Rosenzweig v. Hines

• Decision Date: 13 April 1922
• Docket Number: 1973.
• Citation: 285 F. 622
• Parties: ROSENZWEIG et al. v. HINES, Director General of Railroads, et al.
• Court: U.S. District Court — Western District of New York

285 F. 622

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

No. 1973.

United States District Court, W.D. New York.

April 13, 1922

Edmund J. Stafford and Charles P. O'Neil, both of Detroit Mich., for plaintiffs.

Locke Babcock, Spratt & Hollister, of Buffalo, N.Y. (Raymond C Vaughan, of Buffalo, N.Y., of counsel), for defendants.

HAZEL District Judge.

1. Congress admittedly gave its consent that the United States might be sued in negligence for causes of action arising from its control of the railroads, and by General Order No. 50 the duly appointed Director General lawfully required that such an action be instituted against him instead of against the railroad company, and it has been decided by the Supreme Court, in Missouri Pacific Ry. Co. v. Ault, 256 U.S 554, 41 Sup.Ct. 593, 65 L.Ed. 1087, that no liability was imposed upon railroad corporations for damages in actions for negligent operation in consequence of the control of such railroads by the government. The consent to be sued has not been wholly extinguished by the provisions of the Transportation Act (41 Stat. 461), since it is there provided (section 206) that pending suits against the Director General and suits to be brought for liability during federal control should be continued and brought against an agent designated by the President, instead of the Director General.

In the present case the liability accrued during the period of governmental control. The process, however, was not served until about six months after the return of the railroad in question to its owner, and it appears that the action was irregularly brought against the Director General, who was not then acting in that capacity or in the capacity of agent against whom the action might properly be brought. Hence the contention is that this court did not obtain jurisdiction of the person of the defendant. But I am of a contrary opinion. Jurisdiction of the subject-matter involved herein and the right to entertain the suit as heretofore shown was specifically derived from the provision relating to federal control, and in my opinion plaintiffs' right of action and the remedy were not abated. Although the Director General was irregularly served with the summons and complaint, I think the designated agent had the right afterwards to waive any irregularity of that nature, and submit himself to the jurisdiction of the court by his general appearance, and answer to the merits, or by his consent to be substituted in the place of the Director General. Having done so by his attorney, he could not in fairness at the trial take the position that he had not been properly served with process in his representative capacity, and thus oust the plaintiffs.

2. The verdict rendered by the jury, it is true, was very large to wit, $95,000, and I have carefully considered the contentions of the defendant that on the proofs it was grossly excessive. The evidence showed that the deceased left him surviving two children, both boys, of the age of 6 and 4 years respectively, and that in his lifetime he was at all times solicitous of their welfare. His expectancy of life was about 31 years. His earnings as a dealer in automobile accessories averaged about $24,000 per annum during the four years immediately preceding his death, and were substantial during the period prior to such time and from the time that he engaged in business. He is shown to have possessed high business capabilities, was frugal and temperate in his habits, his health was good, and there were probabilities of large future financial gains from his business. From the evidence on this point the jury was warranted in concluding, I think, that in all reasonable probability his earnings would not appreciably decrease in future years, and that he no doubt would take...