Atkinson v. Philadelphia, Baltimore & Washington Railroad

Adkins, J., delivered the opinion of the court. This is an action for damages for personal injuries by the appellant against the appellee under1 the Federal Employers’ Liability Act of 1908. The injury complained of occurred while the road and transportation equipment of appellee were under the control of the Federal Government. A demurrer to the narr. was sustained by the trial court, the ground of the demurrer being that the wrong defendant was sued.

Appellant contends that this objection cannot properly be made by demurrer. We do not agree with this contention. If the narr., conceding all its allegations to be true, does not make out a good case against the defendant, we see no reason why the point may not be successfully made by demurrer as well where the defendant is not responsible for the alleged act of negligence as where the act itself does not constitute a good cause of action. Mardis v. Hines, Director General, 258 Fed. Rep. 945; Haubert v. Balto. & O. R. R. Co. et al., 259 Fed. Rep. 361.

It is conceded that courts will take judicial notice of Acts of Congress. And we held in Hettleman v. Frank, 136 Md. 351 , that courts in this state would take judicial notice of proclamations issued during the war and given general circulation. But, assuming that the question could be raised by demurrer, it is further strongly contended by appellant that the demurrer should have been overruled because Order No. ⁶³⁴ 50 of the Director General deprives the plaintiff of his remedy against the carrier, which is vested in him by the Federal Employers’ Liability Act of Congress, and which Section 101 of the Federal Control Act of March 21st, 1918, affirmatively preserves, and is therefore invalid. The argument overlooks the important exception in Section 10, which follows the provision 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, viz: “Except 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.” It also overlooks the exception, in the President’s proclamation assuming control of the railroads, to the provision that suits might be brought by and against said carriers and judgments rendered as hitherto, viz: "Until and except so faw as said Director General may, by general or special order, otherwise determine.” And if it be objected that Section 10 refers to orders of the President and not to those of the Director General, such objection is answered by Section 8, of the Act which provides that “The President may execute any of the powers herein and heretofore granted him with relation to federal control through such agencies as he may determine.” See Mardis v. Hines, supra.

An interesting construction of the meaning of the words “such carriers,” as used in Sec. 10 of the Act of 1918, is given by Judge Hunger of the District Court of Nebraska in Rutherford v. Union Pacific R. R. Co., 254 Fed. Rep. 880. He held that what was meant was the “carriers while under federal control,” that is, the Director General. He calls attention to the fact that the act did not provide that action might be bi’ought against the railroad corporation; and he refers to the concluding sentence of Section 10 as supporting this view, said sentence reading: “And in any action at law or suit in equity against the earner no defense shall be