Parkinson v. Chicago, Milwaukee & St. Paul Railway Co.
178 N.W. 293
S.D.
1920
Check Treatment
McCOY, P. J.

plaintiff instituted two actions against the defendant, 'Chicago, Milwaukee & St. Paul Railw'ay Company-one for damage's for alleged negligent killing of her husband; the other for damages for alleged negligent destruction of the automobile in which the husband was traveling across the right of Way and tracks of said defendant at the time of his death, on 'the 12th day of August, 1918. Defendant railway company interposed like answers in both actions, to which plaintiff interposed demurrers on the ground that said answers do not state facts sufficient to constitute a defense or counterclaim to plaintiff’s' said causes of action. From an order in each case overruling said demurrers, the plaintiff separately appeals in each case, assigning such rulings as error. 'For the purposes of hearing and argument, such appeals have been consolidated.

The answers demurred to were as follows:

“That by virtue of the proclamation of the President of the United States dated December.' 26, 1917, and April 11, 1918, and by virtue of the act of Congress approved March 21, 1918, the railroad and all other property of the defendant, Chicago, Milwaukee & St. Paul Railway Company, was at all times mentioned in the complaint in the possession and control of and being operated by the Director General of Railroads appointed thereto by the President of the United States on behalf of apd under authority of the United States of ¡America, and the defendant was not at any time mentioned in the complaint in possession, control of, nor operating the line of railroad mentioned in the complaint.
“That by General Order N'o. 50, issued, promulgated, and published on the 28th day of October, 1918, all actions upon claims for death or injury to person or for loss or damage to property arising since December 31, 1917, are required to be brought against the Director General of Railroads, and all actions against the corporation owning or operating said road were and are by said order and others supplemental thereto prohibited.
“Wherefore this answering defendant prays that this action be dismissed, and' that plaintiff take nothing thereby.”

*165It is the contention of appellant that by virtue of the said act of CbngTess approved March 21, 1918 (U. S. Comp. 'St. 1918, Comp. 'St. Ann. S'upp. 1919, §§ 3ii'5)4a-3ii5%p) mentioned in said answers, her light to maintain these actions was expressly reserved although the physical possession of said railway system passed into the hands and under the control of the Director General of Railways, and that the said General Order No. 50, promulgated and published on October 28, 1918, was ineffectual and void for the reason that it is in conflict with said act of Congress. ■Said act of Congress contains the following provision:

“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 carrier, no defense shall be made thereto upon the ground' that the carrier is an instrumentality or agent of the federal government.”

The said Order No. 50, among other things contained the provision:

“It is therefore ordered that actions at law, * * * hereafter brought in any court based on * * * claims for death or injury to persons, or for loss and -damage to property, arising since December 31, 1917, and growing out of the possession, use, control, or operation of any railway 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.”

[1,2] We are of the opinion that said act of Congress is paramount and must control, and that any provision of Order No. 50 in conflict with said act are void. Lavalle v. N. P. Ry. Co. (Minn.) 172 N. W. 918, 4 A. L. R. 1659; Franks v. C. & N. W. Ry. Co. (Wis.) 173 N. W. 701. We are of the view that the cases at bar are in fact suits against the United -States, although the nominal party defendant is a railway corporation. By section 10 of said act of Congress of March 21, 1918 (section 3lx5}i'h 'U. 'S. Comp. Sfat. 1918), the United States expressly consented to be sued in state and federal courts in the name of the carrier. From and after the time of the taking over of said railway, the corporation and all its operating employes became *166agencies of the United States. It was evidently the purpose of Congress to have the rights of all persons having claims against railroads unembarrassed in procedure by government operation ■by consenting to suits nominally against the carirer, but which in fact were suits against the United States. Whether the United States, the Director General of Railways, or a railway corporation was named as party defendant in such cases, the action, nevertheless, was one against the United States, as, during government control, the names “Director General of Railways” and “'Chicago, Milwaukee & St. Paul Railway Company” were for the purposes of such suits but alias names of the United States, each relating to and meaning one and the same party. Westbrook v. Director General of Railways (D. C.) 263 Red. 211; Haubert v. B. & O. Ry. Co. (D. C.) 259 Red. 361. We are not unmindful that in the very recent case of McGrath v. N. P. Ry. Co., 177 N. W. 383, the Supreme Court of North Dakota has apparently held otherwise.

[3] Respondent contends that the allegations contained in said answer “that the defendant was not at any time mentioned in the complaint in possession, control of, or operating said line of railway mentioned in the complaint” constitutes a complete defense within itself, and that all the other portions of the answer might be treated as surplusage. This answer, taken as a whole, will bear no other construction than that at the time in question, A¡ugust 12, 1918, the said railway system was in possession and control of the United States under the authority of said acts of Congress.

The orders appealed from are reversed, and the causes remanded for further procedure in harmony with this decision.