Pullen v. Morgenthau

• Decision Date: 05 November 1934
• Docket Number: No. 23.,23.
• Citation: 73 F.2d 281
• Parties: PULLEN v. MORGENTHAU, Director General of Railroads.
• Court: U.S. Court of Appeals — Second Circuit

73 F.2d 281 (1934)

PULLEN v. MORGENTHAU, Director General of Railroads.

No. 23.

Circuit Court of Appeals, Second Circuit.

November 5, 1934.

Burlingham, Veeder, Clark & Hupper, of New York City (Chauncey I. Clark and Eugene Underwood, both of New York City, of counsel), for appellant.

Alexander, Ash & Jones, of New York City (Edward Ash and Max Taylor, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

On May 12, 1921, New Jersey Shipbuilding & Dredging Company filed its libel against the Director General of Railroads to recover for damage to its drill scow caused by a car float in tow of a Pennsylvania Railroad tug. The collision occurred in the East River on December 14, 1919, which was during the period when the Pennsylvania Railroad was being operated by the Director General of Railroads pursuant to the Federal Control Act (40 Stat. 451). After trial, an interlocutory decree was entered holding the respondent solely at fault. On the reference to ascertain damages, it appeared that the claim of the original libelant had been assigned to Stella Pullen, and a motion was granted to require the libel to be amended and the suit to be prosecuted in the name of the real party in interest. Pursuant to this order, Stella Pullen filed her libel as assignee on March 19, 1932. Thereafter the respondent moved to dismiss on the ground that section 3477 of the Revised Statutes (31 USCA § 203) forbids suit by an assignee of a claim against the United States, and on the further ground that the suit was not brought within the one-year period of limitation prescribed by section 5 of the Suits in Admiralty Act for causes of action which arose prior to its passage on March 9, 1920, 41 Stat. 526 (46 USCA § 745). This motion being denied, the suit proceeded to the final decree, from which this appeal is taken.

In support of his contention that the suit cannot be maintained by an assignee, the appellant argues that this is a suit against the United States, and that R. S. § 3477 (31 USCA § 203), declares void the assignment of any claim against the United States before the issuance of a warrant for the payment thereof. While there are numerous decisions of the Supreme Court from which it may be inferred that a suit by or against the Director General of Railroads is a suit by or against the United States (see Dahn v. Davis, 258 U. S. 421, 42 S. Ct. 320, 66 L. Ed. 696; Dupont de Nemours & Co. v. Davis, 264 U. S. 456, 44 S. Ct. 364, 68 L. Ed. 788; Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 41 S. Ct. 593, 65 L. Ed. 1087; Standard Oil Co. v. Southern Pacific Co., 268 U. S. 146, 45 S. Ct. 465, 69 L. Ed. 890), that court has never decided that section 3477 forbids assignment of a claim against the Director General. Lower federal courts and at least two state courts have held that it does not. Parrington v. Davis, 285 F. 741 (D. C. Or.); Empire Refining Co. v. Davis, 6 F.(2d) 305 (D. C. E. D. Okl.); Morgan v. Hines, 65 Mont. 306, 211 P. 778; Weiss v. Davis, Director General of Railroads, 250 Mass. 12, 144 N. E. 765 (reversed on other grounds in Mellon v. Weiss, 270 U. S. 565, 46 S. Ct. 378, 70 L. Ed. 736). These decisions rest upon section 10 of the Federal Control Act (40 Stat. 456), which expressly provides that "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." The plain purpose of section 10, as pointed out in Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 559, 41 S. Ct. 593, 65 L. Ed. 1087, was to preserve to the general public the rights and remedies against common carriers which were enjoyed at the time the railroads were taken over by the President, except in so far as such rights or remedies might interfere with the needs of federal operation. Moreover, it is highly significant that in Richmond Screw Anchor Co. v. United States, 275 U. S. 331, 341, 48 S. Ct. 194, 72 L. Ed. 303, the Supreme Court cited the Parrington Case in support of the statement that exceptions to the general language of section 3477 have been recognized because not within the evil at which the statute aimed.

But the appellant contends that, even if the privilege of assigning such a claim existed under the Federal Control Act, it was lost after the enactment of section 206 of the Transportation Act of 1920 (41 Stat. 456, 461, see 49 USCA § 74), because that act does not contain the above-quoted provision of section 10 of the Federal Control Act. Said section 206(a) reads as follows:

"Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 1916) 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 for such purpose. * * * Such actions, suits, or proceedings may, within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this Act, be brought in any court which but for Federal control would have had jurisdiction of the cause of action had it arisen against such carrier."

It seems to us...