Dahn v. McAdoo

• Decision Date: 16 April 1919
• Docket Number: 167.
• Citation: 256 F. 549
• Parties: DAHN v. McADOO, Director General of Railroads, et al.
• Court: U.S. District Court — Northern District of Iowa

256 F. 549

DAHN v. McADOO, Director General of Railroads, et al.

No. 167.

United States District Court, N.D. Iowa, Eastern Division.

April 16, 1919

This action was commenced November 22, 1918, to recover damages for a personal injury sustained by the plaintiff on May 29 1918, while employed as a United States railway mail clerk upon the Illinois Central Railroad, because of the alleged negligence of the railroad company in the construction and maintenance of its track, bridges, and roadbed, and the employes operating the train upon which the plaintiff was so employed. The defendant railroad company, at the time of such injury, had been taken over by the President under the act of Congress approved August 29, 1916 (39 Stat.p. 645, c. 418) and was being operated by the Director General of Railroads in the prosecution of the war against the Imperial German government.

The action was brought originally in this court against the railroad company and William G. McAdoo then Director General of Railroads, in the manner and as authorized by the statutes of Iowa in suits brought against railroad companies in that state. At the December term, 1918, of this court, the defendants separately appeared, and each moved to dismiss the action against him, respectively, upon the ground that under General Order No. 50, promulgated by the Director General of Railroads on October 28, 1918, the action could not rightly be maintained against either the railroad company or the Director General of Railroads. The motion was sustained as to the defendant Illinois Central Railroad Company because of said General Order No. 50; but the motion as to the Director General was overruled, and orders were duly entered of record accordingly on December 5, 1918.

The Director General was granted leave to file a demurrer to the petition within a time stated, should he be so advised, and on December 16, 1918, filed a demurrer to the petition challenging the right of the plaintiff to maintain the action as against him substantially upon the grounds:

(1) That the action was commenced after the promulgation by Director General McAdoo on October 28, 1918, of General Order No. 50, and cannot therefore be maintained against either defendant.

(2) That the injury to the plaintiff and damages claimed by him occurred after the 28th day of December, 1917 (when the transportation systems of the United States were taken over by the President, and the operation thereof placed under the control of the Director General of Railroads), and the Director General is not liable for any damages suffered by the plaintiff thereafter.

(3) That neither the Director General nor the government is in any event liable for injuries received by the plaintiff (who the petition shows was a railway mail clerk upon the Illinois Central Railroad in the performance of his duties as such clerk), for the act of Congress approved September 7, 1916 (39 Stat.p. 742, c. 458 (Comp. St. Secs. 8932a-8932uu)) providing 'compensation for employes of the United States suffering injuries while in the performance of their duties,' excludes any other recovery or method of recovery by civil employes of the United States for injuries suffered by them in the performance of their duties than in said act provided, and the claim presented by the plaintiff in this action shows no cause of action upon which a recovery may be had against the Director General of Railroads, or against the government.

Hurd Lenehan, Smith & O'Connor, of Dubuque, Iowa, for plaintiff.

Helsell & Helsell, of Ft. Dodge, Iowa, and Mr. Fletcher, of Chicago, Ill., for defendant Director General.

REED, District Judge (after stating the facts as above).

The first ground of the demurrer is substantially a repetition of the motions to dismiss the action against both defendants, and, in view of the ruling heretofore made on those motions, needs but little consideration. By the act of Congress approved August 29, 1916, it is provided:

'The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable.' 39 Stat.p. 645, c. 418 (Comp. St. Sec. 1974a).

Pursuant to that authority the President on December 26, 1917, issued his proclamation, in which, among other things, it is recited:

'It is hereby directed that the possession, control, operation and utilization of such transportation systems hereby by me undertaken shall be exercised by and through William G. McAdoo, who is hereby appointed and designated Director General of Railroads. Said Director may perform the duties imposed upon him, so long and to such extent as he shall determine, through the boards of directors, receivers, officers and employes of said systems of transportation. Until and except so far as said Director shall from time to time by general or special orders otherwise provide, the boards of directors, receivers, officers and employes of the various transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers in the names of their respective companies.

'Until and except so far as said Director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission, and to all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. But any orders, general or special, hereafter made by said Director, shall have paramount authority and be obeyed as such. ' Comp. St. Sec. 1974a.

By the act of Congress approved March 21, 1918, called the Federal Control Act, it is provided in section 10 thereof:

'Sec. 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 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. * * * But no process, mean or final, shall be levied against any property under such federal control.' 40 Stat.p. 451, c. 25 (Comp. St. 1918, Sec. 3115 3/4j).

On October 28, 1918, pursuant to such act of Congress and the proclamation of the President, the Director General promulgated General Order No. 50, which, so far as deemed material, is as follows:

'Whereas, since the Director General assumed control of said systems of transportation, suits are being brought and judgments and decrees rendered against carrier corporations on matters based on causes of action arising during

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