Heidtmueller v. Louisville & N.R. Co.

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 736.
• Citation: 98 So. 792,210 Ala. 538
• Court: Alabama Supreme Court
• Parties: HEIDTMUELLER v. LOUISVILLE & N. R. CO. ET AL.

98 So. 792

210 Ala. 538

HEIDTMUELLER v. LOUISVILLE & N. R. CO. ET AL.

6 Div. 736.

Supreme Court of Alabama

January 17, 1924

Appeal from Circuit Court, Cullman County; Robert C. Brickell Judge.

Action for damages by Eddie Heidtmueller, as administrator of the estate of Theodore Heidtmueller, deceased, against the Louisville & Nashville Railroad Company, J. D. Jessie, and James C. Davis, as Agent under the Transportation Act (U. S Comp. St. Ann. Supp. 1923, § 1007 1/4 et seq.). From a judgment for defendant, plaintiff appeals. Affirmed.

See also, 98 So. 791.

Paine Denson, of Cullman, for appellant.

Eyster & Eyster, of Albany, and A. A. Griffith, of Cullman, for appellees.

THOMAS J.

The first appeal in this case is reported as L. & N. R. Co v. Heidtmueller, 206 Ala. 29, 89 So. 191. Each count of the complaint as originally filed and as amended sought to recover punitive damages under section 2486 of the Code of 1907. Alabama Power Co. v. Stogner, 208 Ala. 666, 95 So. 151.

After the case was reversed and remanded to the circuit court, there was an attempt to conform to the holding in Mo. Pac. R. R. Co. v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087. On motion of the railroad company the case was dismissed as to it, and James C. Davis, as Agent of the United States, was, without objection, substituted as a party defendant. As such he appeared, filed demurrer, and the case was continued for that term of the circuit court.

It should be stated, of the original status as to parties defendant, that they were Louisville & Nashville Railroad Company, a corporation, and J. D. Jessie, the engineer in charge of its locomotive running into or against plaintiff's intestate; and each of said parties filed demurrer to the complaint. On December 28, 1918, the motion and notice of defendant Louisville & Nashville Railroad Company's attorneys was to the effect that under General Order No. 50 it would substitute "W. G. McAdoo as Director General of Railroads as a party defendant for and in the place of the Louisville & Nashville Railroad Company as a party defendant and to dismiss said cause as against the said Louisville & Nashville Railroad Company as a defendant;" and on February 13 the motion was made (by Louisville & Nashville Railroad Company) to substitute Walker D. Hines, as Director General, etc., which was overruled on February 14, 1919. Additional demurrers were filed by defendants Louisville & Nashville Railroad Company and J. D. Jessie on the same day, and sustained to some counts of the complaint and overruled as to other counts. Pleas were filed, and demurrer sustained thereto. The first trial resulted in verdict and judgment for plaintiff, appeal, reversal, and remandment of the case January 13, and the application for a rehearing was denied on May 16, 1921.

At the July term, 1921, of the court, the Louisville & Nashville Railroad Company, having withdrawn all its pleadings, filed "motion to dismiss this suit as to it," and that motion was "granted, and said cause dismissed as to the defendant Louisville & Nashville Railroad Company, and plaintiff excepts. Thereupon plaintiff amends his complaint by adding James Davis, as Agent of the United States, etc., as a party defendant; and the cause was continued by the plaintiff." No assignment of error challenges the action of the trial court in granting the motion to dismiss the suit as to Louisville & Nashville Railroad Company.

Thereafter the defendants shown by the record proper were "James Davis, Agent, under Transportation Act, etc., and J. D. Jessie." On January 3, 1922, said Davis, as Agent, moved the court to require plaintiff to elect between two causes pending, and claiming damages for the same injury, between the same parties, which motion was overruled; and demurrers to several counts of the complaint as amended were sustained. Thereupon the judgment entry of date January 4, 1923, recites:

"Plaintiff amends complaint by striking out J. D. Jessie and by adding counts E and F. Thereupon defendant files demurrers to the complaint as last amended, which said demurrers being submitted to the court, and duly considered and understood by the court, it is ordered and adjudged by the court that said demurrers be and hereby are sustained. And, the plaintiff declining to plead further, it is considered and adjudged by the court, that judgment be and hereby is rendered for the defendant in this cause."

Wherefore the appeal by plaintiff.

The cases of James v. Davis, Director General, 209 Ala 87, 95 So. 346, Charlton v. A. G. S. R. Co., 206 Ala. 341, 89 So. 710, and Currie v. L. & N. R. Co., 206 Ala. 402, 90 So. 313, 19 A. L. R. 675, declare that the railroad is not suable for injuries caused during federal control, and that joining the government Agent as a party defendant in such action makes the complaint demurrable as a change of parties. Petition for wirt of certiorari was denied by the Supreme Court of the United States in the case of James v. Davis, as Agent (May 21, 1923) 262 U.S. 752, 43 S.Ct. 701, 67 L.Ed. 661. See, also, Watson v. B. B. R. Co., 209 Ala. 413, 96 So. 257. However, the record shows that after the last amendment of the complaint, striking therefrom the codefendant Jessie and adding counts E. and F, Davis, as Agent, defendant filed demurrers thereto without objecting to an entire change of parties. And it was these demurrers that were sustained. Plaintiff declined to plead further, and judgment was rendered...