Hines v. Collins

• Decision Date: 01 December 1920
• Docket Number: (No. 1709.)
• Citation: 227 S.W. 332
• Parties: HINES, Director General of Railroads, et al. v. COLLINS.
• Court: Texas Court of Appeals

227 S.W. 332

HINES, Director General of Railroads, et al. v. COLLINS.

(No. 1709.)

Court of Civil Appeals of Texas. Amarillo.

December 1, 1920.

Rehearing Denied January 26, 1921.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Action by W. M. Collins against Walker D. Hines, Director General of Railroads, and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellants.

Kinder, Russell & Griffin, of Plainview, and Barrett, Childers & Deatherage, of Amarillo, for appellee.

BOYCE, J.

W. M. Collins, appellee, brought this suit against the Panhandle & Santa Fé Railroad Company, to recover damages for personal injuries sustained by him. It was alleged and proven that the plaintiff was injured by the derailment of a motorcar, on which he and other laborers were riding while in the discharge of their duties, as section hands, working on defendant's road. It was alleged that the tools for use by the men in such work were carried in the bed of said motorcar; that no end gate, which might prevent the tools from falling out of the car, was furnished; that on account of this fact, some of the tools fell out in front of the car and derailed it. The negligence charged was the failure of the defendant to furnish end gates for the car, and the operation thereof at a dangerous rate of speed. The injury occurred in November, 1918, while the road was being operated by the United States government. The railroad company appeared and pleaded in abatement that under the provisions of Orders 50 and 50a of the Director General of Railroads, the suit could be brought only against the said Director General, and that said Director General should be made defendant and the railway company dismissed. The court refused to dismiss the suit as to the railway company, but required that the Director General of Railroads be made a party defendant, and the case was continued for the term, with the agreement that the attorneys representing the railroad company would appear for the said Director General at the succeeding term of the court. Said succeeding term of the court began on March 1, 1920. By the terms of the act of February 28, 1920 (41 Stat. 456), federal control of the railroads ended at 12:01 a. m. of that date, and on March 15, 1920, on call of the case for trial, the defendants filed another plea, in which they contended that under the provisions of subdivisions (a) and (d) of section 206 of said act (41 Stat. 461) the suit could only proceed against the agent who might be appointed by the President to conduct litigation arising out of the operation of the railroads by the government, and that said agent should be substituted as the sole defendant in said suit. This plea was overruled, and the case proceeded to trial, resulting in a joint judgment against Walker D. Hines, Director General of Railroads, and the Railroad Company. Such further statement of the pleading and facts will be made as is necessary in the consideration of the assignments as we shall discuss them.

The assignments present two questions as to the effect which the fact of federal control of the railroads and the termination thereof, as applied to the facts of the case, may have on the rights of the parties. These are: First, whether there was any cause of action against the railroad company in its corporate capacity; second, whether upon termination of federal control it was necessary to substitute the agent provided for by the act to conduct such litigation and whether service of process upon him or his authorized agents was necessary to effect a substitution. The President, in time of war, took charge of the railroads of this country, under authority of the act of August 29, 1916, par. 1974a, U. S. Compiled Statutes, which in the most general terms empowered the President to take possession and assume control of any system or systems of railroads in such emergency. Congress, by act of March 21, 1918 (U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115¾a-3115¾p) defined more fully the rights and liabilities of all parties growing out of the situation created by the exercise of this power by the President. By the terms of section 10 of this act (section 3115¾j, U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919) it was provided: That such carriers while under federal control should be subject to all laws and liabilities as common carriers, etc., except in so far as such liability might be inconsistent with the provisions of said act or any other act applicable to such federal control, or with any order of the President; that suits might be brought by and against such carriers, and judgment rendered in the same manner as before federal control, and that no defense should be made to such suits upon the ground that the carrier was an agent of the federal government. It was expressly provided, however, that "no process, mesne or final, shall be levied against any property under such federal control." In October, 1918, the Director General issued what is known as General Order No. 50, later amended by General Order No. 50a, which provided that suits based on causes of action growing out of control or operation by the Director General should be brought against the Director General, and not otherwise. The validity of this order has been upheld by some courts, while others have held it to be in conflict with the provisions of the act of Congress, just referred to. We do not think it important to determine in this particular instance whether the suit should, prior to the termination of federal control, have proceeded in the name of the carrier, or the Director General, as defendant. In either case, the suit was in effect against the government, and there was no personal liability against the carrier. In our opinion, Congress did not intend by the language used in section 3115¾j, U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, above referred to, to impose personal liability on the carrier for causes of action growing out of the acts of the government in its operation of the roads. Some courts have expressed the opinion that if such were the intention of the act it would, in this respect, be unconstitutional. The government, in its operation of the railroads, retained the names of the respective carriers owning them before the government control, and operated them in such names. The provisions for liability and suit to enforce the same were merely intended to create the same liability against the government in its operation of the railroads as would have existed were the roads being operated by the carrier, and to permit suit to be brought in effect against the government in the name of the carriers in which it was carrying on the business. As we have seen, it was expressly provided that no process should be levied against the property under federal control. The act provided that the receipts of the operation of the roads would be the property of the United States, but should not be covered into the Treasury, and that disbursements thereof should be made in the same manner as before federal control. Section 3115¾l U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919. It was evidently the intent of Congress that claims growing out of the operations of the railroads by the government should be paid out of these receipts, and the revolving fund created by section 6 of the act. Section 3115¾f, U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919. In the act of February 28, 1920, par. (g), par. 206, it was expressly provided that—

"No execution or process, other than on a judgment recovered by the United States against a carrier, shall be levied upon the property of any carrier where the cause of action on account of which the judgment was obtained grew out of the possession, use, control, or operation of any railroad or system of transportation by the President under federal control."

While, of course, if there had been a liability against the carrier created by the act of March 21, 1918, Congress would have had no power to thus destroy such liability, yet it is the duty of the courts to so construe the legislation if that is possible, as to uphold its validity. We think it appears from the whole scheme of legislation on the subject that there was no intention to impose on the carrier any liability for the acts of the government while operating the property. This conclusion is supported by numerous authorities. H. & T. C. Ry. Co. v. Long, 219 S. W. 215; G., H. & S. A. Ry. Co. v. Wurzbach, 219 S. W. 252; Baker v. Bell, 219 S. W. 247; T. & N. O. Ry. Co. v. Clevenger, 223 S. W. 1036; H. E. & W. T. Ry. Co. v. Wilkerson, 224 S. W. 574; Hines v. Dahn (C. C. A.) 267 Fed. 105; Mardis v. Hines (C. C. A.) 267 Fed. 171; Cravens v. Hines (Mo. App.) 218 S. W. 912; Groves v. Grand Trunk Western Ry., 210 Mich. 409, 178 N. W. 232; Schumacher v. Pennsylvania R. Co., 106 Misc. Rep. 564, 175 N. Y. Supp. 84. Numerous other authorities to the same effect are referred to in the authorities cited, as well as authorities holding to the contrary, such as Missouri Pacific Ry. Co. v. Ault, 140 Ark. 572, 216 S. W. 3, and others. The judgment, in our opinion, in so far as it acted on the defendant carrier, in any individual capacity, and authorized the issuance of any process against its property, is wrong. But as the Director General was in court and the litigation, up to the termination of federal control, was being conducted by the proper representatives of the government, it was not important whether the nominal defendant should be the carrier or the Director General, and unless the question is to be affected by the termination of federal control the judgment of the district court could be here modified, if there were no error requiring its reversal, so as to make it clear that it is enforceable only out of the fund provided by Congress for the payment of such...