Davis v. Griffith

• Decision Date: 29 April 1924
• Docket Number: Case Number: 13417
• Citation: 103 Okla. 137,1924 OK 499,229 P. 499
• Parties: DAVIS, Director General R. R., v. GRIFFITH et al.
• Court: Oklahoma Supreme Court

1924 OK 499

229 P. 499

103 Okla. 137

DAVIS, Director General R. R., v. GRIFFITH et al.

Case Number: 13417

Supreme Court of Oklahoma

Decided: April 29, 1924

Syllabus

¶0 1. Railroads--Nature of Action Against Federal Agent.

A suit against the Federal Agent, under section 206 of the Transportation Act of 1920, based on a cause of action arising under federal control of railroads, is a suit against the United States government.

2. United States--Suit Against--Necessity for Government's Consent.

The United States government cannot be sued without its consent, and, if it gives its consent, it has the right to prescribe the manner, terms, and conditions upon which it may be sued; and it can be sued only in the manner and by a strict compliance with the terms and conditions prescribed, whether the same are reasonable or unreasonable.

3. Railroads -- Federal Control -- Action Against Government--Conditions.

Under section 206 of the Transportation Act of 1920, the United States government consented to be sued. after the termination of federal control of railroads, upon a cause of action arising during federal control, in the name of the agent appointed by the President for such purpose and in office at the time the action was commenced.

4. Same--Federal Agents--Substitution of Parties--Defective Process.

A suit under Transportation Act of 1920, based upon a cause of action arising during federal control of railroads, brought against John Barton Payne, a former presidential agent, did not make the United States government a party defendant to such action; and an attempted substitution of James C. Davis, the duly appointed and acting presidential agent, for John Barton Payne, Agent, resigned, did not confer jurisdiction over the United States government and such jurisdiction could be acquired only by proper service of process.

Commissioners' Opinion, Division No. 2.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Frank Griffith and L. D. Alexander against James C. Davis, Director General of Railroads, Agent under section 206 of the Transportation Act. 1920. Judgment for plaintiffs, and defendant brings error. Reversed and remanded, with instructions.

C. O. Blake. W. R. Bleakmore, A. T. Boys, and W. F. Collins, for plaintiff in error.

Suits & Hall, for defendants in error.

JARMAN, C.

¶1 This action was commenced in the district court of Oklahoma county on April 6, 1921, by Frank Griffith and L. D. Alexander against "John Barton Payne, Agent, United States Railway Administration, Chicago, Rock Island & Pacific Railway Company," to recover damages alleged to have been caused by the negligent delay in the transportation of a shipment of cattle from Texline, Tex., to Oklahoma City, Okla. Summons was served on E. E. Blake, service agent of the C., R. I. & P. Ry. Co. On July 15, 1921, on motion of the plaintiffs, the court made an order directing that "James C. Davis, Director General of Railroads as Agent under Section 206 of the Transportation Act of 1920" be substituted as party defendant for "John Barton Payne, Agent, United States Railway Administration, C., R. I. & P. Ry. Co." On July 16, 1921, without issuing a summons or procuring service thereof on "James C. Davis, Director General of Railroads as Agent under Section 206 of the Transportation Act of 1920," and without notice to him, the court rendered a default judgment against the said defendant for the amount sued for. On July 29, 1921, the said defendant, James C. Davis, the agent designated under Transportation Act of 1920, entered a special appearance and moved the court to vacate and set aside the judgment rendered against him for the reason that the court acquired no jurisdiction over the defendant by the attempted substitution of him for "John Barton Payne, Agent, United States Railway Administration, C., R. I. & P. Ry. Co.," the original defendant, without procuring service of summons on him. This motion was overruled by order of the court and the defendant brings error.

¶2 The contention of the defendant is that the judgment of the trial court is void for the reason that the same was rendered without procuring service on the defendant as required by law.It is the contention of the plaintiffs that it was unnecessary to procure service on said defendant for the reason that this is an action against United States Government, and that service of summons was had on the proper service agent of the C., R. I. & P. Ry. Co. and there was a mere mistake made in designating John Barton Payne as Agent under the Transportation Act of 1920 instead of James C. Davis as such agent and that, under section 318, Comp. Stat. 1921, the court was authorized to make a correction in the name of the defendant by substituting James C. Davis, Agent.

¶3 An action against the Federal Agent of Railroads for damages, occasioned by the operation of railroads under federal control, is an action against the United States, Whalen Paper & Pulp. Mills v. Davis, 288 F. 438. The main question to be determined here is. Was the United States Government sued when this action was commenced on April 6, 1921? If this question should be answered in the affirmative, then the United States Government has been a party defendant all the time and the substituting of James C. Davis, Agent, for John Barton Payne, Agent, under Transportation Act of 1920, was authorized as it merely corrected the description or name of the real defendant. To answer this question, it is necessary to review the history of the federal control of railroads, which included the road of the Chicago, Rock Island & Pacific Company.

¶4 The railroads were placed under federal control by act of Congress approved August 29, 1916 (39 Stat. 619), and this control continued to March 1, 1920. The act of Congress of March 21, 1918, provided that federal control might be exercised through such agencies as the President selected, and, under this authority, the President appointed William G. McAdoo Director General of Railroads. Thereafter, and on October 28, 1918, General Order No. 50, directing that actions should be brought against "William G. McAdoo, Director General of Railroads and not otherwise," was promulgated. On January 10, 1919, William G. McAdoo resigned and Walker D. Hines was appointed to succeed him and, under his administration, General Order No. 50 A was issued, providing that actions should be maintained against the "Director General of Railroads. " Under act of Congress of February 28, 1920 (41 Stat. 456), known as the Transportation Act, the federal control of railroads ceased on March 1, 1920. Section 206 of said act provides that an action of this nature, which arose under...