Fahey v. Davis

• Decision Date: 01 October 1923
• Docket Number: No. 53.,53.
• Citation: 195 N.W. 46,224 Mich. 371
• Parties: FAHEY v. DAVIS, Director General of Railroads.
• Court: Michigan Supreme Court

224 Mich. 371

195 N.W. 46

FAHEY

v.DAVIS, Director General of Railroads.

No. 53.

Supreme Court of Michigan.

Oct. 1, 1923.

Certiorari to Circuit Court, Wayne County; Adolph Marschner, Judge.

Action by Michael Fahey, administrator of the estate of John F. Fahey, deceased, against James C. Davis, Director General of Railroads, as Agent, under Transportation Act 1920, § 206. An order of substitution was made, and the substituted defendant brings certiorari. Order of substitution set aside.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Harrison Geer, of Detroit (Leo J. Carrigan, of Detroit, of counsel), for petitioner.

Harry C. Milligan, of Detroit, for opposed.

WIEST, C. J.

This is certiorari to review an order of the Wayne circuit court, made February 14, 1922, substituting James C. Davis, Director General of Railroads, as Agent of the President, under section 206 of the Transportation Act of 1920 (41 Stat. 456), in place and stead of the Detroit, Grand Haven & Milwaukee Railway Company, as defendant in an action for damages. Suit was commenced against the railway company December 1, 1921, by filing declaration, with service thereof upon the paymaster of the company. The declaration alleges that John F. Fahey, while in the employ of the railway company as a brakeman on an interstate train, met his death, December 6, 1919, through the failure of the company to comply with the federal Safety Appliance Law. Plaintiff's right of action, if any, accrued under the Federal Employers' Liability Act of 1908 (35 U. S. Statutes at Large, 65 [U. S. Comp. St. § 8662]), which provides:

‘That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.’

The period within which suit may be brought under the federal Employers' Liability Act cannot be extended by any court, federal or state, under the name of procedure. Atlantic Coast Line R. Co. v. Burnette, 239 U. S. 199, 36 Sup. Ct. 75, 60 L. Ed. 226;Kannellos v. Great Northern Ry. Co., 151 Minn. 157, 186 N. W. 389. The suit was brought within two years from the date the cause of action accrued, but was not brought against the party liable to respond in damages, and not until after the expiration of the two-year period was the order of substitution made.

[2] At the time of the accident, the transportation systems of the country were operated by the federal government. The railway company was never liable to respond to plaintiff for the cause of action alleged. Peacock v. D., G. H. & M. Ry. Co., 208 Mich. 403, 175 N. W. 580, 8 A. L. R. 964;Mardis v. Hines, Director General (C. C. A.) 267 Fed. 171. The Federal Control Act of March 21, 1918 (40 U. S. Statutes at Large, 451 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115 3/4j]), provides:

‘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 retransferred 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.’

On October 25, 1918, the Director General of Railroads, by General Order No. 50, required, among other things, that all actions for death or personal injuries, after December 31, 1917, arising out of government control, be brought against the Director General, by name. This order was valid. Missouri Pacific R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087.

The government, in taking possession and control of the railroads, provided procedure to regulate the bringing of suits. This it had a right to do, for, in the absence of such permissive procedure, the sovereign power exercised, would have prevented redress to the injured. The Transportation Act of February 28, 1920, ended federal control March 1, 1920. 41 U. S. Statutes at Large, 456. The provisions of the Transportation Act of 1920, with which we are here concerned, follow:

‘Sec. 206. (a) Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 1916) of such character as prior to federal could have been brought against such carrier, may, after the termination of federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by state or federal statutes but not later than two years from the date of the passage of this act, be brought in any court which but for federal control would have had jurisdiction of the cause of action had it arisen against such carrier.

‘(b) Process may be served upon any agent or officer of the carrier operating such railroad or system of transportation, if such agent or officer is authorized by law to be served with process in proceedings brought against such carrier and if a contract has been made with such carrier by or through the President for the conduct of litigation arising out of operation during federal control. If no such contract has been made process may be served upon such...