Central of Georgia Ry. Co. v. Camp Hill Trading Co.

• Decision Date: 26 October 1922
• Docket Number: 5 Div. 833.
• Citation: 94 So. 350,208 Ala. 315
• Parties: CENTRAL OF GEORGIA RY. CO. ET AL. v. CAMP HILL TRADING CO.
• Court: Alabama Supreme Court

94 So. 350

208 Ala. 315

CENTRAL OF GEORGIA RY. CO. ET AL. v. CAMP HILL TRADING CO.

5 Div. 833.

Supreme Court of Alabama

October 26, 1922

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

Action by the Camp Hill Trading Company against the St. Louis-San Francisco Railway Company, the Central of Georgia Railway Company, and James C. Davis, as Director General, etc., for damages. From a judgment for plaintiff against the Central of Georgia Railway Company and the Director General, said defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Barnes & Walker, of Opelika, for appellants.

James W. Strother, of Dadeville, for appellee.

McCLELLAN J.

The appellee, a partnership, sued the St. Louis-San Francisco Railroad Company, Central of Georgia Railway Company, and John Barton Payne, as Director General of Railroads. The suit was commenced on February 23, 1921, after government control and operation of railroads had terminated. Three counts, in code form, were employed to state a cause of action ex contractu (N. C. & St. L. v. Parker, 123 Ala. 683 27 So. 323; Code form 15, Civil Code, p. 1197), for the delivery of a mule in an injured condition, the animal dying some days after delivery at destination. Subsequently Payne, as Director General, was eliminated, and "James C. Davis as Director General of Railroads and Federal Agent liquidating claims growing out of government operation" of the two railways named as codefendants with the Director General, was substituted. The receipt, in Missouri, for transportation of this mule, along with 20 others in the same car, and their delivery in Alabama took place in January 1920, at a time when these railroads were being operated exclusively by the United States. For breaches of contract during governmental control and operation, and for tortious wrongs thereby suffered, the Director General, not the railroad corporation, was alone liable. Missouri Pacific v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087; Charlton v. A. G. S., 206 Ala. 341, 89 So. 710, among others in that line.

These railway companies, sought to be made codefendants with the Director General, should have been eliminated as parties defendant. The complaint in two, if not in all three, counts averred that these railway companies and the Director General contractually, jointly, undertook "as common carriers" to receive and transport this car of mules. These material features of the counts were not sustained in any degree by the evidence. Indeed, the exclusive governmental control and operation of these railways prevented the existence of any such character of evidence. Having averred a joint contractual undertaking, and failing in any degree to support such material allegation, the plaintiff (appellee) was not entitled to recover against any of the defendants, the variance being fatal. Garrison v Hawkins Lumber Co., 111 Ala. 308, 311, 20 So. 427; Harris v. Sanders, 186 Ala. 350, 353, 65 So....