Crim v. Louisville & N.R. Co., 5 Div. 745

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J. ANDERSON, C.J. (for the majority).
• Citation: 206 Ala. 110,89 So. 376
• Decision Date: 13 January 1921
• Docket Number: 5 Div. 745
• Parties: CRIM v. LOUISVILLE & N.R.R. CO.

89 So. 376

206 Ala. 110

CRIM
v.
LOUISVILLE & N.R.R. CO.

5 Div. 745

Supreme Court of Alabama

January 13, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Chilton County; Leon McCord, Judge.

Action by Sarah Crim, as administratrix of the estate of her deceased husband, against the Louisville & Nashville Railroad Company for damages for the death of her intestate. Judgment for the defendant, and plaintiff appeals. Affirmed.

Brown, J., dissenting as to result. [89 So. 377]

James K. Barton and W.A. Denson, both of Birmingham, for appellant.

Lawrence F. Gerald, of Clanton, and Jones, Thomas & Jones, of Montgomery, for appellee.

THOMAS, J.

The suit filed August 19, 1918, was by a personal representative for the death of plaintiff's intestate from injury inflicted on February 8, 1918, while discharging his duties as telegraph operator in an office of the transportation department of the Louisville & Nashville Railroad Company.

The judgment entry of date of February 12, 1919, recites that--

"Walker D. Hines, as Director General of Railroads, is substituted for Louisville & Nashville Railroad Company, and notice is ordered issued to Walker D. Hines that he has been substituted as defendant in this cause, and this cause is continued by the defendant."

The judgment of October 14, 1919, recites the striking out the Director General of Railroads as a party defendant against that official's and defendant corporation's due objections and exceptions and the overruling of defendant's several motions to make the Director General a party defendant.

A question for decision concerns the failure of plaintiff to show liability of the sole defendant, and the general affirmative charge given at its request in writing. A. had sued B., and C. was made a party defendant; against the objection of defendant, plaintiff dismissed the suit as to C. After full pleading and proof, the evidence failed to show the liability of B., but that of C.; hence the affirmative charge and the appeal by plaintiff.

As preliminary observations we may say: (1) That there was no cross-appeal and assignment of error by defendant, in whose favor the judgment was rendered; and the question presented is not an attempt to invoke error by appellee without cross-assignment of error for preliminary ruling against it at the trial. Holdsombeck v. Fancher, 112 Ala. 469, 20 So. 519; McLendon v. Stephens, 124 Ala. 505, 508, 26 So. 921; Long v. Campbell, 133 Ala. 353, 32 So. 591. (2) The fact that the party responsible for the death of plaintiff's intestate was originally a party defendant and stricken on plaintiff's motion will not avail appellant, since plaintiff (appellant) invoked the court to the exclusion of the sole party defendant who was guilty of the damnifying act on which the suit rested. Having invoked the court to error by an amendment he could not prove, he must suffer for this error. Talley v. Whitlock, 199 Ala. 28, 73 So. 976; B.R., L. & P. Co. v. Hunt, 200 Ala. 560, 76 So. 918. (3) Nor is this case controlled by the line of cases which hold the lessor of a railroad liable for the negligence of the lessee, since the operation and control of the transportation in question was by operation of law, and not by way of contract. The case made by the instant record and evidence is that, by operation of law the Louisville & Nashville Railroad Company, a corporation, having had its transportation properties (personal and real) taken over by the United States government on or about January 1, 1918, and since then been operated by its Director General of Railroads, while having been so used and operated by the government, primarily in the transportation of troops and munitions of war, its agent (while engaged in the discharge of the duties of his employment by the government) wrongfully killed plaintiff's intestate by shooting him (a co-employee of the government) on February 8, 1918, without fault on the part of defendant corporation or any person for whose acts it was responsible.

Authority would appear to be unnecessary. However, in an action for damages from an improper construction of a railroad culvert, where it appeared that one of the defendants had nothing to do with its construction, the affirmative charge in favor of defendants was justified in the giving (Watts v. A.B. & A.R.R. Co., 179 Ala. 436, 443, 60 So. 861); and in an action for maintaining a nuisance a verdict was held properly directed for defendants as to a count under which there was no proof to sustain an averment that defendants were in control of and operating the sewerage plant of which complaint was made. Murkerson v. Adler, 178 Ala. 622, 625, 59 So. 505. It would appear unnecessary to cite authorities to justify the giving of the affirmative charge for the failure of the evidence to support counts of the complaint held to justify its giving. L. & N.R.R. Co. v. Perkins, 152 Ala. 133, 44 So. 602; L. & N.R.R. Co. v. Davis, 91 Ala. 487, 8 So. 552; Merrill v. Smith, 158 Ala. 186, 48 So. 495; Gulf City Const. Co. v. L. & N.R.R. Co., 121 Ala. 621, 25 So. 579; Tobler v. Pioneer, etc., Co., 166 Ala. 482, 52 So. 86; Hatch v. Varner, 150 Ala. 440, 43 So. 481. Where plaintiff wholly failed to prove material averments of the complaint to which there was a plea of the general issue, defendant is entitled to the general affirmative [89 So. 378] charge. Alexander v. Woodmen of the World, 161 Ala. 561, 49 So. 883; Crutcher v. Memphis, etc., Co., 38 Ala. 579; 12 Ency.Dig.Ala.Rep. p. 398, § 132.

The insistence of appellee is that there was no error in giving the general affirmative charge for the defendant, conceding that the evidence was sufficient to show a cause of action, because the right of action was against Walker D. Hines as Director General of Railroads, and not against the Louisville & Nashville Railroad Company, a corporation being operated by the government at the time of the injury and death of plaintiff's intestate, and because the evidence introduced was insufficient to show a cause of action. What, then, was the authority to maintain a suit under the instant pleading and proof by and against a railroad corporation, the properties of which were being operated by the general government by operation of law? Said suit is founded on a breach of duty arising from and affecting the rights and liabilities of such operation under authority of law--the federal statutes, the proclamations of the President, and said General Orders of the Directors General of Railroads.

Appropriate federal statutes are: Acts of Congress of June 29, 1906, 34 St. pp. 584, 587, § 2 (U.S.Comp.St. § 8569) (24 U.S.Stat.L.c. 104, p. 379; 39 Stat.L.c. 417, pp. 556, 604); Act of Congress August 29, 1916 (U.S.Comp.St. § 1974a); Act of Congress March 21, 1918 (U.S.Comp.St.1918, U.S.Comp.St.Ann.Supp.1919, §§ 3115 3/4ac, 3115 3/4e, 3115 3/4f, 3115 3/4j); proclamations of the President of dates of December 26, 1917, and April 11, 1918 (U.S.Comp.St.1918, pp. 274, 275); and General Orders of the Directors General of Railroads (No. 50, issued October 28, 1918, and No. 50-A, issued January 11, 1919) pertaining to the operation of railroads under federal control. We take judicial knowledge of said General Orders, the fact that respective contracts for compensation and for liability were made by and pursuant to the obligations of law by the Directors General with transportation systems operated under federal control, which were a necessary condition of such operation by the government, and that the government had control of and was operating the transportation properties of the Louisville & Nashville Railroad Company before and at the time of the injury and death of plaintiff's intestate by operation of law, and subject to contract for compensation and liability by obligation of law. Lawrenceburg Roller Mills Co. v. Jones, 204 Ala. 59, 85 So. 719; Webb v. White Eng. Corp., 204 Ala. 429, 85 So. 729; Ex parte Vaughn, 203 Ala. 700, 82 So. 894; Vaughn v. State, 17 Ala.App. 35, 81 So. 417; McDougal v. L. & N.R.R. Co., 17 Ala.App. 468, 85 So. 880; W.U.T. Co. v. Glover, 17 Ala.App. 374, 86 So. 154. The General Orders of William G. McAdoo, as Director General of Railroads, from 1 to 43, inclusive, are to be found as an appendix to 2 Roberts Federal Liabilities of Carriers, and Nos. 50 and 50-A are set out in Vaughn v. State, supra, pp. 424, 425. Facts judicially known need not be pleaded. Perryman v. Greenville, 51 Ala. 507.

The power of Congress to take over physical control and operation of transportation properties in this country during the war, and to provide and make compensation therefor and assume liability therein, is found in article 1, § 8, cl. 3, of the federal Constitution, vesting the power "To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes" (Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23; Pensacola Tel. Co. v. West, etc., T. Co., 96 U.S. 1, 8, 24 L.Ed. 708; Chicago & N.W.R. Co. v. Fuller, 17 Wall. 560, 568, 21 L.Ed. 710; Inter. Com. Comm. v. Goodrich Transit Co., 224 U.S. 194, 32 Sup.Ct. 436, 56 L.Ed. 729; Reid v. Colorado, 187 U.S. 137, 139, 147, 23 Sup.Ct. 92, 47 L.Ed. 108; Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 241, 242, 20 Sup.Ct. 96, 44 L.Ed. 136), rather than in the taxing power to "provide for the common defense and general welfare of the United States" (article 1, § 8, cl. 1, Const. U.S.; United States v. Boyer [D.C.] 85 F. 425; Story's Const. §§ 907, 908).

The regulatory power was given expression by Congress in the "Interstate Commerce Act" entitled "An Act to Regulate Commerce," approved February 4, 1887 (24 U.S.Stat.L.c. 104, pp. 379-387), and the amendment thereto of June 29, 1906 (34 U.S.Stat.L.c. 3591, § 2, pp. 584, 587 [U.S.Comp.St. § 8569]) as follows:

"That in time of war or threatened war preference and precedence shall, upon the demand of the President of the

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