112 Kan. 823 | Kan. | 1923
The opinion of the court was delivered by
The action was one for damages for personal injuries sustained by the plaintiff on October 3, 1919, while engaged in performance of duties as a workman in the shops of the Union Pacific Railroad Company. A demurrer to the petition was overruled, and the defendant appeals.
On June 21, 1921, action for the injury complained of was commenced against the railroad company alone. On April 12, 1922, the plaintiff amended his petition by making the director-general a party, and by making the allegations which the amendment necessitated. On April 12, 1922, the director-general was served with
“Because the cause of action sued on is alleged to have accrued on October 3, 1919, and this action was not brought against this defendant until April 12, 1922, and was therefore brought more than two years after the passage of the transportation act of 1920, which act was enacted and became effective on February 29, 1920, and said cause of action was therefore barred when this action was commenced against this defendant, by section 206 of said transportation act.”
As indicated, this demurrer was overruled. The railroad was discharged on demurrer to the petition, because the accident occurred while its transportation facilities were operated by the government.
The transportation act of 1920 became effective on February 29, 1920. Pertinent provisions read as follows:
“Sec. 206. (a) Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 1916) 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, which agent shall be designated by the President within thirty days after the passage of this Act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this Act, be brought in any court which but for Federal control would have had jurisdiction of the cause of action had it arisen against such carrier.
“(b) 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 by or through the President for the conduct of litigation arising out of operation during Federal control. If no such contract has been made process may be served upon such agents or officers as may be designated by or through the President. The agent designated by the President under subdivision (a) shall cause to be filed, upon the termination of Federal control, in the office of the Clerk of each District Court of fhe United States, a statement naming all carriers with whom he had contracted for the conduct of litigation arising out of operation during Federal control, and a like statement designating the agents or officers upon whom process may be served in actions, suits, and proceedings arising in respect to railroads or systems of transportation with the owner of which no such contract has been made; and such statements shall be supplemented from time to time, if additional contracts are made or other agents or officers appointed.” (41 U. S. Stat. at Large, ch. 91, § 206, p. 461.)
“That the President of the United States designated the Union Pacific Railroad Company, as its agent, upon which service could and should be made in all actions growing out of Federal control; that the appointment of the Union Pacific Railroad Company as the agent of the government was not filed in the office of the clerk of the district court of the United States for the district of Kansas until June 4, 1920.”
The contention of the plaintiff is that because designation of a person on whom process might be served was not filed until June 4, 1920, the suit might be commenced at any time before June 4, 1922. -The difficulty with the contention is, it requires erasure from the act of congress of a very definite and plain provision, and the insertion of another provision more adaptable to the plaintiff’s needs.
After relinquishing control of the railroads, the government was not obliged to suffer itself to be sued, -through an agent or otherwise, on account of causes of action arising out of possession and use of the transportation systems of the country. Having decided to permit actions to be maintained, the government could impose such conditions as it. saw fit. One was that actions must be brought within the period of appropriate state or federal statutes of limitations. Another was that actions must be brought not later than two years from date of passage of the transportation act, or not later than February 28, 1922. This condition was not affected, modified, relaxed, or tolled, by anything else contained in the act.
A government agent who might be named as defendant was to be designated within thirty days after passage of the act; but the limit of time within which actions might be brought against him was not thereby extended thirty days, or any other period. Provision was then made relating to service of process to bring the designated agent into court. Certain lists were to be filed, which might be supplemented from time to time. These provisions, like the one for designation of an agent, went into effect with passage of the act, and were to be complied with afterwards; but the set time within which the government consented the remedial scheme might be used against it was not extended a single day. We are not dealing here with a statute of limitations, but with a condition imposed on exercise of a privilege, and'the uncompromising language is, “but not
The plaintiff says his petition states a good cause of action, either at common law, or under the workmen’s compensation act of this
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer to the petition, and to dismiss the action.