Whether this action was brought before or after the government returned the railroads to their owners is, in our opinion, of no consequence. The fact is that plaintiff's injury was suffered while the government was operating the railroad on which it occurred, and the suit, under the ruling of the Supreme Court of the United States, could be maintained against the Director General only, or, after the act of Congress of February 28, 1920, against the Agent designated by the President for that purpose. The question here is whether an action brought in the first place against the railroad alone could by amendment be converted into an action against the Director General, or the agent who succeeded him, as sole party defendant. The decisions of this court from the beginning are clear, to the effect that plaintiff's (appellant's) contention cannot be sustained. Appellant calls our special attention to the case of Ætna Mills v. Davis (Mass.) 136 N.E. 380. In that case the Supreme Judicial Court of Massachusetts hold differently. But that decision is rested upon the practice act of that state. In the case at bar, however much it may be regretted that appellant has lost the opportunity to have her claim tried upon its merits, the result has been brought about by her failure to sue the responsible defendant while yet there was opportunity to bring such suit, by the decision of the Supreme Court of the United States in Mo. Pac. R. R. Co. v. Ault, 256 U.S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087, and by a long line of decisions by this court, from which we feel that we have no satisfactory reason for departing at this time.
Application overruled.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur. *Page 90