Bolton v. Missouri Pacific Railroad

248 S.W. 552, 157 Ark. 475, 1923 Ark. LEXIS 173

• Court: Supreme Court of Arkansas
• Decided: March 12, 1923
• Status: Published

Opinion

Hart, J.,

(after stating the facts). Under the Federal Control Act the rights and remedies against common carriers enjoyed at the time the railroads were taken over by the President, except in so far as such rights or remedies interfered with Federal operation, were preserved to the general public. Under the act suits might be brought and prosecuted against the railroad company for a cause of action which had become vested before the Director of Railroads took charge of the common carriers under the act of Congress. Mo. Pac. R. Co. v. Ault, 256 U. S. 554.

- According to the allegations of the complaint, the Missouri Pacific Railroad Company purchased the railroad which was the alleged cause of the injury to the plaintiff, some time after the injury occurred. Hence the plaintiff’s cause of action had become vested before the purchase was made of the railroad by the Missouri Pacific Railroad Company.

The complaint does not contain any allegation that the plaintiff had recovered judgment against the company operating the road at the time he received his injury, and that on this account a judgment against the operating railroad company would bind its property in the hands of another company purchasing it. In the absence of an allegation in the complaint that the plaintiff had recovered judgment against the company, or the receiver thereof operating the railroad, at the time the plaintiff received his injury, the Missouri Pacific Railroad Company, which subsequently obtained possession of the road by purchase under a decree of a chancery court, is not liable, and no lien can be fixed against its property. Williams y. Mo. Pac. Rd. Co., 134 Ark. 366, and C. R. I. & P. Ry. Co. v. McBride, 136 Ark. 193.

The complaint does not. allege that any suit was filed against the St. Louis, Iron Mountain & Southern Railway Company or against the receiver of such railway company and judgment obtained thereunder. The complaint does show that the injury was received by the plaintiff while the St. Louis, Iron Mountain &• Southern Railroad Company or its receiver was operating the road.

Therefore the court properly sustained a demurrer to the amended complaint, and the judgment must be affirmed.