McGregor v. Great N. Ry. Co.

• Decision Date: 30 April 1919
• Parties: McGREGOR v. GREAT NORTHERN RY. CO.
• Court: North Dakota Supreme Court

42 N.D. 269

172 N.W. 841

McGREGOR

v.GREAT NORTHERN RY. CO.

Supreme Court of North Dakota.

April 30, 1919.

Syllabus by the Court.

In an action by an administrator, brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages occasioned by the death of the plaintiff's intestate through alleged negligence of the defendant railway company, where the cause of action arose and the action was begun subsequent to the assumption of federal control and before the passage of the Rail Control Act of March 21, 1918 (U. S. Comp. St. §§ 3115 3/4a3115 3/4p), it is held:

Under the Act Cong. Aug. 29, 1916, § 1 (U. S. Comp. St. § 1974a), authorizing the assumption, in time of war, of control by the President of systems of transportation, and under the proclamation of the President issued in pursuance thereof, prima facie a cause of action for the alleged negligence arose and became vested in the plaintiff prior to the passage of the Rail Control Act.

General Order No. 50, promulgated by the Director General of Railroads, which requires that suits upon causes of action arising subsequent to December 31, 1917, shall be brought against the Director General of Railroads and not otherwise, and which authorizes the substitution of the Director General for the carrier company as party defendant and the dismissal of the action as to the company, is not warranted by the Rail Control Act of March 21, 1918, in so far as it purports to be applicable to causes of action already vested.

Section 10 of the Rail Control Act (U. S. Comp. St. 1918, § 3115 3/4j) is construed and held to authorize the bringing of actions against the carrier corporations during the period of federal control.

Under the Rail Control Act, the Director General is charged with administering the transportation systems owned by the various carrier corporations, but he is not authorized to appear and defend suits brought against them.

The carrier corporations, during the period of federal control, remain legal entities capable of suing and being sued in the courts, and are champions of their own legal rights.

The liability or nonliability of a carrier corporation for acts of alleged negligence occurring during the period of federal control is not an administrative question to be decided by the Director General, but is a judicial question to be determined by the courts.

The question as to whether or not a carrier corporation may be liable for the negligence of an employé during the period of federal control is not decided.

Additional Syllabus by Editorial Staff.

The word “carriers” as used in Act March 21, 1918, § 10 (U. S. Comp. St. 1918, § 3115 3/4j), providing that actions may be brought against carriers under federal control, means the corporations, and not the Director General.

Appeal from District Court, Ward County; Leighton, Judge.

Action by John A. McGregor, as administrator of estate of Christ Hanson, deceased, against the Great Northern Railway Company. From an order made on defendant's motion, substituting Wm. G. McAdoo, Director General of Railroads of the United States, as defendant in the place of the Great Northern Railway Company and dismissing the action as to it, plaintiff appeals. Order reversed.

Bronson and Grace, JJ., dissenting.

E. R. Sinkler and M. O. Eide, both of Minot, for appellant.

Murphy & Toner, of Grand Forks, and Bradford & Nash, of Minot, for respondent.

BIRDZELL, J.

[1] This action is brought by an administrator to recover damages occasioned by the alleged negligence of the defendant in causing the death of one Christ Hanson, an employé. The federal Employers' Liability Act (chapter 149, 35 Stat. at Large, 65 [U. S. Comp. St. §§ 8657-8665]) and amendments are relied upon. The injury resulting in the death of the plaintiff's intestate is alleged to have been inflicted on January 22, 1918. In December, 1918, the district court of Ward county, upon motion of the defendant's attorneys, entered an order substituting Wm. G. McAdoo, Director General of Railroads of the United States, as defendant in the place and stead of the Great Northern Railway Company, and dismissed the action as to the latter. This appeal is from the order of substitution and dismissal.

Accompanying the notice of motion was an affidavit by one of the defendant's attorneys, stating, in substance, that the railway company was under federal control, and was in every way subject to the jurisdiction, management, and possession of the government of the United States, acting through the Director General of Railroads, which control commenced on the 1st day of January, 1918, prior to the accrual of the alleged cause of action; and that on or about November 1, 1918, Wm. G. McAdoo, as Director General of Railroads, promulgated General Order No. 50, ordering that all actions subsequently brought based upon certain claims, including claims for death, should “be brought against Wm. G. McAdoo, Director General of Railroads, and not otherwise”; and further that, as to actions pending upon causes arising subsequent to December 31, 1917, based upon the operation of any railroad, the pleadings “may on application be amended by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom.” The order of substitution purports to have been made in conformity with the requirements of General Order No. 50, and the only question presented upon this appeal is the legal sufficiency of the order to support the action of the district court.

The President assumed control of the railroads, acting under the authority of Act Cong. Aug. 29, 1916, c. 418, § 1, 39 Stat. 645 (U. S. Comp. St. § 1974a) as follows:

“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.”

The cause of action in question arose after the government had assumed control, and the summons was served on the railway company on March 2, 1918. On March 21, 1918, the so-called “Rail Control Act” was approved (chapter 25, 40 Stat. 451 [U. S. Comp. St. 1918, §§ 3115 3/4a-3115 3/4j]), and the authority for the order relied upon to support the substitution is contained in section 10 thereof. That portion of section 10 (section 3115 3/4j) which is germane to the present inquiry is:

“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 transferred 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.”

The preamble to General Order No. 50, after referring to the portion of the statute above quoted, recites:

“Whereas, since the Director General assumed control of said systems of transportation, suits are being brought and judgments and decrees rendered against carrier corporations on matters based on causes of action arising during federal control for which the said carrier corporations are not responsible, and it is right and proper that the actions, suits and proceedings hereinafter referred to, based on causes of action arising during or out of federal control should be brought directly against said Director General of Railroads and not against said corporations:

It is therefore ordered,” etc. (as hereinabove indicated).

Other provisions of the Federal Control Act make the operating revenues of the carriers the property of the government, and authorize contracts to be entered into between the government and the companies, covering the details of compensation as well as matters relating to additions, extensions, betterments, equipment, etc. The measure of control assumed under the original act of 1916 and recognized by the later act of March 21, 1918, is so complete as to suggest that claims for damages might be more properly litigated as claims against the railroad administration than against the carrier corporations. Whether or not Congress has authorized this procedure, however, must be determined by the various statutory expressions concerning federal control. If we felt at liberty to go beyond the acts of Congress and to determine the rights of individuals and the public arising out of their relations with the carriers, it might be possible to justify such an order as the one in question as being an exercise of a war power inherent in the executive as commander in chief of the armies. But Congress has spoken upon this subject, and we are not inclined to go beyond the legislative authority to seek justification for the order in question. It is peculiarly appropriate here to confine our investigation to the acts of Congress, not only for the reason that Co...