, 260 N.E.2d 182, 186. 14 1970 Mass. Adv. Sh. 747, 258 N.E.2d 548. 111 Id. at 751, 258 N.E.2d at 551. '
706
1970 ANNUAL SURVEY OF MASSACHUSETTS LAW§28.4
In a ruling that may have considerable future importance, the Court held that the plaintiff's engineer could state his interpretation of the plans and specifications and that such an affidavit complied with the statute.16 The defendant had argued that the affidavit was not made on personal knowledge and was therefore defective. The Court, in effect, qualified the engineer as an expert based upon his engineering qualifications, his experience in reading plans and speci-fications, and his examination of the plans and specifications in issue. The Court concluded that the plaintiff's engineer would be compe-tent to testify that the plans contained no requirements for internal plumbing and thus could file an affidavit. This assertion was termed "a statement" by the Court.lTIt should be noted that summary judgment was permitted even though based upon the affidavit of an expert. While it is possible that the expert's opinion was considered superfluous in light of the language of the specifications, the Court did not so hold. Further-more, the affidavit of the defendant was not viewed by the Court as controverting the opinion stated in the plaintiff's affidavit, although it is clear that the defendant disputed the meaning of the symbols in the plan. At a trial wherein the finder of fact is a jury, the jurors are not compelled to accept expert opinions, even if the expert opinions are uncontradicted.1S If the expert opinion was necessary, it would appear that the summary judgment procedure had circumvented the right of a defendant to a finding by a jury as to the truth of the ex-pert's opinion.
In the same decision, the Court rejected an architect's interpreta-tion of the specificainterpreta-tions as stated in the defendant's affidavit and not contradicted by the plaintiff. The Court noted that there was some doubt as to the architect's authority to render a binding interpreta-tion of the specificainterpreta-tions and ruled that the quesinterpreta-tion had not been submitted to the architect for resOlution under the contract. The de-fendant relied upon a letter from the architect which was stated by the Court to be incapable of reasonable construction as a decision interpreting responsibility between subcontractors for the piping within the fume hood11. The Court viewed the letter as an opinion that the owner was entitled to internally-piped fume hoods from the general contractors.
The defendant also argued that the architect had orally stated that the plumbing specifications covered the piping within the fume hoods. If the architect had filed his own affidavit alleging such an
opinion, a genuine issue of fact would apparently have existed. between the plaintiff's expert and the defendant's. The Court did not discuss the hearsay nature of the architect's statement as set forth
16 G.L., c. 231, §59.
171970 Mass. Adv. Sh. 747, 751, 258 N.E.2d 548, 552.
18 Danaghan v. Dewey, 340 Mass. 73, Hl2 N.E:~d 807 (1959); Dodge v. Sawyer, 288 Mass. 402, 193 N.E. 15 (1934).
§28.5
CIVIL PROCEDURE AND PRACTICE707
in the defendant's affidavit, but summarily rejected the argument that the architect's interpretation was binding. The Court did not squarely face the question of whether, as a matter of law, no expert could have asserted that the plans incorporated in the plaintiff's contract called for internal plumbing. In light of its failure to even mention the cases permitting the fact-finder to disregard an expert's opinion, the Court may have taken the view that the expert testimony was superfluous. Whatever the rationale, the Court's strenuous efforts to dispose of the case on summary judgment should encourage the bar to utilize this procedure more often.
A brief memorandum opinion entitled Federico Equipment Corp. v. Kargman19 confirms the view that summary judgment is not to
be denied simply because the opposing party has filed what purports to be a contradictory affidavit. The Court examined an affidavit which, according to the plaintiff, contradicted the affidavit of the defendant who had moved for summary judgment on the ground that he had made no contract with a subcontractor. The plaintiff's affidavit asserted that persons who stated that they represented the owners of certain property had telephoned and advised him that if
the subcontractor which had hired the plaintiff failed to pay him, the owners would pay for the work. The Court held that the affidavit sustained, rather than contradicted, the claim of the defendants that they had not hired the plaintiff. The Court also stated that the affi-davit had not shown, specifically and clearly, reasonable grounds for belief that contradiction could be presented at trial but could not be furnished by affidavit. The Court held the affidavit of the plaintiff deficient and ruled that the facts alleged in the defendant's affidavit were to be taken as admitted. Accordingly, the order granting motion for judgment was affirmed.
§28.5. Demurrers to declarations: Substitute declarations. The Supreme Judicial Court in New England Merchants National Bank of Boston v. Old Colony Trust Co.1 reaffirmed the right of the plaintiff
to take three swings at stating his claims and not be declared out of court, despite the sustaining of three demurrers. The case was brought by the administrator of an estate to recover the amount represented by certain stock certificates of a defendant company for which Old Colony was transfer agent. Redemption of these shares had been called for and partial liquidating dividends had been declared. In their original declaration and two substitute declarations, the plain-tiffs sought to properly frame a theory of recovery based on the rights of their intestate as a holder of negotiable securities, although the intestate had never registered transfer of the stock to him from his seller. The Court held that the second substitute declaration stated a cause of action.
191970 Mass. Adv. Sh. 837, 258 N.E.2d 785. §28.5. 1 1970 Mass. Adv. Sh. 57, 254 N.E.2d 891.
