Stricklin v. Davis, 196 N.C. 161 (1928)

Oct. 10, 1928 · Supreme Court of North Carolina

196 N.C. 161

JOSEPH STRICKLIN and THEO. F. COLLINS v. JOHN C. DAVIS.

(Filed 10 October, 1928.)

Parties Defendant — Persons who Must he Sued in Action Against Railroad Under Federal Control.

The United States Director General of Railroads is a necessary and only party defendant in an action for negligence when the railroads were under government war control, and when the present incumbent has not been made a party, the action is properly dismissed.

Appeal by plaintiffs from Granmer, J., at February Term, 1928, of Lenoir.

Affirmed.

Shaw & Jones for appellant.

Rouse & Rouse for appellee.

Pee Curiam:.

On 25 April, 1921, plaintiffs brought suit against the Norfolk Southern Railroad Company, Seaboard Air Line Railroad Company, and the Randolph & Cumberland Railway Company for the recovery of damages for negligence in the transportation of certain horses and mules from Kinston in Lenoir County to Carthage in Moore County. On 29 January, 1924, plaintiffs filed their complaint alleging that the horses and mules were delivered to the initial carrier at Kinston on 4 December, 1919. The return of the officers shows service on the several railroads; and after complaint was filed James C. Davis entered a special appearance and moved to dismiss the action for the reason that between 1 January, 1918, and 29 February, 1920, the United States Government through the Director General of Railroads operated the railroads in question and that the railroads were not in the use, possession or control of their property. Thereafter an amended complaint was-filed, and an answer thereto in which it is alleged that the suit had never been instituted against James C. Davis, Director General, as provided by section 206 of the Transportation Act of 1920. At the June Term, 1924, Judge Horton ordered that the original summons and all other process and pleadings should be amended so that the name of John C. Davis, Director General, should be corrected so as to read James C. Davis, Director General; also that the action be dismissed as to the several railroad companies which had been made parties defendant, James C. Davis’s tenure as Director General continued from 26 January, 1921, to 14 December, 1925, and at the latter date he was succeeded by Andrew W. Mellon as Director General. It will be noted that Andrew W. Mellon has never been made a party and that, the railroad companies are not parties defendant. Upon this ground Judge Granmer at February Term, 1928, rendered judgment dismissing the action at the cost of the plaintiffs. In this judgment we find no error. Mellon v. Lumber Company, U. S. Advance Opinions, 16 January, 1928, p. 154.

Affirmed.