Louisville & N. R. Co. v. Holmes

• Decision Date: 30 June 1921
• Docket Number: 8 Div. 343
• Citation: 89 So. 610,206 Ala. 304
• Parties: LOUISVILLE & N.R. CO. v. HOLMES.
• Court: Alabama Supreme Court

89 So. 610

206 Ala. 304

LOUISVILLE & N.R. CO. v. HOLMES.

8 Div. 343

Supreme Court of Alabama

June 30, 1921

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

Bill by the Louisville & Nashville Railroad Company against Pearl F Holmes to enjoin the prosecution of suits in Alabama and Georgia alleged to have grown out of the same accident. From a decree dissolving a temporary injunction dismissing the bill, complainant appeals. Affirmed.

See also, 205 Ala. 47, 87 So. 574.

Thomas J., dissenting.

Eyster & Eyster, of Albany, for appellant.

Callahan & Harris, of Decatur, for appellee.

PER CURIAM.

The decisions in Missouri Pacific R. Co. et al. v. Ault (No. 252, June 1, 1921), 256 U.S. 554, 41 Sup.Ct. 593, 65 L.Ed. 1087, and Charlton v. A.G.S., 89 So. 710 demonstrate that appellant had a complete and adequate remedy at law.

The decree of the circuit court, in equity, is affirmed.

Affirmed.

ANDERSON, C.J., and McCLELLAN, SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., concur.

THOMAS J. (dissenting).

The appeal is from a decree dissolving injunction, sustaining demurrers, and dismissing the bill of the Louisville & Nashville Railroad Company v. Pearl F. Holmes, the plaintiff in suits filed in Georgia and Alabama, respectively, for one alleged injury occurring in this state.

The suit in the superior court of Fulton county, Ga., filed February 19, 1918, was returnable May 6th of that year. That in the circuit court of Morgan county, Ala., was of date June 26, 1918, and judgment therein for plaintiff was affirmed by this court on November 25, 1920. L. & N.R. Co. v. Holmes, 205 Ala. 47, 87 So. 574.

The instant bill, by the sole defendant in said suits against the plaintiff therein, was filed on January 28, 1919. The motion to dissolve, filed March 4, 1919, was sustained on January 3, 1921. Federal control was terminated by the act of February 28, 1920, which extended the time for suit "not later than two years from the date of the passage" of the act. Moon v. Hines, 87 So. 603, 604, 13 A.L.R. 1020; 41 Stat. of U.S.1919-20, § 206(a), p. 461. Federal Control Transportation Act was approved March 21, 1918 (U.S.Comp.St.1918, §§ 3115 3/4a-3115 3/4p).

It is averred that plaintiff's injury was sustained on January 28, 1918, in the state of Alabama, where suit was instituted, where plaintiff and all the witnesses resided and were amendable to process; that a difference in the rules of law in Alabama and Georgia, as regards contributory negligence defeating a recovery, obtains and is pleaded (Weaver v. Ala. Gt. Sou. Ry., 200 Ala. 432, 76 So. 364); that the maintaining of two suits for the same injury by respondent (plaintiff at law) is contrary to the applicable general orders of the Director General of Railroads. As to this, the averments of the bill are:

That, in violation of general orders of the Director General of Railroads, "the respondent continues to maintain her case in the superior court of Fulton county, Ga., and has instituted a case for the recovery of same damages as alleged in her Georgia declaration in the circuit court of Morgan county; *** that said act of the respondent in maintaining the *** suit in Georgia causes this complainant and its successors undue harassment and subjects it to the payment of court costs and other expenses;" that "said Pearl F. Holmes having knowledge of the facts herein averred and for the purpose of obtaining an unfair advantage over the Louisville & Nashville Railroad Company, which she was not entitled to receive under the laws of Alabama, and for the purpose of embarrassing it, and obtaining attendance of its witnesses upon a court, and for the purpose of causing it unnecessary and undue expense, caused said suit to be instituted in the said superior court of Fulton county, in the state of Georgia, and unless restrained by a proper order of this court will proceed with the said suit, and obtain an unfair advantage, which she is not lawfully entitled to receive under the laws of the state of Alabama and under the declaration of the President of the United States and acts of Congress of the United States."

The prayer of the bill is that--

Respondent be required "to dismiss the case which she has pending in the superior court of Fulton county, Ga., and to pay all cost in said case before being allowed to proceed with the prosecution of her case against the complainant now pending in the circuit court of Morgan county, and *** before being allowed to proceed with the prosecution of her case which she now has pending on the law side of the circuit court of Morgan county," Ala.

A general statement of public policy underlying the decisions touching suits against the Sovereign is that it may prescribe the terms and conditions on which it consents or grants the right to be sued, and the conditions on and the manner in which suit shall be conducted, and modify such conditions grant or consent, or may withdraw its consent or conditions whenever it is supposed that justice to the public requires. Moon v. Hines, supra; Elmore v. Fields, 153 Ala. 345, 45 So. 66, 127 Am.St.Rep. 31; U.S. v. Clarke, 33 U.S. (8 Pet.), 436, 8 L.Ed. 1001; Murray v. Hoboken, etc., Co., 18 How. 272, 15 L.Ed. 372; Beers v. Arkansas, 20 How. 527, 15 L.Ed. 991; U.S. v. O'Keefe, 11 Wall. 178, 20 L.Ed. 131; Finn v. U.S., 123 U.S. 227, 8 Sup.Ct. 82, 31 L.Ed. 128; Austin v. U.S., 155 U.S. 417, 15 Sup.Ct. 167, 39 L.Ed. 206; Ball v. Halsell, 161 U.S. 72, 16 Sup.Ct. 554, 40 L.Ed. 622.

We take judicial knowledge of the federal statutes having application, the President's proclamation, the orders of the Director General of Railroads, as well as of the fact that the government had control of and was operating, pursuant to law, the transportation facilities and properties of the Louisville & Nashville Railroad Company at the time and place of plaintiff's injuries, President's Procs. Dec. 26, 1917, and Apr. 11, 1918 (U.S.Comp.St.1918, 274, 275); for which the two suits were brought. Webb v. White Eng. Corp. 204 Ala. 429, 85 So. 729; Moon v. Hines, supra; Crim v. L. & N.R. Co., 89 So. 376.

The necessity for exclusive government control and operation of the transportation systems of corporations and private individuals during the war was stated by President Wilson in his address of January 4, 1918, before a joint session of the Houses of Congress, and he was supported in his view of exclusive governmental control by the courts. Nor. Pac. Ry. Co. v. State of N. Dak., 250 U.S. 135, 39 Sup.Ct. 502, 63 L.Ed. 897; Mo. Pac. Ry. Co. et al. v. Ault (No. 252, June 1, 1921) 256 U.S. 554, 41 Sup.Ct. 593, 65 L.Ed. 1087; Moon v. Hines, supra. See authorities collected in Crim v. L. & N.R. Co., supra, and L. & N.R. Co. v. Heidtmueller, 89 So. 191, written before Mo. Pac. Ry. Co. et al. v. Ault, supra, was decided.

A pertinent provision of General Order No. 18, of Mr. W.G. McAdoo, Director General of Railroads, issued April 9, 1918, is:

"It is therefore ordered, that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resides, or in the county or district where the cause of action arose."

This order was amended by General Order No. 18-A, issued April 18, 1918, as follows:

"It is therefore ordered that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose." 2 Roberts, Fed.Liab. of Carriers, pp. 1700, 1701.

Such were the original conditions to maintaining suit against the United States for a tort committed, the proximate result of which was personal injury, by agents of the United States government in operating the transportation properties of corporations and individuals, when the plaintiff brought her first suit in the superior court of Fulton county, Ga. The conditions of suit and its prosecution to judgment were thereafter changed by General Order 26. A consideration of General Orders numbered 18 and 18-A must, therefore, be in connection with General Order 26 (May 23, 1918), which is merely an amplification or interpretation of said foregoing orders. It is therein recited by way of preamble:

"*** That there are now pending against carriers under Federal control a great many suits for personal injury *** being pressed for trial by the plaintiffs in states and jurisdiction far removed from the place" where the persons alleged to have been injured or damaged resided at the time of such injury or damage, or far remote from the place where the causes of action arose; "the effect of such trials being that men operating the trains engaged in hauling war materials, troops, munitions or supplies, are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more; which practice is highly prejudicial to the just interests of the government and seriously interferes with the physical operations of railroads; and the practice of trying such cases during federal control in remote jurisdiction is not necessary for the protection of the rights or the just interests of plaintiffs"; and it was "ordered that upon a showing by the defendant carrier that the just interests of the government would be prejudiced by a present trial of any suit against any carrier under federal control which suit is not covered by General Order No. 18 and which is now pending in any county or district other than where the cause of action arose or other than in which the person alleged to have been injured or damaged at that time resided, the suit shall not be tried during

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