Dye Produce Co. v. Davis

• Citation: 202 Iowa 1008,209 N.W. 744
• Decision Date: 21 June 1926
• Docket Number: No. 35406.,35406.
• Parties: DYE PRODUCE CO. v. DAVIS, DIRECTOR GENERAL OF RAILROADS.
• Court: Iowa Supreme Court

202 Iowa 1008

209 N.W. 744

DYE PRODUCE CO.

v.DAVIS, DIRECTOR GENERAL OF RAILROADS.

No. 35406.

Supreme Court of Iowa.

June 21, 1926.

Appeal from Municipal Court of Des Moines; O. S. Franklin, Judge.

Action to recover from the Director General of Railroads under federal control for damage to a shipment of vegetables. There was a verdict for the defendant, and, from a judgment thereon, the plaintiff appeals. Reversed and remanded.

Superseding former opinion in 204 N. W. 228.

Faville and Albert, JJ., dissenting in part.

A. D. Pugh, of Des Moines, for appellant.

Carr, Cox, Evans & Riley, of Des Moines, for appellee.

VERMILION, J.

The case is before us after further argument on resubmission, following the granting of a rehearing which was petitioned for, upon different grounds, by both parties.

The action grows out of the alleged damage by freezing to a carload of fresh vegetables shipped from Los Angeles to Des Moines in December, 1919. This was during the period of federal control of the railroads. The petition was entitled merely as against the Director General of Railroads by name and title. It was alleged in the petition that the defendant, the Director General, was at the time of the shipment operating connecting lines of railway from Los Angeles to Des Moines, consisting of the Atchison, Topeka & Santa Fé Railway Company's lines and the Chicago Great Western Railroad Company's lines, over which the shipment was transported on a through bill of lading. It was further alleged that, when the shipment was received by the defendant at Los Angeles, it was not frozen or damaged by freezing, and when delivered in Des Moines was so damaged, and that this was occasioned by the negligence of the defendant. The original notice was served on an agent of the Chicago Great Western Railroad Company in Des Moines. The answer was a general denial.

The shipment originated on the line of the Atchison Company at Los Angeles, and was transported over that line to Kansas City, where it was transferred to the line of the Great Western Company, and carried over the lines of the latter company to its destination at Des Moines. The case was submitted to the jury only upon the question of liability of the Director General operating the lines of the Great Western.

[1][2] I. It appears the court below was of the opinion, and so announced, that there was no competent evidence to show that when the goods were delivered to the carrier at Los Angeles they were in good condition and unfrozen, but nevertheless submitted to the jury the question whether the shipment was damaged after it came upon the lines of the Great Western. It is plain that the effect of this ruling and action of the court was merely to deny a recovery against the Director General as the representative of the Atchison Company.

Whatever may have been the reason of the lower court for holding that there was no liability shown on the part of the Director General as the representative of the Atchison Company, its action in refusing to submit the question of such liability to the jury was unquestionably right. In Davis v. Donovan, 265 U. S. 257, 44 S. Ct. 513, 68 L. Ed. 1008, the Supreme Court of the United States settled the question involved, upon which there had been some difference of opinion among the courts. There the Circuit Court of Appeals (294 F. 525) had said:

“The sole point is that the outside litigant, such as this libelant, need look only to the Director General as the party to respond for damage caused by negligence on the part of any of the railroads which he was operating, pursuant to the federal control statutes.”

Speaking to this point, the Supreme Court said:

“We cannot accept the conclusion reached by the court below. During the year 1919 the United States were in possession and complete control, by the Director General, of the important railroad systems throughout the country. Northern P. R. Co. v. North Dakota, 250 U. S. 135, 39 S. Ct. 502, 63 L. Ed. 897, P. U. R. 1919D, 705, 18 N. C. C. A. 878. As the representative of the United States, he was subject to be sued for the purposes, to the extent, and under the conditions prescribed by statute and orders issued thereunder--and not otherwise. E. I. Du Pont De Nemours & Co. v. Davis, 264 U. S. 456, 44 S. Ct. 364 .”

After setting out the substance of the pertinent portion of the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115 3/4a-3115 3/4p) and of General Order 50-A of the Director General, the court continued:

“The effect of paragraph 10 and General Order 50-A was discussed in Missouri P. R. Co. v. Ault, 256 U. S. 554, 560, 41 S. Ct. 593, 65 L. Ed. 1087, 1091, and it was there pointed out that, while the transportation systems were controlled and administered by the United States, they were treated as separate entities, ‘regarded much as ships are regarded in admiralty,’ and ‘dealt with as active, responsible parties, answerable for their own wrongs.’ As well pointed out in Manbar Coal Co. v. Davis, Circuit Court of Appeals, Fourth Circuit, March 10, 1924 , no one was given the right to sue the Director General as operator of all railroads, but his liability was carefully limited to such as would have been incurred by some particular carrier if there had been no federal control.”

See, also, Granquist v. Duluth, M. & N. Ry. Co., 155 Minn. 217, 193 N. W. 126, and Farr v. St. Louis S. W. Ry. Co., 154 Ark. 585, 243 S. W. 800.

We are of the opinion the Director General was brought into court and was in court only as the representative of the government in control and management of the railway company upon whose agent notice was served, the Great Western, and that this is true, notwithstanding the allegations of the petition that he was in control of both railways and the case was entitled against him by name and title only and that he answered as the “defendant.” Service, before federal control upon an agent of the Great Western Company, would not have brought the Atchison Company into court. Under General Order 50-A service of process might be made upon officials operating a railroad for the Director General as formerly permitted in actions against the road. As said in the cited case, the Director General, as the representative of the government, can be sued to the extent and under the conditions prescribed by statute and orders issued thereunder and not otherwise.

[3] The appellant is understood to insist, however, that there was service on the Atchison Company, that therefore the Director General in his capacity as a representative of the government in control of the Atchison was in court. This contention is bottomed upon the proposition that the delivering carrier is the agent of the initial carrier in respect to a through shipment, and that the shipment in question was so connected with this agency that service upon the delivering carrier would be service upon the initial carrier under section 3529, Code Supplement of 1907 (section 11072, Code of 1924). The argument is that federal statutes make the initial carrier in a through interstate shipment liable for any loss or damage caused by any carrier over whose lines it may pass (Compiled Statutes, § 8604a) and that decisions of the United States Supreme Court (notably Missouri, K. & T. R. Co. v. Ward, 244 U. S. 383, 37 S. Ct. 617, 61 L. Ed. 1213) hold that the connecting lines are in effect mere agents, whose duty it is to forward the goods under the contract made with their principal the initial carrier. The precise question has been decided against the contention of appellant in St. Louis S. W. Ry. Co. v. Alexander, 227 U. S. 218, 33 S. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77, and in Basham's Adm'r v. Missouri Pacific Ry. Co., 201 Ky. 807, 258 S. W. 690. See, also, Jones v. Illinois Central R. Co., 188 Iowa, 850, 175 N. W. 316.

[4] In this view of the case, there was no error in refusing to submit to the jury the question of the liability of the Director General as the representative of the Atchison Company for damage to the shipment. In that respect a correct result was reached, and the ground upon which the lower court based its conclusion, inasmuch as the case against him as the representative of the Great Western Company was submitted to the jury, is immaterial. The plaintiff, in any event, secured all it could rightly claim at this point, that is, the submission to the jury of its claim against the Director General as the representative of the Great Western, and it cannot be heard to complain of the mere ground of the ruling.

[5] II. After a verdict for the defendant on the case as submitted to the jury and judgment thereon, the plaintiff, without filing a new petition, caused notice to be served on an alleged agent of the Atchison Company as agent of the Director General. The latter made a special appearance in response to this notice, and moved to dismiss because no petition was on file. This motion was sustained. The ruling was proper. We know of no statute or recognized procedure, and none is pointed out, that would permit the reopening of a case that has been tried and gone to judgment by the service of an original notice upon a new party and the trying of a new case on the pleadings on file in the case that had been disposed of. There was no petition on file. Section 3515, Code of 1897 (section 11057, Code of 1924).

This belated attempt to bring the Director General, as the representative of the Atchison Company, into the case is quite inconsistent with appellant's contention that he was always in the case in that capacity, and that the court erred in not submitting to the jury the question of his liability as the representative of that company. If the Director General, as the initial carrier, was in court, there was an adjudication that he was not liable in that capacity, and, if the adjudication was erroneous, the error could only be corrected on appeal. It could only be upon the...