Hines v. Dahn

• Decision Date: 02 August 1920
• Docket Number: 5514.
• Citation: 267 F. 105
• Parties: HINES, Director General of Railroads, v. DAHN. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 105

HINES, Director General of Railroads, v. DAHN. ^[1]

No. 5514.

United States Court of Appeals, Eighth Circuit.

August 2, 1920

F. H Helsell, of Ft. Dodge, Iowa (C. A. Helsell, of Ft. Dodge Iowa, W. S. Horton, of Chicago, Ill., and Nelson & Duffy, of Dubuque, Iowa, on the brief), for plaintiff in error.

W. A Smith, of Dubuque, Iowa (D. J. Lenehan and L. G. Hurd, both of Dubuque, Iowa, on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

CARLAND Circuit Judge.

Defendant in error, hereafter plaintiff, brought this action against Illinois Central Railroad Company and the Director General of Railroads, hereafter defendant, to recover damages for personal injuries alleged to have been caused by the negligent operation of said railroad. Plaintiff recovered a verdict against the defendant, the action having been dismissed as to the railroad company. Defendant brings error.

The first contention made by counsel for defendant is that the plaintiff cannot maintain this action, for the reason that it is in legal effect an action against the United States, and the plaintiff as an employe of the United States had prior to the commencement of the action applied for and received the benefits of an act to provide compensation for employes of the United States suffering injuries while in the performance of their duties. 39 Stat. 742 (Comp. St. Secs. 8932a-8932uu). The facts material to this contention as they appear in the record are as follows: On May 29, 1918, plaintiff was a railroad mail clerk engaged in the performance of his duties as such while riding in a mail car composing a part of train No. 11, of the Illinois Central Railroad Company, then running over the track of said company, under the management and control of defendant. On said date and while he was so engaged said train was derailed and wrecked by plunging through a bridge composing a part of the roadbed of said Illinois Central Railroad Company, near Aplington, Iowa, and by reason thereof he was seriously and permanently injured. Division V of defendant's answer contains the following allegation:

'That under the act for compensation for the employes of the United States aforesaid, this plaintiff has made application in the manner provided by said act for compensation under said act, and this defendant is informed and believes and charges that such application has been affirmatively acted upon and said employe has the benefit of all the provisions of said Compensation Act.'

This allegation of the answer was admitted by paragraph 3 of plaintiff's demurrer to said answer, the demurrer being sustained. In subdivision 2 of said paragraph 3 in addition to the formal demurrer plaintiff also stated:

'That even if it be true that plaintiff has been paid compensation under the act to provide compensation for employes of the United States, such fact does not constitute any defense to this action, said act not purporting to furnish an exclusive remedy to plaintiff, but, on the contrary, expressly providing for the maintenance of an action of this character.'

On the record as it stands, and in view of the fact that at the trial the case was treated by court and counsel as if the plaintiff had applied for and accepted the benefits of the Compensation Act above referred to, the case must be treated here in the same way. The first question therefore to be considered is: Was plaintiff's action in legal effect one against the United States?

By chapter 418, 1st Sess. 64 Cong., approved August 29, 1916, 39 Stat. 645 (Comp. St. Sec. 1974a), 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.'

Pursuant to the authority thus given, the President on December 26, 1917 (40 Stat. 1733), issued a proclamation containing the following language:

'Now, therefore, I, Woodrow Wilson, President of the United States, under and by virtue of the powers vested in me by the foregoing resolutions and statute, and by virtue of all other powers thereto me enabling, do hereby, through Newton D. Baker, Secretary of War, take possession and assume control at 12 o'clock noon on the twenty-eighth day of December, 1917, of each and every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the continental United States and consisting of railroads, and owned or controlled systems of coastwise and inland transportation, engaged in general transportation, whether operated by steam or by electric power, including also terminals, terminal companies and terminal associations, sleeping and parlor cars, private cars and private car lines, elevators, warehouses, telegraph and telephone lines and all other equipment and appurtenances commonly used upon or operated as a part of such rail or combined rail and water systems of transportation, to the end that such systems of transportation be utilized for the transfer and transportation of troops, war material and equipment, to the exclusion so far as may be necessary of all other traffic thereon, and that so far as such exclusive use be not necessary or desirable, such systems of transportation be operated and utilized in the performance of such other services as the national interest may require and of the usual and ordinary business and duties of common carriers.

'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. * * *

'Except with the prior written assent of said Director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said Director may, by general or special orders, otherwise determine.' On March 21, 1918, Congress passed an act generally known as the Federal Control Act, being chapter 25, 2d Sess. 65th Cong. 40 Stat. 451 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 3/4a-3115 3/4p). Among other provisions of said act are the following:

Section 1 (section 3115 3/4a): 'That the President, having in time of war taken over the possession, use, control, and operation * * * of certain railroads and systems of transportation (called herein carriers). ' 'That any railway operating income accruing during the period of federal control in excess of such just compensation shall remain the property of the United States.'

Section 6 (section 3115 3/4f): 'That the sum of $500,000,000 is hereby appropriated, out of any moneys in the treasury not otherwise appropriated, which, together with any funds available from any operating income of said carriers, may be used by the President as a revolving fund for the purpose of paying the expenses of the federal control.'

Section 10 (section 3115 3/4j): '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.'

Section 12 (section 3115 3/4l): 'That moneys and other property derived from the operation of the carriers during federal control are hereby declared to be the property of the United States. Unless otherwise directed by the President, such moneys shall not be covered into the treasury, but such moneys and property shall remain in the custody of the same officers, and the accounting thereof shall be in the same manner and form as before federal control.'

Act Feb. 28, 1920, Sec. 206g, 262 F. 340, reads as follows:

'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.'

The first provision quoted above from the Federal Control Act recites that the President, having in time of war taken over the possession, use control and operation of certain railroads and systems of...