224 P. 235 | Mont. | 1924
delivered the opinion of the court.
In her complaint the plaintiff claimed to have been injured on February 8, 1919, while employed by the Director-General of Railroads as a railroad operator at Cushman, Montana, on the line of the Great Northern Railway Company. She and her employer were then engaged in interstate commerce.
The action was commenced January 31, 1921. Plaintiff named as defendants “Director-General of Railroads and Great Northern Railway Company, a corporation.” Without obtaining from the court permission so to do, the plaintiff, on May 9, 1922, filed an amended complaint wherein she named as defendants “James C. Davis as Agent for the Government of the United States, successor in representation of the Director-General of Railroads, and Great Northern Railway Company, a corporation.” A copy of the amended complaint having been served upon one of the attorneys who appeared for the defendants named in the original complaint, the railway company appeared by demurrer which in due time was sustained, as a result of which action plaintiff dismissed the action as to that defendant.
James C. Davis, “as Agent of the Government of the United States,” appearing specially, challenged the jurisdiction of the court, moved to set aside the purported service of the amended complaint upon him on the ground that he never was made a
Thereupon Davis, as agent of the President of the United States, appeared specially for the purpose of challenging the jurisdiction of the court. He moved to set aside the service of the summons and to dismiss the action, asserting among other allegations that he had not been made a party to the suit; stating that he had been incorrectly designated as agent of the government of the United States, and that the attempted issuance of the so-called summons and amended complaint as to him were void, because all original authority of the state court to bring him in as presidential agent, and all authority to serve him as such, had expired under the statutes of the United States. The court overruled the motion and compelled the defendant Davis, as agent, to answer, which in due time he did, presenting the same objections urged in his motion in still greater detail in three separate defenses. Demurrer to these defenses was sustained. Two other defenses, consisting of a general denial and assumption of risk, were replied to by plaintiff, and upon the pleadings thus framed trial followed with judgment for plaintiff, from which the defendant has appealed.
The court erred in overruling the motion to set aside the service of summons and to dismiss the action and in sustaining the demurrer to the three separate defenses.
Unless the government of the United States expressly extends the privilege suit may not be brought against it. The privilege being extended the suitor must avail himself of the method provided; he must comply with the terms and conditions prescribed.
When the accident occurred the Great Northern Railway Company was under federal control. Whatever responsibility there was on account of the accident rested upon the
Federal control came to an end on March 1, 1920, by the terms of the Transportation Act (41 Stat. 456), wherein it was provided that actions of this character founded upon a cause of action arising during federal control might, after the renunciation of federal control, be brought against an ,agent designated by the President for that purpose. (Section 206, U. S'. Comp. Stats., Ann. Supp. 1923, sec. 1007114CC.) On March 11, 1920, the President appointed Walker D. Hines Director-General of Railroads and his successor in office as such agent. On May 28, 1920, Hines was succeeded by John Barton Payne, who in turn was succeeded by James C. Davis on March 28, 1921. (Vassau Case, supra.) To maintain this action against the United States on January 31, 1921, it was necessary to sue John Barton Payne as Agent of the President of the United States. This the plaintiff did not do. When she attempted to bring into the action James C. Davis as presidential agent, on May 9, 1922, she was too late.
Under the federal Employers’ Liability Act it was incumbent upon plaintiff to bring her suit within two years from the day the cause of action accrued. (35 Stat. 66; 36 Stat. 291; U. S. Comp. Stats., sec. 8662; Atlantic Coast Line R. R. v. Burnette, 239 U. S. 199, 60 L. Ed. 226, 36 Sup. Ct. Rep. 75 [see, also, Rose’s U. S. Notes]; Morrison v. Baltimore & Ohio R. Co., 40 App. Cas. 391, Ann. Cas. 1914C, 1026; Shannon v. Boston & Maine R. R., 77 N. H. 349, 92 Atl. 167.) The defendant pleaded the bar of this statute in his third separate defense; but the statute, creating as it does a right of action unknown at common law and specifying the time within which action based thereon may be
So it appears that the plaintiff did not bring her action within two years after the cause of action accrued. When she did attempt to bring suit she did not sue the United States in the manner prescribed. If she had sued within time still her action against the Director-General of Railroads when brought was nugatory. As in the Vassau Case the complaint did not state a cause of action against either of the parties originally made defendants. If the action had been commenced in time against the Director-General, substitution of himself as presidential agent within the time limited by law would have been permissible; or if the action had been commenced against John Barton Payne as presidential agent not later than February 8,
"Where there is an amendment bringing in a new party the limitation runs to the date of the amendment and operates as a bar when the statutory period of limitation has expired. (Davis v. Chrisp, supra.) Under the circumstances there was not and could not have been a substitution of parties defendant. (Vassau Case, supra.)
In view of the foregoing, other grounds of attack made by defendant against the maintenance of the action by plaintiff need not be considered.
The judgment is reversed, with direction that the district court enter an order dismissing the action.
Reversed.
