239 Mass. 254 | Mass. | 1921
This is an action to recover the value of a bale of rags, claimed to have been damaged or destroyed in transit. The shipment was made on November 21, 1918; and the action was brought in May, 1919. The controlling question raised is whether the action should have been brought against the Director General of Railroads.
In his proclamation of December 26,1917, whereby the President took possession and control of the transportation systems of the country, and appointed William G. McAdoo Director General of Railroads, it was provided: “ Said Director may perform the duties imposed upon him, so long and to such extent as he shall determine, through the Boards of Directors, Receivers, officers, and employees of said systems of transportation. Until and except so far as said Director shall from time to time by general or special orders otherwise provide, the Boards of Directors, Receivers, officers, and employees of the various transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers, in the names of their respective companies.” This left it uncertain whether the carriers were left in general control of their properties, and hable as formerly for occurrences in the course of their operation, or whether they were excluded from the control of the physical properties and consequent liabilities during federal control. Then followed the Federal Control act of March 21, 1918, c. 25; 40 U. S. Sts. at Large, 451. In § 10 of that act, Congress provided: “ carriers while under Fedéral 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
On October 28, 1918, the Director General issued his General Order No. 50. After referring therein to the proclamations of the President, and the federal control act, it recites: “ Whereas since the Director General assumed control of said systems of tranportation, suits are being brought and judgments and decrees rendered against carrier corporations on matters based on causes of action arising during Federal control for which the said carrier corporations are not responsible, and it is right and proper that the actions, suits and proceedings hereinafter referred to, based on causes of action arising during or out of Federal control should be brought directly against the said Director General of Railroads and not against said corporations:
“It is therefore ordered, that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31,1917, and growing out of the possession, úse, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit, or proceeding but for Federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of Railroads, and not otherwise; provided, however, that this order shall not apply to actions, suits, or proceedings for the recovery of fines, penalties, and forfeitures.” It also provided that the pleadings in actions and suits pending against carriers, for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operating of any railroad or other carrier, might be amended by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom. General Order No. 50-A., issued by Mr. McAdoo’s successor, Mr. Hines, is to the same effect.
Whatever uncertainty may exist as to the interpretation of other provisions in the orders of the Director General, the language of Order No. 50 is explicit that in a case like the present, which arose after that order went into effect, the action should
Since this opinion was adopted there has been published the decision of the Supreme Court of the United States in Missouri Pacific Railroad v. Ault, 256 U. S. 554, which sustains our conclusion as to the validity of Order No. 50. In the language of the court, “As the Federal Control Act did not impose any liability upon the companies on any cause of action arising out of the operation of their systems of transportation by the
Order dismissing report affirmed.