Cocker v. New York, O. & W. Ry. Co.

• Decision Date: 15 June 1918
• Citation: 253 F. 676
• Parties: COCKER v. NEW YORK, O. & W. RY. CO.
• Court: U.S. District Court — Southern District of New York

253 F. 676

COCKER v. NEW YORK, O. & W. RY. CO.

United States District Court, S.D. New York.

June 15, 1918

Watts Oakes & Bright, of Middletown, N.Y., for the motion.

William L. Schneider, of New York City (Edward J. McCrossin, of New York City, of counsel), opposed.

MAYER District Judge.

This is a motion by the defendant to stay the trial of this action during the continuance of federal control over the defendant Railway Company. The motion is made in view of General Order No. 26, issued by the United States Railroad Administration acting by the Director General of Railroads.

Several motions coming under General Orders 18, 18a, and 26 have been disposed of by me from the bench without a written opinion but I have stated orally my reasons for granting or denying motions, as the case may be.

In this memorandum, for the information of the bar, I shall deal, not only with the facts particularly applicable to this case, but shall restate what I have already endeavored to make clear in oral statements from the bench.

It is unnecessary to review the legislation which created the United States Railroad Administration and the office of Director General. Under the act certain authority was conferred upon the Director General, and I shall assume that he had the power to make General Orders 18, 18a, and 26, and in such circumstances such General Orders, when and if lawfully made, have the force and effect of law. General Orders 18 and 18a are prospective, and deal with actions thereafter begun. These orders are as follows:

'United States Railroad Administration.

'Office of the Director General, Washington.

'April 9, 1918.

'General Order No. 18.

'Whereas, the act of Congress approved March 21, 1918, entitled 'An act to provide for the operation of transportation systems while under federal control,' provides (section 10) '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 with any order of the President. * * * But no process, mesne or final, shall be levied against any property under such federal control'; and

'Whereas, it appears that suits against the carriers for personal injuries, freight and damage claims, are being brought in states and jurisdictions far remote from the place where plaintiffs reside or where the cause of action arose, the effect thereof being that men operating the trains engaged in hauling war materials, troops, munitions, or supplies are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more, which practice is highly prejudicial to the just interests of the government and seriously interferes with the physical operation of the railroads, and the practice of suing in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs:

'It is therefore ordered, that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resides, or in the county or district where the cause of action arose.

'W. G. McAdoo, Director General of Railroads.'

'United States Railroad Administration.

'Office of the Director General, Washington.

'April 18, 1918.

'General Order No. 18a.

'General Order No. 18, issued April 9, 1918, is hereby amended to read as follows:

''It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose.'

'W. G. McAdoo, Director General of Railroads.'

It will be seen from the foregoing that this court will dismiss any case brought after a promulgation of the foregoing orders in a county or district elsewhere than where the plaintiff resided at the time of the accrual of the cause of action or where the cause of action arose. There is no difficulty in construing General Order No. 18 as amended by General Order No. 18a. General Order 26 is as follows:

'United States Railroad Administration.

'Office of the Director General, Washington, D.C.

'May 23, 1918.

'General Order No. 26.

'Whereas, the act of Congress approved March 21, 1918, entitled 'An act to provide for the operation of transportation systems while under federal control,' provides (section 10) '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 with any order of the President. * * * But no process, mesne or final, shall be levied against any property under such federal control,' and authorizes the President to exercise any of the powers by said act or theretofore granted him with relation to federal control through such agencies as he might determine; and

'Whereas, by a proclamation dated March 29, 1918, the President, acting under the Federal Control Act and all other powers him thereto enabling, authorized the Director General, either personally or through such divisions, agencies, or persons, or in the name of the President, to issue any and all orders which may in any way be found necessary and expedient in connection with the federal control of systems of transportation, railroads, and inland waterways as fully in all respects as the President is authorized to do, and generally to do and perform all and singular acts and things and to exercise all and singular the powers and duties which in and by the said act, or any other act in relation to the subject hereof, the President is authorized to do and perform; and

'Whereas, it appears that there are now pending against carriers under federal control a great many suits for personal injury, freight and damage claims, and that the same are being pressed for trial by the plaintiffs in states and jurisdictions far removed from the place where the persons alleged to have been injured or damaged resided at the time of such injury or damage, or far remote from the place where the causes of action arose, the effect of such trials being that men operating the trains engaged in hauling war materials, troops, munitions, or supplies are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more, which practice is highly prejudicial to the just interests of the government and seriously interferes with the physical operation of railroads, and the practice of trying such cases during federal control in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs:

'It is therefore ordered that upon a showing by the defendant carrier that the just

...