Lehigh Valley Cold Storage Co. v. Davis

• Decision Date: 26 February 1926
• Docket Number: 189-1925
• Citation: 87 Pa.Super. 166
• Parties: The Lehigh Valley Cold Storage Company v. James C. Davis, Director General of Railroads, as Agent, Appellant
• Court: Pennsylvania Superior Court

87 Pa.Super. 166

The Lehigh Valley Cold Storage Company v. James C. Davis, Director General of Railroads, as Agent, Appellant

No. 189-1925

Superior Court of Pennsylvania

February 26, 1926

Argued December 7, 1925

Appeal by defendant, from judgment of C.P. Northampton County-1925 No. 80, in the case of The Lehigh Valley Cold Storage Company vs. James C. Davis, Director General of Railroads, as agent.

Trespass to recover damages for loss occasioned by delay in transportation. Before Stewart, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 1,345.21, and judgment thereon. Defendant appealed.

Error assigned, was refusal of defendant's motion for judgment non obstante veredicto.

Reversed.

E. J Fox, of E. J. & J. W. Fox, for appellant, cited: Northern Pacific R. R. Co. v. the State of North Dakota, 250 U.S 135; Arkansas Cent. R. Co. v. McCuen, 149 Ark. 669, 234 S.W. 617; Davis v. Crisp, 252 S.W. 606 (Ark.); Fisher v. Wabash Rwy. Co., 235 N.Y. 568; Griffith v. Davis, 229 P. 499 (Okla. Case).

John D. Hoffman, for appellee, cited: Hanlon v. Davis, 276 Pa. 113; Molinaro v. Davis, 80 Superior 597; Northern Pacific v. North Dakota, 250 U.S. 135; Globe Fire Ins. v. Hines, Agent, 273 F. 774; Florida Etc. v. Davis etc. (71 Pitts. L. J. 577).

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

LINN, J.

This appeal is from judgment for damages caused by delay in freight transportation by the United States Railroad Administration. The shipment moved over the Philadelphia and Reading and the Jersey Central railroads in 1920. Suit was brought January 17, 1922, against the Philadelphia and Reading Railroad Company. That company filed an affidavit of defense denying that it was in the railroad business at the time and averring that plaintiff's transaction was with the federal railroad administration. On October 27, 1924, plaintiff went to trial against the railroad company, and the court below directed a verdict for it, the amount of the damage not being denied. Defendant moved for judgment n. o. v., pursuant to the act of 1905. After that motion was made, plaintiff moved to amend by substituting the federal agent as defendant and for process to bring him in. In response to that motion the agent appeared and denied the power of the court to make him a party on the ground that the statutory period in which suit could be maintained against him had expired. The court below nevertheless granted the motion, substituted the federal agent and entered judgment against him for the amount of plaintiff's verdict originally directed against the company.

Federal control ceased March 1, 1920, pursuant to the Transportation Act of 1920. Sec. 206 prescribed how such suits might thereafter be brought: " Actions at law....based on causes....arising out of the....operation by the President of the railroad....of any carrier....of such character as prior to Federal control could have been brought against such carrier, may after the termination of Federal control, be brought against an agent designated by the President....Such actions....may, within the periods of limitation now prescribed by the State or Federal statutes, but not later than two years from the date of the passage of this Act, be brought into any court, which but for Federal control would have had jurisdiction of the cause had it arisen against such carrier...." (42 Stat. 392, Barnes F. Code Supp. 1923, sec. 10169 g). It will be observed that the attempt to bring in the federal agent occurred " later than two years from the date of the" Transportation Act.

The order of the court cannot be sustained for reasons stated in Davis v. Cohen Company, 268 U.S. 638, 69 L.Ed 1129, 45 S.Ct. 633 (decided since the order appealed from was made). The following quotation from the opinion in that case is pertinent here: " The Railroad Company was not liable for the cause of action that had arisen during Federal Control; the sole liability being that of the Director General as the representative of the Government. Missouri Pacific Railroad v. Ault, 256 U.S. 554, 557, 65 L.Ed. 1087, 41 S.Ct. 593. The original suit against the Railroad Company was not a suit against the Director General, and the service of the...