1. A judgment entered in the Superior Court in Massachusetts in
accordance with a rescript from the Supreme Judicial Court on
exceptions reserved
held reviewable on writ of error
directed to the Superior Court. P.
268 U. S.
639.
2. The cause of action for damage to goods in transport over a
railroad under federal control was against the Director General of
Railroads exclusively. P.
268 U. S.
640.
3. When such an action was erroneously brought against the
railroad company, it could not be treated as an action against the
Director General, and service of process did not bring him into
court though made on an agent of the company who might have been
properly served in an action against the Director General.
Id.
4. Where such an action against a railroad company was pending
at the termination of federal control,
held (a) that
substitution, as defendant, of the Agent appointed by the President
under the Transportation Act, 1920, is not permissible under §
206(d) thereof, which relates only to suits previously brought
against the Director General; (b) that such substitution is in
effect the commencement of a new action, and a state statute
construed as allowing this by amendment later than two years from
the date of the Transportation Act is repugnant to the time
limitation in § 206(a) of that Act, and void. P.
268 U. S.
642.
247 Mass. 259 reversed.
Error to a judgment entered in a Superior Court of Massachusetts
upon a rescript from the Supreme Judicial Court, in an action for
damages, begun against a railroad company, in which the Agent
appointed by the President under the Transportation Act was
substituted as party defendant.
Page 268 U. S. 639
MR. JUSTICE SANFORD delivered the opinion of the Court.
This writ of error is brought to review a judgment in favor of
Cohen & Co. entered in the Superior Court of Bristol County,
Massachusetts, against James C. Davis, as Agent designated by the
President under the Transportation Act, 1920. [
Footnote 1] After a verdict had been rendered, but
before entry of judgment, the case was reported by the Superior
Court to the Supreme Judicial Court for instructions upon
exceptions that had been reserved by both parties, and thereafter,
in accordance with a rescript from the Supreme Judicial Court (247
Mass. 259), the judgment in question was entered in the Superior
Court. Under the Massachusetts practice that was followed, the
judgment is to be regarded as the final decision of the highest
court of the state in which a decision could be had, and the writ
of error was therefore properly directed to the Superior Court.
McGuire v.
Commonwealth, 3 Wall. 382,
70 U. S. 386,
and see Joslin Co. v. Providence, 262 U.
S. 668,
262 U. S.
673.
A petition for certiorari has also been filed, but as the case
is properly here on writ of error, that petition is denied.
The sole question here presented is whether the provisions of
the Massachusetts General Laws, c. 231, §§ 51, 138, authorizing
amendments in any process, pleading, or proceeding at any time
before final judgment, as construed and applied in this case, is
invalid because of repugnancy to § 206 of the Transportation
Act.
The suit was brought by Cohen & Co., in January, 1920,
against the New York, New Haven & Hartford Railroad Company to
recover for damages to a carload of scrap iron shipped over the
railroad in 1918, when it was under federal control. While the
railroad company was described
Page 268 U. S. 640
in the writ as a corporation "operated and controlled by the
United States Railroad Administration," the writ was directed to,
and served upon, the railroad company alone, and the declaration
was filed against it alone; no effort being then made to sue the
Director General. The railroad company appeared and filed an answer
denying the allegations of the declaration.
No further proceedings were had until September, 1922, when, on
the
ex parte motion of the plaintiff, the writ and
declaration were amended by striking out the name of the railroad
company and substituting the name of James C. Davis, Agent, and the
Director General of Railroads, as the party defendant. An order of
notice was then served upon Davis, who appeared specially and moved
that such service be set aside and the action against him dismissed
on the grounds that the service was void and the court was without
jurisdiction to entertain the action against him because the
proceeding against him had not been instituted within the time
prescribed by § 206 of the Transportation Act, and that any
provisions of the Massachusetts laws purporting to authorize such
proceeding were repugnant to the Transportation Act, and void. This
motion was denied, and Davis was required to answer. The case, in
which at every stage he preserved his original objections, finally
resulted in the judgment against him which it is now sought to
review.
Our conclusions may be briefly stated. The railroad company was
not liable for the cause of action that had arisen during federal
control; the sole liability being that of the Director General as
the representative of the government.
Missouri Pacific Railroad
v. Ault, 256 U. S. 554,
256 U. S. 557.
The original suit against the railroad company was not a suit
against the Director General, and the service of the original writ
upon the railroad company did not bring him before the court. While
originally, after the passage of the federal control Act, it was
sometimes
Page 268 U. S. 641
thought that the government might be held liable in a suit
brought against the carrier, describing it as in the hands or
possession of the Director General, all doubt as to how the suit
should be brought was cleared away by the General Order of the
Director General requiring that it should be brought against the
Director General of Railroads, and not otherwise.
Ault
case,
supra, p.
256 U. S. 561
(1921). [
Footnote 2] And it is
immaterial that, as admitted at bar, the service of the writ
against the railroad company was made upon a clerk upon whom
process against the Director General might have been served if the
suit had been brought against him.
"The Federal Agent was not bound to take cognizance of an action
against the railroad corporation, even though the service was on
the same local station agent, and even though the complaint stated
a cause of action for personal injuries sustained during government
control."
"
Davis v. Chrisp, 159 Ark. 335, 343."
The Transportation Act, which passed in February, 1920, provided
that the federal control should terminate on March 1, 1920. It
further provided, in § 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, he brought 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 § 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
Page 268 U. S. 642
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 § 206(a)
requiring such an action to be instituted not later than two years
after the 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 § 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, 224 Mich.
371;
Fischer v. Wabash Railway, 235 N.Y. 568;
Currie
v. Louisville & N. Railroad, 206 Ala. 402;
Davis v.
Chrisp, 159 Ark.,
supra, and
Davis v. Industrial
Commission (Ill.), 146 N.E. 569.
It results that the provisions of the Massachusetts General Laws
under which the plaintiff was allowed to amend
Page 268 U. S. 643
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 § 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.
Reversed.
[
Footnote 1]
Act Feb. 28, 1920, c. 91, 41 Stat. 456.
[
Footnote 2]
See General order No. 50 of the Director General, Oct.
28, 1918; amended by General Order No. 50-A, Jan. 11, 1919. U.S.
Railroad Administration Bulletin No. 4 (Revised) p. 334, and
Supplement, p. 58.