Creighton v. Air Nitrates Corporation

Decision Date26 October 1922
Docket Number8 Div. 474.
Citation208 Ala. 330,94 So. 356
PartiesCREIGHTON v. AIR NITRATES CORPORATION.
CourtAlabama Supreme Court

Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.

Action for work and labor by Robert W. Creighton against Air Nitrates Corporation. After adverse ruling on the pleadings plaintiff took a nonsuit and appeals. Affirmed.

William L. Chenault, of Russellville, for appellant.

Andrews & Peach, of Sheffield, for appellee.

MILLER J.

Robert W. Creighton, the appellant, sues the Air Nitrates Corporation, a corporation, the appellee, under the common counts, for work and labor done by him for it.

The defendant filed 13 pleas; the plaintiff demurred to each these demurrers were all overruled by the court; the plaintiff took a nonsuit on account of the adverse rulings of the court to him on the pleadings. The court granted the nonsuit, entered judgment dismissing the case and taxing plaintiff with the court cost. This appeal is prosecuted from that judgment by the plaintiff; and the judgment of the court sustaining the demurrers to each plea are the errors assigned. Two of the pleas, 1a and 2a, are the general issue. The other 11 pleas are special. These special pleas challenge the jurisdiction of the court, and are in bar of the prosecution of the suit. They aver in various forms and terms that plaintiff was an employé of the United States, and not of the defendant; that the defendant was acting solely and purely as agent of the United States for the purpose of carrying out a governmental function; it had no interest in the plant or quarry where plaintiff worked; the wages and salaries were paid the employés by the United States through the defendant as its agent. Of all these pleas, that one lettered (d) states fairly the special defense as follows:

"(d) The suit in this case is in effect a suit against the United States, and is brought without its consent, and this court is without jurisdiction to determine the same for the reason that the work and labor alleged to have been done for the defendant, and the service alleged to have been rendered for it, were rendered in and about the construction of a nitrate plant for the production of nitrates or other products needed for munitions of war and useful in the manufacture of fertilizer and other useful products, and the said quarry was being operated under an act of Congress of June 3, 1916, which is as follows: 'The President of the United States is hereby authorized and empowered to make, or cause to be made, such investigation as in his judgment is necessary to determine the best, cheapest, and most available means for the production of nitrates and other products for munitions of war and useful in the manufacture of fertilizers and other useful products by water power or any other power as in his judgment is the best and cheapest to use; and is also hereby authorized and empowered to designate for the exclusive use of the United States, if in his judgment such means is best and cheapest, such site or sites, upon any navigable or nonnavigable river or rivers or upon the public lands, as in his opinion will be necessary for carrying out the purposes of this act; and is further authorized to construct, maintain and operate, at or on any site or sites so designated, dams, locks, improvements to navigation, power houses and other plants and equipment or other means than water power, as in his judgment is the best and cheapest necessary or convenient for the generation of electrical or other power and for the production of nitrates or other products needed for munitions of war and useful in the manufacture of fertilizers and other useful products. The President is authorized to lease, purchase, or acquire by condemnation, gift, grant, or devise, such lands and rights of way as may be necessary for the construction and operation of said plant, and to take from any lands of the United States, or to purchase or acquire by condemnation, materials minerals and processes, patented or otherwise, necessary for the construction and operation of such plants and for the manufacture of such products. The products of such plants shall be used by the President for military and naval purposes to the extent that he may deem necessary, and any surplus which he shall determine is not required shall be sold and disposed of by him under such regulations as he may prescribe. The President is hereby authorized and empowered to employ such officers, agents, or agencies as may in his discretion be necessary to enable him to carry out the purpose herein specified, and to authorize and require such officers, agents, or agencies to perform any and all of the duties imposed upon him by the provisions hereof. The sum of twenty million dollars is hereby appropriated, out of any moneys in the treasury, not otherwise appropriated, available until expended, to enable the President of the United States to carry out the purposes herein provided for. The plant or plants provided for under this act shall be constructed and operated solely by the government and not in conjunction with any other industry or enterprise carried on by private capital.' Under the authority of the act above set out, the President of the United States designated the defendant, Air Nitrates Corporation, as the agent, or agency necessary to enable him to carry out the purpose specified in the said act, at the cost of the United States, and defendant alleges services rendered by the plaintiff in this case were rendered to a government agency in the carrying out of its obligations under such designations of the President and any obligation to pay for such services was and is the obligation of the United States."

The federal Employés' Compensation Commission has decided, under "the agency contract" made with the defendant for the construction of a plant at Muscle Shoals, Ala., that the employés of the corporation itself engaged in the work at Muscle Shoals are civil employés of the United States, and entitled to the benefits of the Compensation Act. A copy of the order and decision appears in Webb v. White Engineering Corp., 204 Ala. 429, 85 So. 729.

This is a suit ex contractu. The plaintiff avers in substance that the work was done by him for the defendant, under an express or implied contract. The defendant seeks to avoid liability by averring it was acting as agent for the United States in making the contract; that it was simply an agent in the transaction, and the United States was principal; and that its principal is not subject to be sued in this court. We find no averment in any plea that the stock of the defendant corporation is owned in whole or in part by the United States. We find no averment that the defendant's property is owned by the United States. It does not appear to whom the defendant's corporation belongs. The defendant is a corporation; it is a separate entity; and we do not know who...

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4 cases
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Alabama Supreme Court
    • 1 Mayo 1930
    ... ... of wrong, as if they were acting as agents of a private ... corporation. The wrong is that of the officers personally as ... well as that of their principal. The officers ... 14 of the Constitution of 1901." ... In ... Creighton v. Air Nitrates Corporation, 208 Ala. 330, ... 94 So. 356, 358, the action was for work done and ... ...
  • Metropolitan Life Ins. Co. v. Carter
    • United States
    • Alabama Supreme Court
    • 23 Octubre 1924
    ... ... Bradford, 200 Ala. 308, 76 So. 74; Stoudemire ... v. Davis, 208 Ala. 592, 94 So. 498; Creighton v. Air ... Nitrates Corp., 208 Ala. 330, 94 So. 356. However, the ... count avers facts from ... "We are prepared to admit that there can be no separate ... recovery of a corporation for opprobrious words and epithets ... used by a servant or agent of the corporation in committing ... ...
  • Lathrop Lumber Co. v. Fitts
    • United States
    • Alabama Supreme Court
    • 26 Octubre 1922
    ... ... Lathrop Lumber Company, a corporation. The court overruled ... demurrers to the bill as amended, and this appeal results ... The ... ...
  • Louisville & N.R. Co. v. A.N. Chappell & Co.
    • United States
    • Alabama Court of Appeals
    • 20 Abril 1926
    ... ... Cornelius v. Cent ... of Ga. R.R., 13 Ala.App. 533, 69 So. 331; Creighton ... v. Air Nitrates Corp., 208 Ala. 330, 94 So. 356 ... We do ... not think appellee ... ...

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