Currie v. Louisville & N.R. Co.

• Citation: 206 Ala. 402,90 So. 313
• Decision Date: 09 June 1921
• Docket Number: 3 Div. 508
• Parties: CURRIE v. LOUISVILLE & N.R. CO.
• Court: Supreme Court of Alabama

90 So. 313

206 Ala. 402

CURRIE v. LOUISVILLE & N.R. CO.

3 Div. 508

Supreme Court of Alabama

June 9, 1921

Rehearing Granted Oct. 6, 1921

Appeal from Circuit Court, Escambia County; A.E. Gamble, Judge.

Action by Carrie K. Currie, doing business as the Atmore Milling &amp Elevator Company, against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

H.C Rankin and Leon G. Brooks, both of Brewton, for appellant.

Hamilton Page & Caffey, of Brewton, and George W. Jones, of Montgomery, for appellee.

MILLER J.

This suit was filed by Carrie K. Currie, doing business as the Atmore Milling & Elevator Company, against the Louisville & Nashville Railroad Company, a corporation.

The cause of action arose when the United States government had control of and was operating the railroad.

The defendant filed plea in substance that when the injury occurred its railroad and train were in the exclusive possession and control of the United States government, operated for the government by the Director General of Railroads under an act of Congress (U.S.Comp.St. § 1974a), that, before the suit was filed, the defendant's railroad had been returned to it by virtue of the act of Congress of February 28, 1920, known as the Transportation Act (41 Stat. 456); that the President under said act designated John Barton Payne as the Agent of the Government who might be sued for causes of action arising during the federal control of the railroad; that this suit should have been commenced against him, and not this defendant.

The court overruled demurrers of plaintiff to this plea. In this there was no error.

When the cause of action arose and the injury occurred the railroad and train which caused the alleged injury were in the exclusive possession, control, and management of the United States government under an act of Congress. The federal government alone was subject to liability. Its designated agent was the only proper party defendant. The Louisville & Nashville Railroad Company, defendant, was not liable for the injury. Wiley Charlton v. A.G.S.R.R. Co., 89 So. 710; Mo. P. R.R. Co. v. Ault, 256 U.S. 554, 41 Sup.Ct. 593, 65 L.Ed. 1087; Candidate v. West. U. Tel. Co., 85 So. 10.

When this railroad was returned to the defendant by the federal government under act of Congress of February 28, 1920, as the act provided, the President designated John Barton Payne as the agent to be sued on all causes of action arising during the time of the federal control of railroads. This suit should have been commenced against him at the time it was filed. Wiley Charlton v. A.G.S.R.R. Co., 89 So. 710; Mo. P. R.R. Co. v. Ault, 256 U.S. 554, 41 Sup.Ct. 593, 65 L.Ed. 1087; section 206 (a), Transportation Act of February 28, 1920, of Congress.

When the court overruled the demurrers to this plea, the plaintiff filed written motion to substitute as sole party defendant to this cause John Barton Payne, the officer or agent of the government designated by the President against whom this suit might have been filed. This motion was refused by the court. Our amendment statutes are liberal; but no amendment striking out the sole party defendant and substituting another is permissible. There cannot be an entire change of parties--plaintiff or defendant--by amendment.

After the termination of federal control, the act of Congress directs suits to be brought against the agent designated by the President on actions arising during the government's control and in suits filed before the act of Congress, pending when the federal control terminated, this designated agent may be substituted. Section 206 of Transportation Act of Congress.

This cause of action arose in April, 1919, during federal...