Atlanta, B. & A.R. Co. v. McGill

• Decision Date: 14 October 1915
• Docket Number: 707
• Citation: 194 Ala. 186,69 So. 874
• Parties: ATLANTA, B. & A.R. CO. et al. v. McGILL.
• Court: Alabama Supreme Court

69 So. 874

194 Ala. 186

ATLANTA, B. & A.R. CO. et al. v. McGILL.

No. 707

Supreme Court of Alabama

October 14, 1915

Appeal from Circuit Court, Randolph County; S.L. Brewer, Judge.

Action by J.P. McGill against the Atlanta, Birmingham & Atlantic Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded.

Stell Blake, of Roanoke, for appellants.

R.J Hooten, of Roanoke, for appellee.

MAYFIELD J.

This is the second appeal in this case. A statement of the case may be found in the report of the former appeal. 184 Ala. 562, 63 So. 1009. The complaint was amended on the second trial, by suing H.N. Atkinson, as receiver, and by adding a count charging that he, as receiver, was operating the railroad at the time of the injury complained of, thus alleging that he was sued in a representative capacity, and not as an individual.

It was made to appear that pending this suit Atkinson had resigned or had been removed, as the receiver, and that the federal court in Georgia which originally appointed the receiver had appointed one E.T. Lamb, as receiver. The court then allowed the plaintiff to amend by striking out Atkinson as receiver and inserting in lieu thereof the name of Lamb as receiver. The defendants separately and severally objected to each of these amendments; and, their objections being overruled, they each separately filed pleas, not guilty, and the statute of limitations of one year. The trial resulted in a verdict and judgment for plaintiff against both defendants, from which they appeal, and sever in the assignment of errors.

There was no error in allowing the amendments of the complaint; in fact, under the circumstances, the amendments were proper as pointed out before on the former trial.

There was, however, reversible error in refusing charge 5 requested by the defendant railroad company. That charge was as follows:

"If the jury believe from all the evidence that at the time and occasion of the injury complained of the Atlanta Birmingham & Atlantic Railroad Company were not, through its servants, operating the train, and that the train was being operated by a receiver, you cannot find the Atlanta, Birmingham & Atlantic Railroad Company liable on either count of the complaint as amended."

The charge undoubtedly asserted a correct proposition of law, and was applicable to the facts and issues on trial; and its refusal was necessarily prejudicial error. In fact, the railroad company would have been entitled to the affirmative charge had it separately requested such charge, because the undisputed evidence showed conclusively that at the time or the injury the corporation was not operating the road as alleged, but it was then being operated by the federal court through its receiver, and that the railroad corporation was not liable for any negligence which the evidence tended to show caused the injury complained of.

It would be a great injustice for the law, acting through its courts and receiver, to deprive the...