Mardis v. Hines

• Decision Date: 23 August 1920
• Docket Number: 5484.
• Citation: 267 F. 171
• Parties: MARDIS v. HINES, Director General of Railroads, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 171

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

No. 5484.

United States Court of Appeals, Eighth Circuit.

August 23, 1920

Jeptha H. Evans and Charles I. Evans, both of Booneville, Ark., and Heartsill Ragon, of Clarksville, Ark., for plaintiff in error.

Edward J. White, of St. Louis, Mo., and Thomas B. Pryor, of Ft Smith, Ark., for defendant in error Missouri Pac. R. Co.

Before HOOK and CARLAND, Circuit Judges, and VAN VALKENBURGH District judge.

HOOK Circuit Judge.

Mardis a passenger on the Missouri Pacific Railroad, was injured January 26, 1918, while it was in the possession of and being operated by the Director General of Railroads under the authority of the United States. He sued both the Director General and the railroad company. On a demurrer to the petition by the latter, the trial court held there was no cause of action against it. The question here is whether the ruling was correct.

The Act of Congress of August 29, 1916 (Comp. St. Sec. 1974a), authorized the President in time of war to take possession and assume control of systems of transportation. War with Germany having occurred, the President issued his proclamation, dated December 26, 1917, taking over the transportation systems, including the Missouri Pacific Railroad, and placing them under the control of the Director General. The proclamation provided that, until the Director General otherwise directed, his duties should be performed through the officers and employes of the systems of transportation, who should continue operation in the usual way of common carriers in the names of their respective companies; also that until otherwise directed by the Director General the systems of transportation should remain subject to all existing statutes and orders of commissions, but that any order, general or special, thereafter made by the Director General, should have paramount authority and be obeyed as such.

As above noted the accident to Mardis occurred January 26, 1918. Afterwards Congress passed the Act of March 21, 1918, section 10 of which provides:

'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. ' Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3115 3/4j.

On October 28, 1918, the Director General issued his General Order No. 50, which provided, among other things, that actions for death or personal injury arising after December 31, 1917, and growing out of the possession, use, control, or operation of any railroad by the Director General, which but for federal control might have been brought against the carrier company, should be brought against him, the Director General, and not otherwise. Finally this action was brought by Mardis January 21, 1919.

Although the officers and employes of the railroad company were being utilized by the Director General at the time of the collision, they were, in respect of everything that pertained to its causes and responsibilities, in his service, not in the service of the company. The negligence was...