Lusk v. Britton

• Decision Date: 08 June 1916
• Docket Number: 6 Div. 190
• Citation: 73 So. 492,198 Ala. 245
• Parties: LUSK et al. v. BRITTON.
• Court: Alabama Supreme Court

73 So. 492

198 Ala. 245

LUSK et al. v. BRITTON.

6 Div. 190

Supreme Court of Alabama

June 8, 1916

Rehearing Denied Dec. 30, 1916

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Ed. Britton against James W. Lusk and others, as receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellants.

C.C Nesmith and Luke P. Hunt, both of Birmingham, for appellee.

GARDNER J.

Suit by employé against the employers for the recovery of damages sustained by the plaintiff from injuries received while in the service of the defendants and while acting within the scope of his employment.

The original complaint contained five counts, all of which were withdrawn before the conclusion of the trial; and the complaint was amended by substituting counts 6 and 7, upon which the trial was had, each of which relied for recovery upon the federal Employers' Liability Act (Act April 22 1908, c. 149, 35 Stat. 65 [U.S.Comp.St.1913, §§ 8657-8665]).

Plaintiff was employed by the receivers of the St. Louis & San Francisco Railroad Company in the capacity of brakeman. The car on which he was riding was derailed near Ensley, Ala and he was thrown; the injuries complained of being caused by the fall.

Testimony for the plaintiff tended to show that the car was derailed by reason of the fact that a large amount of "slag" had been negligently permitted to accumulate above the rail of the track. Plaintiff was awarded a judgment of $1,500, from which judgment the defendants prosecute this appeal.

Much of the argument and several assignments of error are rested by counsel for appellants upon the assertion that the said railroad company was a party defendant to the cause, and not receivers alone, and that the judgment, being in the singular, and not disclosing against which defendant it was rendered, is too uncertain to support the recovery. Based upon the same assumption is the further insistence that the amendment to the complaint counts 6 and 7 clearly showing that recovery was sought against the receivers as such only, was improperly allowed as making an entire change of parties.

The railroad company has assigned errors on this appeal separate from those assigned by the receivers. Counsel for appellee insist that the receivers only were sued, and that the corporation, the railroad company, was not a party defendant. Motion is therefore made to strike the assignments of error entered by said company.

In determining the parties to a suit the summons is to be looked to, in connection with the complaint, as "under our system of pleading the complaint follows the summons, on the same paper, and both are served upon the defendant at the same time." Greer & Walker v. Liipfert-Scales Co., 156 Ala. 572, 47 So. 307; Broun Lbr. Co. v. Coleman, 190 Ala. 315, 67 So. 243.

In this case the summons is directed to "James W. Lusk, W.C. Nixon, and W.B. Biddle, as receivers of St. Louis & San Francisco Railroad Company." The caption of the complaint is as follows: ß7FEd Britton v. James W. Lusk, W.C. Nixon, and W.B. Biddle, as Receivers of the St. Louis & San Francisco Railroad Company, a Corporation." Thus far, therefore, it is clear that there is nothing to indicate any irregularity in the suit as one against the receivers only. The only foundation for the defendants' insistence to the contrary seems to be in the wording of the first line of count 1 of the complaint, wherein it is alleged that "plaintiff claims of the defendant, a corporation."

The question here insisted upon does not appear to have been pressed before the court, nor, indeed, to have been even called to the court's attention, during the trial of the cause. The case proceeded as if there was but one defendant, the receivers in their official capacity. It would indeed be a technical and strange construction to hold that the use of the word "corporation," as quoted above, would be sufficient to change the entire character of the suit to one, not against the receivers, but against the railroad company itself. It is quite clear that this expression was a mere misdescription, and should be treated as surplusage.

Nor will the mere fact that during the progress of the trial the railroad company filed in the cause a plea of the general issue suffice, in the present state of the record, to cast any doubt upon who are the proper parties to the suit. It was simply a voluntary act, and one which could have no effect upon the jurisdiction of the court nor upon the procedure by the plaintiff against the real defendants here.

We therefore conclude that the railroad company was not a party to the suit, that no judgment was sought nor rendered against it, and that for this reason the motion of the appellee to strike the company's assignments of error should be sustained....