Louisville & N.R. Co. v. Shikle

Decision Date20 October 1921
Docket Number6 Div. 405
Citation90 So. 900,206 Ala. 494
PartiesLOUISVILLE & N.R. CO. et al. v. SHIKLE.
CourtAlabama Supreme Court

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

Action by W.M. Shikle against the Louisville & Nashville Railroad Company and another. From judgment for plaintiff, defendants appeal. Reversed and remanded.

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

Brown &amp Denson, of Birmingham, and Paine Denson, of Cullman, for appellee.

THOMAS J.

The suit, brought on September 13, 1919, in Cullman county, for personal injury alleged to have been sustained on September 15, 1918, in Jefferson county, resulted in judgment for plaintiff. The count as amended was by appellee against Louisville & Nashville Railroad Company, a body corporate and Berry Hill, the servant in charge at the point of injury.

The judgment entry recites that demurrer was sustained to defendant's plea in abatement, said plea being--

"That this court is without jurisdiction to try and determine this cause, for that the plaintiff has a permanent residence in Jefferson county, Alabama, and the acts or omissions complained of, or the injury for which this suit is instituted, occurred in Jefferson county, Alabama, and this defendant avers it does business by agent in Jefferson county, Alabama, and
can be sued in said county."

A general statement of public policy underlying decisions touching suits against the sovereign is that it may prescribe the terms on which the right to be sued is granted, and the manner in which the suit shall be conducted, and may modify such conditions or consent, or withdraw the same whenever it is supposed that justice to the public requires. Moon v Hines, 205 Ala. 355, 87 So. 603, 13 A.L.R. 1020; Elmore v. Fields, 153 Ala. 345, 45 So. 66, 127 Am.St.Rep. 31; U.S. v. Clarke, 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 proclamations, the appointment of and orders by the Director General of Railroads; the President's designation of an "Agent" against whom suits might be brought within two years from the date of the passage of the act; 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. For President's proclamations of December 26, 1917, and April 11, 1918, see U.S.Comp.St.1918, pp. 274, 275; Moon v. Hines, supra; Crim v. L. & N. (Ala.Sup.) 89 South 376; Webb v. White Eng. Corp., 204 Ala. Sup. 429, 85 So. 729. Facts judicially known need not be pleaded and proved. Moon v. Hines, supra.

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 Congress, and he was supported in his view by the construction of the act of Congress given by the courts. Nor. Pac. v. Nor. Dak., 250 U.S. 135, 39 Sup.Ct. 502, 63 L.Ed. 897; Mo. Pac. & Hines v. Ault, No. 252, 256 U.S. 554, 41 Sup.Ct. 593, 65 L.Ed. 647; Moon v. Hines, supra. See authorities collected in Crim v. L. & N., supra (Ala. Sup.) 89 So. 376, and L. & N. v. Heidtmueller (Ala.Sup.) 89 So. 191.

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.

The conditions of suit and its prosecution to judgment were thereafter dealt with in General Order 26. A consideration of General Orders numbered 18 and 18-A must be in connection with General Order 26 (May 23, 1918), which is 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 jurisdictions 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 operation of railroads; and the practice of trying such cases during federal control in remote jurisdictions 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 the period of federal control: Provided, if no suit on the same cause of action is now pending in the county or district where the cause of action arose, or where the person injured or damaged at that time resided, a new suit may, upon proper service, be instituted therein; and if such suit is now barred by the statute of limitations, or will be barred before October 1, 1918, then the stay directed by this order shall not apply unless the defendant carrier shall stipulate in open court to waive the defense of the statute of limitations in any such suit which may be brought before October 1, 1918." 2 Roberts, p. 1709.

A just application of the foregoing general governmental rules or requirements was made in Cocker v. N.Y., etc., Co. (D.C.) 253 F. 676, where it was declared that under General Order No. 26, upon a showing that the interests of the government will be prejudiced by a present trial of action against a carrier under federal control pending in a county or district other than where the cause of action arose or where the plaintiff then resided, a stay of action may be granted, dependent upon the circumstances of each case; the primary consideration being the situation of the government relative to railroad witnesses leaving their work, etc. Norton v. Hines (Ala.Sup.) 89 So. 277.

Though there was error in sustaining demurrer to defendant's plea in abatement, the reversal is not rested solely upon this ruling. The record shows that the defendant Louisville & Nashville Railroad Company moved to dismiss the cause as to it on stated grounds of government control at the time of the injury and when the suit was brought (Gen.Orders No. 50 and 50-A); the Transportation Act of February 28, 1920, 41 Stat. 456) the designation and appointment of John Barton Payne "as the proper Agent against whom the cause of action alleged in plaintiff's complaint should be brought and maintained," and that said suit may not be maintained against the defendant corporation, etc. The judgment entry recites of this that:

"Thereupon the defendant Louisville & Nashville Railroad Company files motion to dismiss this cause as to them, which said motion being submitted to the court, and duly considered and understood by the court, it is ordered and adjudged by the court that said motion be, and hereby is, overruled. Thereupon defendant files motion to substitute John Barton Payne, Agent, as defendant, which said motion being submitted to the court, and duly considered by the court, it is ordered and adjudged by the court that said motion be, and hereby is, overruled. Thereupon defendant files demurrers to the complaint, 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, overruled."

The several grounds of demurrer challenge the sufficiency of the complaint against defendant corporation for an injury sustained during and as the result of government operation of the transportation properties of the Louisville & Nashville Railroad Company, and for which suit was sought to be maintained against the corporation, and not against the government or its designated Agent, when the corporation's transportation properties were under government control.

The case was tried October 19, 1920. Congress had passed the Transportation Act on February 28, 1920 (Moon v. Hines supra), and it was in full force and effect; and under section 206 of said act--subdivisions (a), (d),...

To continue reading

Request your trial
40 cases
  • Lewis v. Martin
    • United States
    • Alabama Supreme Court
    • October 18, 1923
    ... ... all necessary parties. L. & N. R. Co. v. Shikle, 206 ... Ala. 494, 90 So. 900. Appellants' counsel point to the ... fact that the guardian ad ... ...
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Alabama Supreme Court
    • May 1, 1930
    ... ... Section 14, ... Const.; Ex parte State, 52 Ala. 231, 23 Am. Rep. 567; ... Louisville & N. R. Co. v. Holmes, 206 Ala. 304, 89 ... So. 610; Louisville & N. R. Co. v. Shikle, 206 Ala ... ...
  • Dulion v. Folkes
    • United States
    • Mississippi Supreme Court
    • October 15, 1928
    ... ... Ernest, 80 So. 729, 206 Ala ... 1, 22 A. L. R. 1387; L. & N. R. Co. v. Shikle, 90 ... So. 900, 206 Ala. 494; Hodge v. Joy, 92 So. 171, 207 ... Ala. 198; Matlock v ... ...
  • Henderson v. Henderson
    • United States
    • Alabama Supreme Court
    • May 24, 1923
    ... ... assignments of error for Dorothy Henderson. L. & N. R ... Co. v. Shikle, 206 Ala. 494, 90 So. 900; Sherrod v ... McGruder (Ala. Sup.) 96 So. 78 ... The ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT