242 P. 895 | Cal. Ct. App. | 1925
Action by plaintiff to recover damages for injury to grapes in transit while the carriers on which the grapes were shipped were under government control. Plaintiff had judgment and the defendant appeals.
The action was begun on the first day of November, 1921, naming as defendants Southern Pacific Company and John Barton Payne, as agent, under section 206 of the act of Congress of the United States, known as the Transportation Act. Summons was issued in said action on the fourteenth day of July, 1922, and on the sixteenth day of August, 1922, an amended complaint was filed herein naming as defendants Southern Pacific Company and James C. Davis, as agent, under section 206 of the act of Congress of the United States, known as the Transportation Act, etc., and on the thirteenth day of October, 1922, a second amended complaint was filed herein, naming as defendant only James C. Davis, as agent as aforesaid. The shipment of grapes referred to herein took place in the fall of 1919. The defendant James C. Davis appeared and filed a demurrer to the second amended complaint, alleging, among other things, that said second amended complaint did not state a cause of action against said defendant and, also, that the alleged cause of action set forth in said second amended complaint was barred by the provisions of section 339 of the Code of Civil Procedure of the State of California, and by subdivisiona of section 206 of the Transportation Act of the United States of 1920. The defendant also moved the court to dismiss the action, among other things, upon the ground that at the time the action was brought against the said John Barton Payne, as agent, etc., he was no longer such agent; that on the twenty-eighth day of March, 1921, said John Barton Payne retired from office as agent under said Transportation Act, and on said last-named date said James C. Davis had been appointed as said agent, under section 206 of the Transportation Act, and that no proceedings were taken or had by the plaintiff in the above-entitled action for the substitution of said James C. Davis as a party defendant in the place and stead of John Barton Payne within one year after March 28, 1921, in accordance with the terms of that certain act entitled "An Act to prevent the abatement of certain Actions" passed by the Congress of the United *311 States, and approved February 8th, 1899. The demurrer interposed by the defendant was overruled and his motion denied and the cause proceeded to trial.
Two questions only are presented for consideration upon this appeal: 1. The opening of the cause for the taking of further testimony by the court, and, 2. The question of the statute of limitations. We think it necessary only to consider the latter question. [1] The record shows that more than two years had elapsed before the bringing in of the defendant James C. Davis, as agent under the Transportation Act, and that at the time suit was instituted John Barton Payne was not the agent under said act and had not been for some period of time. The amended complaints were filed in this case under the provisions of sections 472 and 473 of the Code of Civil Procedure, before any answers were filed or appearances made by any of the defendants named in the several pleadings.
While the cases referred to by counsel speak of substitution of parties, under our procedure what took place in this instance was not, in fact, a substitution of parties as that act is referred to and provided for in our codes, but was a bringing in of new parties by the filing of the amended complaints and naming of them parties defendant therein. This distinction is set forth inKittle v. Bellegarde,
"An order of court substituting a party is different from an order of court allowing `a party to amend any pleading . . . by adding or striking out the name of any party' by authority of section 473 of the Code of Civil Procedure. The substitution is made by the court, whereas the amendment is allowed to be made by the party. A substitution may be made, on suggestion and proof of the requisite facts, at the instance of either party, and might have been made on the suggestion and at the instance of the defendants in this case; whereas an amendment by adding or striking out the name of a party is only allowed at the instance of the party whose pleading is to be so amended. Again, the substitution of a party plaintiff necessitates no change in the defense; whereas the addition or striking out of a party by amendment may require or admit of a different defense." *312
In Jeffers v. Cook,
"By moving, in the original action, to make the subsequent grantees of the mortgagor parties to the action, the plaintiff followed the course of procedure approved in Goodenow v.Ewer,
"But it is contended that the cause of action was not barred because the original complaint in the action having been filed against the mortgagor in statutory time, stopped the running of the Statute of Limitations. (350 Code Civ. Proc.) That as a legal proposition is true as to the mortgagor who was made the sole party defendant to the action at the time of filing the complaint. And it would, also, have been true as to those who were subsequently made parties defendants by the supplemental complaint, if they had been made parties before the statute had run in their favor. The filing of the original complaint, therefore, stopped the running of the Statute of Limitations only as to him who was the party defendant at the time it was filed; it did not stop the running of the statute in favor of those who were not made defendants in the action at that time; the statute continued to run in their favor. As to them, no action was commenced until the *313 filing of the supplemental complaint in which they were named as defendants. The supplemental complaint was a continuance of the original action as against the original defendant; but it was the commencement of a new action as to them. Until they were made parties to the bill the action cannot be considered as having been commenced against them."
We do not find that this rule has been departed from in any subsequent California cases. The cases of Walsh v. Decoto,
"That statute impliedly imported into it the state practice with reference to substituting a new defendant by amendment," citing cases.
"The construction of section 206 of the Transportation Act for which the defendant contends, namely that it permits the substitution of the agent designated by the President only in suits `properly brought and pending at the termination of Federal control' seems to us unwarranted by the language of the entire act, and inconsistent with *315
its comprehensive scope, contemplating as it does the settlement of matters arising out of Federal control, in all the States. Admittedly the decisions which it cites are not decisive. InBryson v. Great Northern Railway,
"Finally the substitution of the defendant Davis was lawful and in accordance with the practice in this Commonwealth. The cause of action remained the same, in fact. And G.L.c. 231, Par. 138, expressly states `The cause of action shall be considered to be the same for which the action was brought, if the court finds it to be the cause of action relied on by the plaintiff when the action was commenced, however, the same may be misdescribed; and the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action,' (quoting cases). Our practice act, G.L.c. 231, Par. 51, provides: `The court may, at any time before final judgment, except as otherwise provided, allow amendments introducing a necessary party, discontinuing as to a party or changing the form of the action, and may allow any other amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, or enable the defendant to make a legal defense,' (citing cases)." *316
It is to be observed that we have nothing of that kind in the code provisions concerning the practice or the bringing in of parties in the state of California. Following the same rule, as laid down in the Aetna Mills case, the supreme court of Massachusetts, in L.L. Cohen Co., Inc., v. Davis, Agent,
Subdivision a of section 206 of the Transportation Act reads as follows: "Causes of Action Arising Out of Federal Control — (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."
In the case of Fischer v. Wabash Ry. Co.,
In Fahey v. Davis,
"This cause of action arose in April, 1919, during federal control of railroads. The railroads were returned to the owners by act of Congress on February 28, 1920; and under this act John Barton Payne was designated as the agent to be sued. This was done before this suit was filed. This suit was filed against this defendant on April 14, 1920. The substitution of the designated agent for the defendant in all pending suits, as authorized by the act, is not applicable to this case. This was not a pending suit when the federal control terminated. It should have been filed against John Barton Payne, Director General of Railroads. It was filed against the Louisville Nashville Railroad Company. A granting of the motion to substitute John Barton Payne, the agent designated by the President, as the sole party defendant, would work an entire change of the party defendant, and therefore offend our amendment laws, and this substitution is not authorized under the federal act of Congress, as it was not a pending cause when the federal control terminated. Hence there was no error in refusing the motion."
In Davis v. Griffith, 103 Okl. 137 [
"It is an elementary rule of law that the United States government cannot be sued without its consent, and, if it gives its consent, it has the right to prescribe the terms and conditions upon which it may be sued; and it can be sued, only, by compliance with such terms and conditions, whether reasonable or unreasonable," and further:
"We conclude that the United States could be sued, only, by making the agent, named by the President under Transportation Act of 1920 for such purpose, party defendant, who in this instance was James C. Davis; and that the trial court acquired no jurisdiction by the attempted substitution of Davis for Payne, since such jurisdiction could be had, only, by service of process." *319
This holding is, in effect, that the bringing in of Davis was the institution of the action as to him and as against the United States, and as this was not done within the period of time prescribed by the statute of limitations, the action was barred.
In Vassau v. Northern Pac. Ry. Co.,
In the case of Tutsch v. Director-General of Railroads,
We have referred to the various cases cited for the purpose of definitely setting forth the law in this state in relation *321
to amendments bringing in new parties under the code provisions of this state, as well as the Transportation Act of 1920, and also for the purpose of showing what cases set forth the law applicable to such as the one at bar, and the cases which have been, in effect, overruled by the United States supreme court. Whatever confusion may have arisen by the decisions in the several cases which we have cited, the law is now definitely settled in the case of Davis v. L.L. Cohen Co.,
"The Transportation Act, which passed in February, 1920, provided that the Federal Control should terminate on March 1, 1920. It further provided, in section 206(a), that suits and proceedings based on causes of action arising out of the possession, use and operation of a railroad under Federal Control, of such character as prior thereto could have been brought against the railroad company, might, after the termination of Federal Control, be brought *322 against an agent designated by the President for such purpose, `but not later than two years from the date of the passage of this Act.' It also provided, in section 206(d), that actions of the character above described, pending at the termination of Federal Control, should not abate by reason of such termination, but might be prosecuted to final judgment, substituting the agent designated by the President.
"At the termination of Federal Control there was no suit pending against the Director General to enforce the liability of the Government. The amendment of the writ and declaration in the suit against the Railroad Company, in October, 1922, by substituting the designated agent as the defendant, was, in effect, the commencement of a new and independent proceeding to enforce this liability. Being commenced more than two years after the passage of the Transportation Act, it was repugnant to the provision of section 206(a) requiring such an action to be instituted not later than two years after passage of the Act. This was the only consent the Government had given to being sued in such an action after the termination of Federal Control. Nor was this amendment authorized under section 206(d), which related solely to the substitution of the designated agent as the defendant in a suit which had been previously brought against the Director General to enforce the liability of the Government, that is, merely authorized the substitution, in such a suit, of another Federal Agent for the one already before the court. It had no application to suits pending against a railroad company alone in which there was no Federal Agent for whom the designated Agent could be substituted, where the substitution of the designated agent for the railroad company would work an entire change in the cause of action.
"These conclusions, we may add, are substantially the same as those of the State courts in Fahey v. Davis,
"It results that the provisions of the Massachusetts General Laws under which the plaintiff was allowed to amend *323 the writ and declaration so as to substitute the designated agent as the defendant instead of the railroad company, as construed and applied in the present case, are void because of repugnancy to section 206 of the Transportation Act.
"The judgment of the Superior Court is reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion."
The effect of this decision of the United States supreme court is to overrule all the cases relied upon by the plaintiff and respondent in this action, and as it is one in which the United States is, in substance and effect, attempted to be made the responsible party, this court is bound by the decision of the supreme court of the United States in the Cohen case. It follows that the demurrer of the defendant Davis and his motion to quash were both well taken.
The judgment of the lower court is reversed, with directions to either grant the defendant's motion or sustain the defendant's demurrer without leave to amend.
Hart, J., and Finch, P.J., concurred.