1. Substitution of the federal Agent as defendant in a suit
erroneously brought against a railroad company on a cause of action
for nondelivery of goods that arose during federal control is in
effect the commencement of a new and independent proceeding.
Davis v. Cohen Co., 268 U. S. 638. P.
270 U. S.
567.
2. Therefore, the suit will be barred by a time limit in the
bill of lading if the substitution be not made within that limit,
dating from the arising of the cause of action.
Id.
250 Mass. 12 reversed.
Certiorari to a judgment, entered upon direction of the Supreme
Judicial Court of Massachusetts, adjudging damages to the plaintiff
Weiss, as administrator, in a suit brought originally against the
New York, New
Page 270 U. S. 566
Haven & Hartford Railroad Company for nondelivery of a bale
of rags. Davis, Director General of Railroads and Agent under the
Transportation Act, was substituted as defendant below, and in this
Court was succeeded by the petitioner Mellon.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
In November, 1918, while the New York, New Haven & Hartford
Railroad was under federal control, a bale of rags was received for
shipment to Louis Cutler, the owner. The reasonable time for
delivery expired in December, 1918. The rags were never delivered.
Cutler assigned his claim for damages to Nominsky. In May, 1919,
the latter commenced this action thereon in a state court of
Massachusetts. Because he named the railroad company as sole
defendant, the action was dismissed by the trial court. In June,
1921, that judgment was affirmed by the Supreme Judicial Court.
Nominsky v. New York, New Haven & Hartford R. Co., 239
Mass. 254.
See Missouri Pacific R. Co. v. Ault,
256 U. S. 554. In
January, 1922, the writ and declaration were, by leave of the trial
court, amended under § 206(a), Transportation Act 1920, c. 91, 41
Stat. 456, 461, by substituting as defendant Davis, Agent and
Director General. The summons was immediately served upon him.
Later Nominsky died. Weiss, his administrator, was substituted as
plaintiff.
Davis, appearing specially to object to the jurisdiction of the
court over him, asked that the suit be dismissed. Without waiving
that objection, he asked for judgment upon the following, among
other, grounds: the shipment
Page 270 U. S. 567
had been made on an order bill of lading which provided
that:
"Suits for loss, damage, or delay shall be instituted only
within two years and one day after delivery of the property, or, in
case of failure to make delivery, then within two years and one day
after a reasonable time for delivery has elapsed."
Davis claimed that, although the substitution of him as
defendant was made within two years from the termination of federal
control, the action was barred by the bill of lading, because the
substitution was not made until after two years and one day from
the lapse of the reasonable time for delivery. The objection was
overruled by the trial court, and it entered judgment for the
plaintiff. The appellate division ordered judgment for the
defendant. The Supreme Judicial Court reversed that order and
directed the trial court to enter judgment for the plaintiff.
Weiss v. Director General of Railroads, 250 Mass. 12. This
Court granted a writ of certiorari, 267 U.S. 588, on January 26,
1925.
Since then,
Davis v. L. L. Cohen & Co., Inc.,
268 U. S. 638,
268 U. S.
640-642, has settled that a suit against a railroad
company is not a suit against the Director General; that § 206(d)
of Transportation Act of 1920 authorized substitution of the
designated Agent as defendant only in a suit which had been brought
during federal control against the Director General, and that, in a
suit against a railroad company pending at the termination of
federal control, an amendment of the writ and declaration by
substituting as defendant the designated Agent is to be deemed the
commencement of a new and independent proceeding to enforce the
liability of the government. Applying that rule, there was in the
case at bar no suit to enforce the government's liability pending
at the termination of federal control. The order substituting the
Agent was not made until more than two years and a day after the
cause of action arose, and, as such, an order of substitution is
held to be the commencement of a new and independent
Page 270 U. S. 568
proceeding, it follows that the suit is barred by the terms of
the bill of lading.
Other objections made by the defendant to the action of the
state court need not be considered.
Reversed.