Ga. Southern &. F. Ry. Co v. Smiley, (No. 2302.)

• Decision Date: 11 August 1921
• Docket Number: (No. 2302.)
• Citation: 108 S.E. 273,151 Ga. 795
• Court: Georgia Supreme Court
• Parties: GEORGIA SOUTHERN &. F. RY. CO. v. SMILEY.

151 Ga. 795

108 S.E. 273

GEORGIA SOUTHERN &. F. RY. CO.

v.SMILEY.

(No. 2302.)

Supreme Court of Georgia.

Aug. 11, 1921.

(Syllabus by the Court.)

Error from City Court of Valdosta; J. G. Cranford, Judge.

Action by Cora Smiley against the Georgia Southern & Florida Railway Company. A demurrer to the petition was overruled, and defendant brings error. Reversed.

J. E. Hall and C. J. Bloch, both of Macon, and Patterson, Copeland & Slater, of Valdosta, for plaintiff in error.

F. S. Harrell, of Valdosta, for defendant in error.

HILL, J. Cora Smiley brought suit against the Georgia Southern & Florida Railway Company, in the city court of Valdosta. to recover damages in the sum of $5,000, on account of alleged personal injuries sustained by the plaintiff. The material portions of the petition were in substance as follows:

On December 11, 1917, plaintiff purchased from the agent of the defendant at Valdosta a ticket to Lake City, Fla., and was wrongfully directed to a train of the defendant going to Jacksonville, instead of to Lake City. By reason of being directed to the wrong train the plaintiff was ejected by the conductor, and in alighting from the train she sustained certain personal injuries. The petition was filed on June 23, 1920, more than two years after the alleged tort. On the date of the injuries complained of, and until November 11, 1918, the United States of America was actively engaged in war with Germany; and on account of the war the physical properties of the defendant were, on January 1, 1918, taken possession of by the United States government, and were operated by the government through its Director General of Railroads from that date until March 1, 1920, and the agents of the defendant became the agents of the United States government, and no service could be perfected upon the defendant during that period. It was further alleged that under and by virtue of an act of Congress approved February 28, 1920 (41 Stat. 456), the statute of limitations was suspended as to the cause of action herein alleged, for and during the period of federal control of the defendant's properties. Certain acts of negligence which contributed to the injury were alleged; and judgment was prayed against the defendant for the amount of damages set out above.

The defendant filed its demurrer to the petition, setting out, among other grounds, that the petition showed on its face that the claim set up by the plaintiff is barred by the statute of limitations of the state of Georgia. The defendant demurred specially to paragraph 12 of the petition, on the ground that the Congress of the United States did not have, at the time of the passage of the Transportation Act, which was approved February 28, 1920, and has not now, the constitutional authority to toll or change the statute of limitations of the state of Georgia, as related to the cause of action attempted to be set up in the petition. The demurrer was overruled by the trial court upon each and every ground, both general and special, and the defendant excepted.

The petition alleged that the cause of action arose on December 11, 1917. The petition was filed on June 22, 1920, more than two years after the date of the alleged injury. Civil Code (1910) § 4497, declares that actions for injuries done to the person shall be brought within two years after the right of action accrues. The suit is therefore barred, unless the above statute is tolled by the Transportation Act of Congress passed in 1920. That act provides that—

"The period of federal control shall not be computed as a part of the periods of limitation in actions against carriers, or in claims for reparation to the Commission for causes of action arising prior to federal control." Fed. Stat. Ann. 1920 Supp. p. 79 (f).

The question arises, therefore, whether the above act of Congress, declaring the suspension of the statute of limitations, is binding on the state courts. On March 21, 1918, Congress passed an act (Fed. Stat. Ann. 1918 Supp. p. 757) known as the federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4P). In section 10 (section 3115 3/4j) it is provided:

"That carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. Nor shall any such carrier be entitled to have transferred to a federal court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the federal control of such carrier; and any action which has heretofore been so transferred because of such federal control or of any act of Congress or official order or proclamation relating thereto shall, upon motion of either party, be transferred to the court in which it was originally instituted. But no process, mesne or final, shall be levied against any property under such federal control."

From reading the above section of the act of Congress of 1918 it will be seen that actions at law or suits in equity might be brought by and against common carriers, and judgments rendered, as then provided by law; and it was also provided that no defense should be made to such suits upon the ground that the carrier was an instrumentality or agency of the federal government. It seems, therefore, that the plaintiff in the present case could have brought and maintained her suit in the state courts, even under the federal statute, at any time within the period fixed by the state statute. Not having brought the suit within the period fixed by the state statute, can the state statute be tolled by the federal statute of 1920? There is nothing in the federal act of 1920 which expressly, or by necessary implication, repeals the authority conferred by the act of 1918 to bring the suit in the state courts according to law. The federal Control Act specifically preserves the right of parties who had causes of action to bring them against the carriers during the period of federal control and to prosecute such suits to judgment. The act also provides that executions based on judgments so obtained should not be levied upon the property of the carriers in the hands of the federal govern ment. See section 10 of the Federal Control Act, supra. But the act expressly conferred the right to sue and to prosecute the suit to judgment. And see McGregor v. Great Northern (N. D.) 172 N. W. 841, 845 (4 A. L. R. 1635), where it was said that—

"Both the President in his original proclamation and Congress in the act of March 21, 1918, clearly contemplated that the liability of the carrier should continue. * * * Since the liability continued, it is competent for the suitor to resort to the ordinary legal remedies to establish it, " etc.

It is argued here that suit could not have been brought, because service could not be perfected on the defendant during the period of federal control. As has been pointed out, the plaintiff had the right to sue within the period fixed by the statute, and also under the Federal Control Act; and if she had the right to sue, she would have the right to perfect service on the defendant if a resident of the state...