El Paso & S. W. R. Co. v. Lovick

• Decision Date: 06 March 1919
• Docket Number: (No. 933.)
• Court: Texas Court of Appeals
• Parties: EL PASO & S. W. R. CO. v. LOVICK.

210 S.W. 283

EL PASO & S. W. R. CO. v. LOVICK.

(No. 933.)

Court of Civil Appeals of Texas. El Paso.

March 6, 1919.

Rehearing Denied March 27, 1919.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Suit by Robert L. Lovick against the El Paso & Southwestern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. M. Peticolas and Del W. Harrington, both of El Paso, for appellant.

A. L. Curtis, of Belton, Winbourn Pearce, of Temple, and Geo. E. Wallace, of El Paso, for appellee.

Statement of Case.

HIGGINS, J.

On April 9, 1918, appellee, Lovick, filed this suit in the district court of El Paso county, Tex., against appellant, to recover damages arising from personal injuries. The accident upon which the suit is based occurred at Bisbee, Ariz., on October 7, 1917. At the time of the accident, appellee was in the service of appellant as a switchman in the Bisbee yards. He based his suit upon alleged negligence of W. L. Van Winkle, a fellow switchman, in the manner of the latter boarding the switchboard of a switch engine. Appellee alleged that he was a citizen of Texas, but did not allege the county of his residence either at the time of the accident or at the date upon which the suit was filed.

Appellant filed a plea in abatement setting up the President's proclamation of December 26, 1917, by virtue of which possession had been taken and control of its system of transportation assumed by the government; also, pleading the various acts of Congress and orders of the Director General hereinafter mentioned; that the asserted cause of action arose in Cochise county, Ariz., and at the time of the accident Lovick resided in said county. It was also averred that to try the suit in El Paso county would prejudice the just interests of the government, in that it would be necessary to bring certain witnesses to El Paso county, namely, W. L. Van Winkle, W. G. Grace, switchmen, and R. M. Booker, engineer, all of whom were in appellant's service at and near Cochise county, Ariz., and engaged in hauling war materials, troops, munitions, and supplies. On October 3, 1918, the plea in abatement was overruled. The action of the court upon the plea is the first question presented for review.

Opinion.

It will be noted that the suit was filed April 9, 1918, which was the date upon which General Order 18 was issued. Under the rule announced in Lapeyre v. United States, 17 Wall. 191, 21 L. Ed. 606, the order became effective from the first moment of that day and covers all transactions of that date to which it is applicable. See, also, United States v. Norton, 97 U. S. 164, 24 L. Ed. 907; Leidigh Carriage Co. v. Stengel, 95 Fed. 637, 37 C. C. A. 210.

By the act of Congress approved August 29, 1916 (chapter 418, 39 Stat. 645 [U. S. Comp. St. 1918, § 1974a]), the President, in time of war, was empowered, through the Secretary of War, to take possession and assume control of any system of transportation and to utilize same for certain purposes therein specified.

This country being at war, the President, by proclamation dated December 26, 1917 (U. S. Comp. St. 1918, § 1974a), took possession and assumed control of each and every railroad transportation system within the boundaries of the continental United States. It directed that the possession, operation, and utilization of such systems should be exercised by and through Wm. G. McAdoo, who was thereby appointed and designated Director General of Railroads. This provision was contained in the proclamation:

"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."

The act of August 29, 1916, was supplemented by the act approved March 21, 1918 (chapter 25), the eighth, ninth, and tenth sections (U. S. Comp. St. 1918, §§ 3115¾h, 3115¾i, 3115¾j) whereof read:

"Sec. 8. The President may execute any of the powers herein and heretofore granted him with relation to federal control through such agencies as he may determine. * * *

"Sec. 9. The provisions of the act entitled `An act making appropriations for the support of the Army for the fiscal year ending June thirteenth, nineteen hundred and seventeen, and for other purposes,' approved August twenty-ninth, nineteen hundred and sixteen, shall remain in force and effect except as expressly modified and restricted by this act; and the President, in addition to the powers conferred by this act, shall have and is hereby given such other and further powers necessary or appropriate to give effect to the powers herein and heretofore conferred. The provisions of this act shall also apply to any carriers to which federal control may be hereafter extended.

"Sec. 10. 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."

By proclamation dated March 29, 1918 (U. S. Comp. St. 1918, § 3115¾h) the President authorized the Director General:

"To issue any and all orders which may in any way be found necessary and expedient in connection with the federal control of systems of transportation, railroads, and inland waterways as fully in all respect as the President is authorized to do, and generally to do and perform all and singular all acts and things and to exercise all and singular the powers and duties which in and by the said act, or any other act in relation to the subject hereof, the President is authorized to do and perform."

On April 9, 1918, the Director General issued General Order No. 18, the material portion whereof reads:

"Whereas it appears that suits against the carriers for personal injuries, freight and damage claims, are being brought in states and jurisdictions far remote from the place where the plaintiff resides or where the cause of action arose; the effect thereof being that men operating the trains engaged in hauling war material, troops, munitions, or supplies, are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more; which practice is highly prejudicial to the just interests of the government and seriously interferes with the physical operations of railroads; and the practice of suing in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs.

"It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resides, or in the county or district where the cause of action arose."

On April 18, 1918, the Director General issued General Order No. 18a, which reads:

"General Order No. 18 issued April 9th, 1918, is hereby amended to read as follows:

"It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose."

On May 23, 1918, the Director General issued General Order No. 26, the material portions of which read as follows:

"Whereas it appears that there are now pending against carriers under federal control a great many suits for personal injury, freight and damage claims, and the same are being pressed for trial by the plaintiffs in states and jurisdictions far removed from the place where the persons alleged to have been injured or damaged resided at the time of such injury or damage, or far remote from the place where the cause of action arose; the effect of such trials being that men operating the trains engaged in hauling war materials, troops, munitions or supplies, are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more; which practice interferes with the physical operation of railroads; and the practice of trying such cases during federal control in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs:

"It is therefore ordered, that upon a showing by the defendant carrier that the just interests of the government would be prejudiced by a present trial of any suit against any carrier under federal control which suit is covered by General Order No. 18 and which is now pending in any county or district other than where the cause of action arose or other than in...