Granquist v. Duluth, Missabe & Northern Railway Co.

Lees, C. Tbis action grew out of tbe great forest fires wbicb, on October 12, 1918, destroyed many lives and much property in northern Minnesota. Tbe action was brought against tbe Duluth, Missabe & Northern Railway Company, then under Federal control, John Barton Payne, as tbe agent designated by tbe President under tbe Transportation Act of 1920, two railroad companies not under Federal control, and two St. Louis county lumber companies, to recover damages for negligently permitting fires to start and spread over territory in tbe vicinity of Duluth, thereby causing tbe death of plaintiff’s intestate on tbe date above mentioned. In accordance with tbe practice finally approved by tbis court in Federal control cases, plaintiff subsequently dismissed as to tbe Duluth, Missabe & Northern Railway Company. In January, 1923, she moved to amend ber complaint by adding thereto tbis allegation: “That tbe Great Northern Railway Company was and is a common carrier, operating a line of railway between Carlton and Grand Rapids and between Brookston and Malden and Fermoy and Kelly Lake and between other points on said line of railway in tbe State of Minnesota.” [219] Tbe purpose of tbe amendment was to allege negligence in tbe operation of tbe Great Northern road while it was under Federal control, as well as in tbe operation of tbe Duluth, Missabe & Northern. There was opposition to tbe motion, and, after a bearing, tbe court denied it, bolding that it bad no authority to .permit such an amendment and refusing to exercise tbe discretion which tbe courts ordinarily possess in passing upon applications for tbe amendment of pleadings. Tbe order recites that it was admitted that service on tbe agent of tbe President bad been made solely by serving tbe summons on tbe treasurer of tbe Duluth, Missabe & Northern; that no service bad ever been made on any officer, agent or employe of tbe Great Northern; and that plaintiff’s failure to plead tbe matter set forth in tbe proposed amendment was due to inadvertence. This appeal brings tbe order here for review. Tbe original complaint contains no reference whatever to tbe Great Northern Railway system. So far as tbe representative of tbe government is concerned, tbe sole charge of negligence relates to tbe operation of tbe Duluth, Missabe & Northern system. Appellant takes tbe position that after tbe railroad systems of the country passed under Federal control, first tbe director general, and later tbe agent designated by tbe President, was tbe only necessary or proper party defendant where suit was brought to enforce a cause of action arising out of tbe operation of any such railroad system. More specifically, it is contended that tbe service of tbe summons brought tbe agent of tbe President into court not only as tbe representative of tbe United States in control of tbe Duluth, Missabe & Northern, but also as its representative in control of all other railroads which bad been taken over. Tbe contention is that all tbe railroad properties in tbe United States under such control were organized into a unified national system of transportation under a single bead, and that service of process on an officer or agent of one of tbe carrier companies brought tbe representative of tbe government into court to defend as to any carrier which might have been joined as a defendant prior to Federal control. To meet tbe objection that when tbe motion to amend was made an action could no longer be brought to charge either the government or tbe Great [220] Northern road with liability because of the statute of limitations of this state, section 8175, G. S. 1913, and the prolusions of section 206 of the Transportation Act, 41 St. at Large, p. 461, plaintiff contends that the amendment did not introduce a new cause of action, but merely amplified the statement of the cause of action first pleaded. The statement that, when Federal control began, all the railroads were organized into a unified national system under the direction of a single head is found in Globe v. Hines, 273 Fed. 774. But in Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. ed. 1087, Mr. Justice Brandéis, speaking for the court, said that the President took over the physical properties of the railroads as transportation systems and placed them under a single directing head; that the situation was analogous to that which would hare existed if there had been a general receivership of each system; that the President took over the physical properties, the transportation systems, as entities and they were always dealt with as such; that this conception of a transportation system as an entity dominated the act authorizing Federal control, and that the systems were regarded much as ships are regarded in admiralty and are dealt with as active, responsible parties, answerable for their own wrongs. In Dahn v. Davis, 258 U. S. 421, 42 Sup. Ct. 320, 66 L. ed. 696, it was said the Federal Control Act permitted the government, through the director general, to be sued for any injury negligently caused on any line of railway in his custody precisely as any common carrier corporation operating such railway might have been sued, and the recovery, if any, would be from the United States. In Bostwick v. Director General, 220 Mich. 21, 189 N. W. 907, it was said that, although the railroads were taken over and operated under a single directing head, there was no such consolidation as rendered them in effect one company; their separate identity was not merged; each system was operated independently of every other. And in Farr v. St. Louis S. W. Ry. Co. 154 Ark. 585, 243 S. W. 800, it was held that service of process in actions against the director general must be made in the same manner as formerly made against each transportation entity he represents. Service on him as the representative of [221] one railroad company does not bring Mm into court as the representative oí another company. Following what we conceive to be the views of the court expressed in Missouri Pac. R. Co. v. Ault, and the reasoning of the opinions in the Bostwick and Farr cases, we hold that the agent of the President could not be charged with negligence in the operation of the Great Northern system without bringing him into court by the service of process on an agent or officer of that company in the manner prescribed by section 206 of the Transportation Act. See also Davis v. L. N. Dantzler Lbr. Co. 261 U. S. 280, 43 Sup. Ct. 349, 67 L. ed. -. Appellant asserts that the Federal government is the real party in interest in all actions founded on claims which originated while it was in control of the railroads, and concludes that one service of process is all that is necessary no matter how many railroad systems are involved. Granting that the United States is the real party in interest, the fact remains that it cannot be sued except in the manner and upon the terms prescribed by Congress. Louisiana v. McAdoo, 234 U. S. 627, 34 Sup. Ct. 938, 58 L. ed. 1506; Keegan v. Director General, Mass., 137 N. E. 341; Dahn v. Davis, supra. Section 206 of the Transportation Act reads thus-. “Actions at law * * * based on causes of action arising out fo the possession, use, or operation by the President of the railroad or system of transportation of any carrier * * * 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. * Process may be served upon any agent or officer of the carrier operating such railroad or system of transportation, if such agent or officer is authorized by law to be served with process in proceedings brought against such carrier and if a contract has been made with such carrier * * * for the conduct of litigation arising out of operation during Federal control.” In authorizing the bringing of actions against the representative of the United States, Congress has employed language indicating that the cause of action asserted against him must be one which arose out of the possession or use of the particular railroad which [222] might have been sued if there had not been Federal control, and that the service of process upon an officer or agent of such railroad would give the court jurisdiction over the agent of the President only in his capacity as representative of the government in the operation of that particular railroad. This is an additional reason for the conclusion to which we have come. For these reasons the order appealed from is affirmed.