Davis v. O'Hara/Opinion of the Court
September 13, 1919, while employed by the Director General of Railroads in the operation of a railroad under federal control, plaintiff was injured by explosion of a blasting cap. The injury occurred at Council Bluffs, Iowa, where he then resided. He brought this action in the district court of Douglas county, Nebraska, to recover damages for his injuries. His petition did not show where the injury occurred or where he lived when injured. The Director General appeared specially for the purpose of objecting to the jurisdiction of the court 'over the person of the defendant and over the subject matter of this action,' and moved to quash the summons; the grounds alleged were 'that General Orders Nos. 50, 50-A, 18, 18-A, and 18-B,  issued by the Director General, * * * provide that all suits against the Director General of Railroads, as authorized by General Order No. 50-A, must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose'; that plaintiff, at the time of the accrual of the cause of action, did not reside in Douglas county, Nebraska, and that the cause of action, did not arise there. Plaintiff did not deny the allegations on which the motion was based. The district court overruled the motion without more. The defendant answered setting up the same objection to jurisdiction and his defenses on the merits. Later, plaintiff filed an amended petition; and to that defendant filed answer, in which he again asserted his objection to jurisdiction. At the trial, after the evidence was heard, the court upon its own motion instructed the jury to return a verdict for defendant; and judgment was entered in his favor. The plaintiff made a motion for a new trial which was denied. He then appealed to the Supreme Court. Defendant's objection to the jurisdiction was urged by brief filed by leave of court specially given. But the question was not decided, because defendant had not taken a cross-appeal. O'Hara v. Hines, 108 Neb. 74, 81, 187 N. W. 643. The judgment of the district court was reversed on the merits. At the new trial plaintiff testified that his injuries occurred at Council Bluffs, Iowa, and that he resided there when he was injured. The defendant, by appropriate objections and motions made at the time of impaneling the jury, at the close of plaintiff's evidence, and at the close of all the evidence, insisted upon its objection to the jurisdiction of the court, but all were overruled. There was a verdict and judgment for plaintiff. Defendant appealed to the Supreme Court. A syllabus (by the court) contains the following:

'Where the Director General specially appears to object to      the jurisdiction of the court over his person, and at the      same time challenges the jurisdiction of the court over the      subject-matter of the controversy, as to which the motion is      not well founded, this is a voluntary appearance equivalent      to the service of summons, and gives the court jurisdiction      over the person of such officer.' O'Hara v. Davis, 109 Neb.      615, 192 N. W. 215.

The judgment appealed from was affirmed.

Section 10 of the Federal Control Act, 40 Stat. 456 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 3/4 j), provides that:

'Carriers while under federal control shall be subject to all      laws and liabilities as common carriers * * * except in so      far as may be inconsistent with * * * any order of the      President. * * *'

The General Orders are in legal effect orders of the President, and are valid.  This is an action against the United States. The railroads were taken over and operated by it in its sovereign capacity, and it will not be held to have waived any sovereign right or privilege unless it has plainly done so. Dupont de Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.C.t. 364, 68 L. Ed. 788; Director General v. Kastenbaum, 263 U.S. 25, 27, 44 S.C.t. 52, 68 L. Ed. 146; Alabama, etc., Ry. Co. v. Journey, 257 U.S. 111, 114, 42 S.C.t. 6, 66 L. Ed. 154; Missouri Pacific R. Co. v. Ault, 256 U.S. 554, 562, 564, 41 S.C.t. 593, 65 L. Ed. 1087. Its immunity from suit was waived only to the extent indicated by the statute and orders of the Director General.

Against his objection defendant could not be sued on plaintiff's claim in the Nebraska court. Alabama, etc., Ry. Co. v. Journey, supra. This court is not bound by the decision of the state court that defendant waived his federal right under the act and the orders of the Director General, and it may determine for itself whether he sufficiently asserted and insisted upon that right. Davis v. Wechsler, 263 U.S. 22, 24, 44 S.C.t. 13, 68 L. Ed. 143; Railroad Commission v. Eastern Texas R. R., 264 U.S. 79, 86, 44 S.C.t. 247, 68 L. Ed. 569; Georgia Ry. Co. v. Decatur, 262 U.S. 432, 438, 43 S.C.t. 613, 67 L. Ed. 1065; Creswill v. Knights of Pythias, 225 U.S. 246, 261, 32 S.C.t. 822, 56 L. Ed. 1074.

Defendant's special appearance and motion did not amount to an objection to the jurisdiction over the subject-matter; that is, it did not raise the question whether, considering the nature of the cause of action asserted and the relief prayed by plaintiff, the court had power to adjudicate concerning the subject-matter of the class of cases to which plaintiff's claim belonged. Cooper v. Reynolds, 10 Wall. 308, 316, 19 L. Ed. 931; Reynolds v. Stockton, 140 U.S. 254, 268, 11 S.C.t. 773, 35 L. Ed. 464. The stated purpose of the special appearance was broader than the grounds alleged and, in so far as it related to the subject-matter, was not carried into effect. There was nothing in the moving papers to suggest that the Nebraska court had no jurisdiction to try and determine actions, founded on negligence, to recover damages for personal injuries suffered by railway employees while engaged in the performance of their work. Undoubtedly, the district court of Douglas county would have had jurisdiction if the accident happened in that county or district, or if plaintiff resided there at the time he was injured. The General Orders on which defendant's motion rested did not relate to jurisdiction of the subject-matter; and the Supreme Court of Nebraska so held. The substance of the objection stated and the grounds alleged should control, rather than the declaration of purpose. See Bankers' Life Insurance Co. v. Robbins, 59 Neb. 170, 173, 80 N. W. 484; Omaha National Bank v. Farmers' & Merchants' Bank, 45 Neb. 29, 32, 63 N. W. 128; Perrine v. Knights Templar (rehearing) 71 Neb. 273, 275, 101 N. W. 1017. And, even if the motion amounted to an objection to jurisdiction over subject-matter, it cannot reasonably be held that it gave the court jurisdiction. Under the statutes and practice in Nebraska, defendant was not required to appear specially to object to jurisdiction over his person. Where, as in this case, the defects do not appear on the face of the petition, objection to jurisdiction over the person of the defendant and over the subject-matter of the action may be taken by answer setting up defenses on the merits, without or after prior objection by special appearance and motion. Section 8612, Compiled Statutes 1922. Hurlburt v. Palmer, 39 Neb. 158, 178, 179, 57 N. W. 1019; Kyd v. Exchange Bank of Cortland, 56 Neb. 557, 561, 76 N. W. 1058; Baker v. Union Stockyards Nat. Bank, 63 Neb. 801, 803, 89 N. W. 269, 93 Am. St. Rep. 484; Templin v. Kimsey, 74 Neb. 614, 105 N. W. 89. And the rule that objections to jurisdiction over the person are waived by general appearance does not apply. It follows that, in such cases, there is no reason for holding that an unfounded objection to jurisdiction over the subject-matter, in a special appearance and motion to quash the summons, waives objections to jurisdiction over the person. We hold that defendant did not by his motion waive his right to immunity from suit on plaintiff's claim in the Nebraska court or voluntarily appear and give that court jurisdiction.

As additional reasons for its conclusion, the Supreme Court said that the special appearance and motion to quash the summons were properly overruled, because there was no evidence to support the motion; that no objection was made during the first trial to the jurisdiction of the court, and that no motion for rehearing was made in that court after the filing of its opinion on the first appeal, 'and the former decision of the court has become the law of the case.'

The facts on which the defendant's motion was based were not denied by plaintiff. The order of the district court states that 'being fully advised in the premises, the court does overrule said special appearance. * * *' The order overruling the motion was made March 13, 1920, some time before the decisions of this court which declared the validity and effect of the general orders on which plaintiff's motion was based. Missouri Pacific R. Co. v. Ault, supra, was decided June 1, 1921. Alabama, etc., Ry. Co. v. Journey, supra, was decided November 7, 1921. There had been a number of decisions holding General Orders 18 and 18-A invalid.  The record does not show whether the district court followed these decisions, or, as suggested in the opinion of the Supreme Court, based its ruling on a lack of evidence to support the motion. There was no issue as to the facts on which defendant's motion was based, and it could not reasonably be held that he was bound to bring forward evidence to establish statements consistent with the allegations of the petition, and which had not been questioned by plaintiff. Notwithstanding its reference to the matter, the Supreme Court, as we read its decision, did not hold that defendant's failure at the first trial to insist that the district court again rule on the objection to jurisdiction operated to deprive him of the right to do so at the second trial. The objection was well pleaded as a defense in accordance with the Nebraska practice. There is no reason why a defense pleaded, but not urged at an earlier trial, may not be insisted upon at a new trial. See Moulor v. American Life Ins. Co., 111 U.S. 335, 337, 4 S.C.t. 466, 28 L. Ed. 447. The ruling that the former decision of the state court became the law of the case does not affect the power of this court to re-examine the question. Messinger v. Anderson, 225 U.S. 436, 444, 32 S.C.t. 739, 56 L. Ed. 1152; Grays Harbor Co. v. Coats-Fordney, 243 U.S. 251, 257, 37 S.C.t. 295, 61 L. Ed. 702; Georgia Ry. Co. v. Decatur, supra, 437 (43 S.C.t. 613).

It must be held that defendant plainly asserted and reasonably insisted upon his immunity from suit on plaintiff's claim in the Nebraska court under section 10 of the Federal Control Act and the orders of the Director General. His objection to the jurisdiction should have been sustained. 

Notes