203 P. 529 | Mont. | 1921
delivered tbe opinion of tbe court.
This is an appeal from tbe judgment and order denying defendant’s motion for a new trial. Upon verdict of a jury,
The action was brought by plaintiff by complaint filed April 10, 1918, on the theory that liability was created by the Employers’ Liability Law (35 Stat. 65; U. S. Comp. Stats., secs. 8657-8665; 8 Fed. Stats. Ann., 2d. ed., pp. 1208, 1339), rather than the federal control Act; it being argued that no new liability was created, that suits were not abated because of federal possession, and that the carrier might be sued as before.
The case was tried July 2, 1918, and judgment was entered
It is conceded by plaintiff’s counsel that the cause must be
By the Act of Congress of August 29, 1916, it is provided: “The President, in time of war, is empowered, through the secretary of war, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable.”
Pursuant to this enactment the President issued his proclamation of December 26, 1917, reading in part as follows:
And section 10 of the Act of March 21, 1918, designated as the Federal Control Act, wherein the action of the Chief Executive in taking over the possession and control of the operation of the railroads in the United States was ratified and approved, reads 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 carriér, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agent of the federal government. Nor shall any such carrier be entitled to have transferred to a federal court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the federal control of such carrier; and any action which has heretofore been so transferred because of such federal control or of any Act of Congress or official order or proclamation relating thereto
It seems clear from, these statutes and the proclamation of the President that the defendant corporation cannot be held liable for the wrongful death of which complaint is made. Although the Federal Control Act was not passed until after the accident in question, yet it was effective and made plain the government’s independent liability at the time this action was commenced. Until its enactment, the government had not given its consent to be sued, but that made no difference as respects the question of primary liability for the death made the basis of the action. Even though the government could not be sued, it would be manifestly unjust to hold the defendant corporation responsible for the government’s negligent operation of the railroad, simply because the government could not be reached.
Aside from the Federal Control Act, the government was in fact in possession of and conducting defendant’s railroad by virtue of the assertion of its sovereign power. Defendant was ousted, and had nothing to do with train operations, on its line at the time of the accident, and it would be absurd to hold the defendant corporation accountable for. negligent train operations by the government. True it is that the procedural remedy was not clear, and there was diversity of opinion expressed by the courts as to accountability for such torts after the President’s proclamation; however, after the promulgation by the director-general of railroads of General Order No. 50, issued October 28, 1918, the subject was made clear and set at rest. That order reads in part as follows: "Whereas, since the director-general assumed control of said systems of transportation, suits are being brought aud judgments and decrees rendered against carrier corporations on matters based on causes of action arising during federal control for which said carrier corporations are not responsible.
This order made plain the fact that the government and not the defendant corporation was operating the defendant’s railroad, and that the government rather than the defendant is accountable for the negligence alleged, resulting in the death of plaintiff’s intestate. In the case of Northern P. Ry. Co. v. North Dakota, 250 U. S. 135, 63 L. Ed. 897, 39 Sup. Ct. Rep. 502, involving the state’s right to fix rates on intrastate business, Mr. Chief Justice White, speaking for the court, said: “No elaboration could make clearer than do the Act of Congress of 1916, the proclamation of the President exerting the powers given, and the Act of 1918 dealing with
In view of this decision there can be no doubt as to the extent of the power conferred upon the President by Congress. (Hatcher & Snyder v. Atchison, T. & S. F. Ry. Co. (D. C.), 258 Fed. 952.) In the case of Missouri Pacific R. Co. v. Ault, 256 U. S. 554, 65 L. Ed. 647, 41 Sup. Ct. Rep. 593, a somewhat similar situation to that under consideration arose; the action being for wages due July 29, 1918, the date Ault was discharged as an employee of the carrier. Therein it was by the court said: “The company is clearly not answerable in the present action if the ordinary principles of common-law liability are to be applied. The railroad administration. established by the President in December, 1917, did not exercise its control through supervision of the owner companies, but
These decisions are conclusive; but, aside from them, to us it appears elementary that it is not within the province or jurisdiction of this court to grant a new trial merely because it appears that judgment has been had against the wrong party. More especially so when, ■ as in this case, the defendant used its utmost endeavors in the trial court to have the proper party defendant substituted for it. We cannot at this juncture of the proceedings say this is a meritorious case; the judgment is warranted, but you have sued and obtained a judgment against a party not legally responsible; therefore
Neither are we authorized, nor is it within our jurisdiction, to substitute a new party defendant and affirm the judgment as to such substituted party. The plaintiff deliberately elected to sue the corporation, as the party primarily responsible, and rejected the efforts made by the defendant to have the director-general of railroads substituted, and insisted that the defendant corporation alone was the party responsible. The defendant company seasonably asserted and persisted in maintaining its nonliability, since the government was in possession, control, and operation of its railroad at the time of the negligent-death of the plaintiff’s intestate. Were we to order a substitution of parties defendant at this time, and affirm the judgment as against the new defendant, we feel that our action would be arbitrary and wholly unwarranted. The judgment must stand or fall on its merits as- against the party as to whom it has been rendered, and new parties cannot thus be brought in and substituted arbitrarily without process or hearing, and made to respond in damages without being given their day in court. Indeed, learned counsel for the plaintiff, while insisting upon a reversal of the judgment as to the defendant corporation, frankly admitted on the argument in this court “that if the government is now in this case for the first time, no order of substitution can be made.”
The judgment and order appealed from are reversed and the cause is remanded, with directions to dismiss plaintiff’s complaint.
Beversed and remanded.