Tutsch v. Director-General of Railroads

SHAW, J.

Plaintiff appeals from a judgment dismissing the action, which followed an order of the court sustaining a general demurrer to the complaint and an order granting defendant’s motion to dismiss.

It appears from the complaint that on July 24, 1919, plaintiff, due to the negligence of the Los Angeles & Salt Lake Railroad Company, sustained personal injuries, and for the recovery of damages therefor she, on July 23, 1920, filed a complaint wherein the Director-General of Railroads of the United States was made sole defendant. In due time said defendant filed his demurrer and motion to dismiss the action. On the day of the hearing of the demurrer and motion plaintiff, as shown by the record,

without leave of court,

filed an amendment to the complaint wherein she alleged “that John Barton Payne was, under the Transportation Act of 1920, sections 205, 206, designated agent by the President of the United States of America, for the purpose of being a party defendant in actions brought against the Los Angeles & Salt Lake Railroad Company, as set forth in the complaint, and that said agent, John

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Barton. Payne, be and that he is hereby made a party defendant with the Director-General of the Railroads of the United States, in the above-entitled cause.” At the hearing the demurrer was sustained and the motion granted.

The alleged injury was sustained on, July 24, 1919, at which time the Los Angeles & Salt Lake Railroad was, pursuant to an act of Congress and proclamation of the President, under federal control and operated by the Director-General of Railroads of the United States. Under an act of Congress adopted February 28, 1920 (c. 91, 41 Stat. 456), such control and right to operate the railroad terminated on March 1, 1920. Subdivision (a) of section 206 of this last act provides that actions at law based on causes of action arising out of thé possession, use, or control by the President of the railroad or system of transportation of any carrier of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against the agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this act; and that “such actions, suits, or proceedings may, within the periods of limitation now prescribed by state or federal statutes but not later than two years from the date of the passage of this act, be brought in any court which but for Federal control, would have had jurisdiction of the cause of action had it arisen against such carrier.” Pursuant to the authority conferred by subdivision (a), the President designated John Barton Payne as the agent against whom actions of the character here involved should be brought. It thus appears that when the complaint herein was filed on July 23, 1920, no warrant of law existed for suing the Director-General of Railroads . on account of the injury sustained by plaintiff, and hence the complaint stated no cause of action against him. Subdivision 3 of section 340 of the Code of Civil Procedure provides that,The period for commencing an action for damages sustained by reason of the wrongful act or negligence of another is one year; hence when plaintiff, on August 17, 1920, sought to amend her complaint by making John Barton Payne the party defendant, more than one year had elapsed subsequent to the date of the injury, and since by subdivision (a) of