Robinson v. Central of Georgia Railway Co.

102 S.E. 532, 150 Ga. 41, 1920 Ga. LEXIS 16

• Court: Supreme Court of Georgia
• Decided: February 25, 1920
• Docket: No. 1325
• Status: Published

Opinion

Atkinson, J.

The Court of Appeals has propounded certain questions to which the following are answers: On August 29, 1916, (39 Stat. 645), Congress gave the President power “in time of war . . to take possession and assume control of any system or systems of transportation, or any part thereof,- and to utilize the same, to the exclusion, as far as may be necessary, of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, as may be needful or desirable.” After war had been declared with Germany and Austria, the President, on December 26, 1917, referring to the existing state of war and the power with which he had been invested by Congress, proclaimed: “Under and by virtue of the powers vested in me by the foregoing resolutions and statute, and by virtue of all other powers thereto me enabling, [I] do here take possession and assume. control at 12 o’clock noon on the twenty-eighth of December, 1917, of each and every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the continental United States, and consisting of railroads and owned or controlled systems of coastwise and inland transportation engaged in general transportation, whether operated by steam or by electric power, including also terminals, terminal companies, and terminal associations, sleeping and parlor cars, private cars and private car lines, elevators, warehouses, telegraph and telephone lines, and all other equipment and appurtenances commonly used upon or operated as a part of such rail’or combined rail and water systems of transportation; to the end that such systems of transportation be utilized for the transfer and transportation of troops, war material and equipment, to the exclusion, so far as may be necessary, of all other traffic thereon; and that so far as such exclusive use be not necessary or desirable, such systems of transportation be operated and utilized in the performance of such other services as the national interest may require, and of the usual and ordinary business and duties of common carriers.” The proclamation in conclusion declared further that “From and after 12 o’clock on.said . . day of December, 1917, all transportation systems included in this order and proclamation shall conclusively be deemed within the possession and control of said director without further act or notice.” Subsequently to the date appointed for the proclamation to go into effect, the injury which is the basis of this suit occurred on March 19, 1918. After the injury occurred, the act of Congress approved March 21, 1918, became effective. By section 10 thereof it was declared, in part: “That carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control, or with any order of the President. 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 agency of the Federal Government.” Fed. Stat. Ann., 1918 Supp. 762, sec. 10 (U. S. Comp. Stat. Ann. Supp. 1919, § 3115%j).

1. In virtue of the act of August 29, 1916, c. 418, and the proclamation of the President (U. S. Comp. Stat. Ann. Supp. 1919, § 1974a), which by its terms went into effect at 12 o’clock on the 28th day of December,-1917, the railroads contemplated in the act and proclamation passed into the possession and control of the director-general. Northern Pacific Ry. Co. v. North Dakota ex. rel. Langer, 250 U. S. 135 (39 Sup. Ct. 502, 63 L. ed. 897). Section 10 of the act of March 21, 1918 (supra), properly construed, recognizes liability of the government to suit, among other things, for injuries received on account of negligence of the agents and servants engaged in operating the railroad “while under Federal control,” which, as above ruled, became operative immediately upon the President’s proclamation becoming effective, and was a declaration of the assent of the government to the institution of a suit of such character against it. Westbrook v. Director-General of Railroads, 263 Fed. 211.

2. Where an injury occurred between the dates of the President’s proclamation and the act approved March 21, 1918, and a suit based thereon was instituted subsequently to the date of the act, but prior to the assent of general order No. 50 promulgated by the director-general of railroads, which in effect gave directions that suits for injuries resulting from operation of railroads while under Federal control should be brought against the director-general, under proper construction of the act of 1916 and the proclamation of the President and the act of .1918, such suit (of the .character involved in this case) was maintainable against the government without the aid of general order No. 50 by the director-general of railroads.

3. Where a suit of the character just indicated was instituted subsequently to the act of March 21, 1918, and the name of the defendant was alleged as the railroad company and the petition and process were served upon the agents engaged in operating the railroad company, inasmuch as the railroad was being operated by the government, and the government would be suable for any injuries caused by its agents and servants, the suit was in effect against the government. Westbrook v. Director-General, supra. Accordingly, the petition could be amended by substituting the director-general of railroads in his representative capacity as defendant in lieu of the railroad company.

All the Justices concur, except Gilbert, J., absent on account of sickness.