Rogers Bros. Coal Co. v. Hines

• Decision Date: 21 February 1922
• Citation: 237 S.W. 1058,193 Ky. 795
• Parties: ROGERS BROS. COAL CO. v. HINES, DIRECTOR GENERAL OF RAILROADS, ET AL.
• Court: Kentucky Court of Appeals

237 S.W. 1058

193 Ky. 795

ROGERS BROS. COAL CO. v. HINES, DIRECTOR GENERAL OF RAILROADS, ET AL.

Court of Appeals of Kentucky.

February 21, 1922

Appeal from Circuit Court, Muhlenburg County.

Action by the Rogers Bros. Coal Company against Walker D. Hines Director General of Railroads, and the Louisville & Nashville Railroad Company. From an order dismissing the action against the Railroad Company, plaintiff appeals. Affirmed.

Belcher & Belcher, of Greenville, for appellant.

Taylor Eaves & Sparks, of Greenville, and B. D. Warfield, of Louisville, for appellees.

CLAY J.

Rogers Brothers Coal Company sued the Director General of Railroads and the Louisville & Nashville Railroad Company to recover damages in a large sum for their failure, after reasonable notice, to furnish a sufficient number of cars to accommodate its business during certain months of the years 1918, 1919 and 1920. The Director General filed an answer in the nature of a plea in abatement, to which a demurrer was sustained. The railroad pleaded nonliability because of federal control and asked to be dismissed. From an order granting its prayer the coal company prosecuted an appeal not only against the railroad company, but against the Director General.

The appeal against the Director General having been dismissed, the only question before us is whether the ruling of the trial court in dismissing the action as to the railroad company was proper. Following his proclamation of December 26, 1917 (40 Stat. at L. 1733), issued pursuant to Act Aug. 29, 1916, c. 418, § 1, 39 Stat. at L. 619, 645 (Comp. Stat. § 1974a), the President took possession and control of the Louisville & Nashville Railroad on December 28, 1917, and proceeded to operate it through the Director General under the authority of the Federal Control Act (Act March 21, 1918, c. 25, 40 Stat. at L. 451; Comp. Stat. § 3115 3/4a-3115 3/4p; Fed. Stat. Ann. Supp. 1918, p. 757), section 10 of which provides in part as follows:

"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." U.S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, § 3115 3/4j.

Thereafter the President, acting by and through the Director General, issued General Order No. 50 and General Order No. 50a, providing in substance that all suits on causes of action arising out of federal control should be brought against the Director General of Railroads, and that the Director General might on application be substituted for the carrier company as party defendant in all pending suits of like character.

Though the acts of omission complained of occurred during the period of federal control, it is insisted that the liability of the railroad company was clearly fixed by section 10, supra, of the Federal Control Act. In this connection it is argued that, as the section applies not only to suits based on causes of action arising prior to federal control, but to suits based on causes of action arising out of federal control, the word "carrier" necessarily means the railroad company, and not the United States government or its agent having control of the railroad, and, that being true General Orders Nos. 50 and 50a are necessarily inconsistent with the Federal Control Act, and therefore invalid. There is authority for this position. Hines v. Mauldin, 146 Ark. 170, 225 S.W. 639; Kansas City R. Co. v. Rogers, 146 Ark. 232, 225 S.W. 640; La Valle v. Northern P. Ry. Co., 143 Minn. 74, 172 N.W. 918, 4 A.L.R. 1659; Gowan v. McAdoo, 143 Minn. 227, 173 N.W. 440; McGregor v. Great Northern Ry. Co., 42 N.D. 269, 172 N.W. 841, 4 A.L.R. 1635; Franke v. Chicago & N.W. Ry. Co., 170 Wis. 71, 173 N.W. 701; Jensen v. Lehigh Valley R. Co. (D. C.) 255 F. 795; Johnson v. McAdoo (D. C.) 257 F. 757; Dampskibs Actieselskabet Sangstad v. Hustis (D. C.) 257 F. 862; The Catawissa (D. C.) 257 F. 863. But we have held that the word "carrier," as applied to actions arising out of federal control, does not mean the carrier company which had been divested of all power and control over the operation of the railroad, but means the person actually engaged in operating the railroad, and therefore performing the functions of a carrier. Commonwealth v. L. & N. R. Co., 189 Ky. 309, 224 S.W. 847, 11 A.L.R. 1446. Not only is this view supported by the great weight of authority in the federal courts (Rutherford v. Union P. R. Co. (D. C.) 254 F. 880; Dahn v. McAdoo [D. C.] 256 F. 549; Dahn v. Hines [C.C.A.] 267 F. 105; Mardis v. Hines [D. C.] 258 F. 945; Id. [ C.C.A.] 267 F. 171; Hatcher v....