The opinion of the court was delivered by: MORRIS
This action was originally brought by the plaintiff for certain relief because of the alleged infringement of a patent by the Washington Terminal Company, a corporation. Several amendments to the complaint were allowed and additional defendants were named. By various motions all defendants were eliminated, excepting the Washington Terminal Company and the Pennsylvania Railroad Company. By Executive Order of December 27, 1943, No. 9412, the President, pursuant to the Act of Congress, approved August 29, 1916, 39 Stat. 645,
took possession and control of all common carriers by railroads through the Secretary of War, who designated Lieutenant General Brehon Somervell, Commanding General of the Army Service Forces, to take charge of and operate the railroads pursuant to such executive order. Subsequently, the plaintiff filed a motion for leave, by amended complaint, to make Lieutenant General Somervell, in his official capacity, a party to this suit. On January 18, 1944, the Secretary of War promulgated an order terminating government possession, operation and control of the carriers as of midnight of that date. In such order, it was provided by paragraph 3b as follows:
"In view of the short period of operation by the government under said Executive Order, all rights which the United States may have to an accounting with respect to the operation of the carriers during the period of government possession, operation and control are hereby waived and released as to each carrier whose properties were taken pursuant to said Executive Order which shall execute and deliver to the United States an instrument in the form approved by the Commanding General, Army Service Forces, or his delegate, indemnifying the United States against liability to third parties arising out of possession, operation and control during the period of government possession, operation and control and releasing all claims against the United States based upon Executive Order 9412 or any action taken pursuant to that Order."
Subsequent to the termination of such possession, control and operation, the plaintiff herein filed a motion on April 3, 1944, for leave, by an amended complaint, to make parties defendant the Chicago & Northwestern Railway Company, of which Claude A. Roth is now trustee, and Sperry Products, Incorporated. It is conceded by the plaintiff in argument that any right here relied on to make either the Chicago & Northwestern Railway Company and its trustee or Sperry Products, Incorporated, a party defendant herein depends upon the right to make Lieutenant General Brehon Somervell in his official capacity a defendant.
The contention of the plaintiff is that the Government, having taken possession, control and operation of the carriers pursuant to the Act of August 29, 1916, supra, became subject to the provisions of the Federal Control Act, approved March 21, 1918, 40 Stat. 456, the particular provisions of which relating to the liability of carriers under federal control are set forth in the margin.
It will be recalled that, when the possession and control of railroad carriers were taken pursuant to the Act of August 29, 1916, in the first World War, a Director General was designated for that purpose, and, by orders duly promulgated, actions at law for matters arising out of such operation by him could be brought against him in the same courts and venue that such actions could have been brought against the carriers. It is, therefore, insisted by the plaintiff that the same procedure should be open to him here.
It is insisted, among other things, in opposition to the motions that the Congress, by an Act terminating the control then existing, approved February 28, 1920, 41 Stat. 457,
terminated all legislative authorization respecting the possession, control and operation of carriers theretofore enacted, excepting only, in so far as here material, the power of the President "in time of war to take possession and assume control of any system of transportation and utilize the same," as authorized by the Act of August 29, 1916, supra.
I am of the view that, even if Section 10 of the Federal Control Act, supra, should be construed, as plaintiff insists it should,
as constituting a legislative consent for the Government to be sued respecting the operation of railroad carriers, the possession and control of which have been taken by the Government, that section does not now stand, nor has it been implemented with any order of the President, or any one to whom he has delegated authority to act. Doubtless, if the possession, control and operation of the carriers had extended over a longer period of time in this present emergency, as it did in the last World War, Congress would have made provision, as it did then, to safeguard the rights of third persons injured by government operation. Obviously, however, with the short period here involved, and the commitment by the carriers to assume all liability respecting government operation during such period, the rights of third parties are not jeopardized, and there has been no action by the legislative machinery and implementing executive orders which can be construed as a consent that the United States be sued by third persons respecting such operation.
There is no contention here made by any of the carriers who are parties to this suit that any liability which they may have to the plaintiff respecting the matters here involved is affected by the Government's possession, control and operation, and it is clear from the terms of the arrangement terminating control that they could not successfully do so.
I cannot agree with the contentions made by the plaintiff in connection with the motions here under consideration, ...