Rutherford v. Union Pac. R. Co.

• Citation: 254 F. 880
• Parties: RUTHERFORD v. UNION PAC. R. CO.
• Decision Date: 11 January 1919
• Court: U.S. District Court — District of Nebraska

254 F. 880

RUTHERFORD v. UNION PAC. R. CO.

United States District Court, D. Nebraska, Hastings Division.

January 11, 1919

Tibbets Morey, Fuller & Tibbets, of Hastings, Neb., for plaintiff.

C. A Magaw, of Omaha, Neb., and Ragan & Addie, of Hastings, Neb for defendant.

MUNGER District Judge.

The defendant, the Union Pacific Railroad Company, has presented a motion to substitute William G. McAdoo, Director General of Railroads, as the defendant in this action in the place of the railway corporation. The action is one for damages for personal injuries inflicted on the plaintiff by the defendant while he was being transported as a passenger by the railroad company, and occurring since December 31, 1917, and was begun on October 26, 1918.

The defendant supports its motion by that part of Order No. 50 of the Director General of Railroads, dated October 28, 1918 which reads as follows:

'The pleadings in all such actions at law, suits in equity, or proceedings in admiralty, now pending against any carrier company for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operation of any railroad or other carrier, 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 plaintiff claims that by the terms of section 10 of the act of Congress approved March 21, 1918 (Comp. St. 1918, Sec. 3115 3/4j), 'actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law,' and therefore he is entitled to bring and maintain his action and to prosecute it to judgment against the railroad company named as defendant, and that the order of the Director General is not effective, because it is violative of this provision of the statute.

The question involved is the proper meaning of the word 'carriers' as used in this statute. Before the enactment of this statute the President by his proclamation of December 26, 1917, had taken possession and control of the railroads of the United States, acting under the authority granted to him by the act of Congress approved August 29 1916 (39 Stat. 645, c. 418, Sec. 1 (Comp. St. 1918, Sec. 1974a)). The proclamation had directed that this possession, control, and operation should continue to be exercised by William G. McAdoo, as Director General of Railroads, and unless he should otherwise provide by order, that the board of directors, receivers, officers, and employes should continue the operation of the railroads in the names of their respective companies. From and after the taking of possession of the railroads by the President, the corporations or persons who had previously controlled them ceased their functions and obligations as carriers. While goods...