Moon v. Hines
Decision Date | 20 January 1921 |
Docket Number | 5 Div. 775 |
Citation | 87 So. 603,205 Ala. 355 |
Parties | MOON v. HINES, Director General of Railroads. |
Court | Alabama Supreme Court |
Rehearing Denied Feb. 12, 1921
Appeal from Circuit Court, Coosa County; E.J. Garrison, Judge.
Action by Jacob Moon by his next friend against Walker D. Hines Director General of Railroads, operating the Central of Georgia Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Riddle & Riddle, of Talladega, for appellant.
Barnes & Walker, of Opelika, for appellee.
The suit was for personal injury sustained on September 30, 1918. The complaint, filed March 12, 1919, contained counts for simple negligence and for willful, wanton, and intentional conduct. The trial was had on March 23, 1920, when the court gave the affirmative charge in writing at defendant's request, as to the latter count. There was verdict and judgment for the sole defendant, Walker D. Hines, as Director General of Railroads of the United States, successor in office to William G. McAdoo.
The pleas were of the general issue as to both counts, and contributory negligence in answer to the first count. Without conflict the evidence showed that at the time of the injury for which suit was brought, plaintiff was a soldier in the United States Army, traveling as such on a passenger train of the Central of Georgia Railway Company while that transportation system, its properties and agents, were under federal control.
The Alabama Polytechnic Institute at the time of the injury, as shown by the evidence, maintained a unit of the Reserve Officers' Training Corps, provided for by the National Defense Act, approved June 3, 1916 (39 Stat. 191), as amended. The evidence shows without conflict that the plaintiff was a student at the Alabama Polytechnic Institute so enrolled as provided by said Acts of Congress and order of the President, was a soldier and, as such soldier in the army of the United States and in compliance with the order of the appropriate department, made a trip from Auburn, Ala., to Tulsa, Okl.; and on his return therefrom pursuant to such order of superior military authority, received his injuries in question, while being transported in this state over the Central of Georgia Railway.
Under the uncontroverted facts, the primary question raised (and urged by counsel for appellant) by the giving of the general affirmative charge as to count 2, at written request of defendant, is: Whether a soldier in the United States army who was injured while being transported by the United States as such soldier, over a line of railway then being operated by the government, had a right of action (in tort) against the United States, operating the transportation system at the time and place of the injury, and causing such injury. The several acts of Congress, the President's proclamation, and orders of the Directors General of Railroads are cited or set out in Crim v. L. & N.R.R. Co., 89 So. 376, Vaughn v. State (App.) 81 So. 417, and 2 Roberts' Federal Liabilities of Carriers.
The extent of federal control has been the subject of frequent discussions by the courts. See annotations in 4 A.L.R. 1702; 8 A.L.R. 978; Spring v. Am. T. & T. Co., (W. Va.) 103 S.E. 206, 10 A.L.R. 951, and notes. That no divided, but a complete, possession and control of railroads was given the United States for all purposes by the act of Congress of 1916, the proclamations of the President exerting the powers given, and the act of 1918 dealing with the situation created by the exercise of such authority was recognized in Erie Ry. Co. v. Caldwell (C.C.A.1920) 264 F. 947. In North. Pac. v. N.D. (1919) 250 U.S. 135, 39 Sup.Ct. 502, 63 L.Ed. 897, a decision by the Supreme Court of the United States, is definitely settled and declared the paramount authority of the Director General, and it is controlling on the question that there was no divided, but complete, possession and control of the railroads given the United States for all purposes by the several acts of Congress, proclamations of the President, etc. Other cases holding that there was a complete possession and control of railroads given the United States by authority of laws and proclamations in question are Bolton v. Hines (Ark.) 221 S.W. 459; Texas & N.O.R. Co. v. Clevenger (Tex.Civ.App.) 223 S.W. 1036; Houston, E. & W.T.R. Co. v. Wilkerson (Tex.Civ.App.) 224 S.W. 574; Hines v. Dahn (C.C.A.1920) 267 F. 105. In Com. v. L. & N.R. Co., 189 Ky. 309, 224 S.W. 847; Hines v. McCook (Ga.App.) 103 S.E. 690; Wyman v. A.C.L.R. Co. (S.C.) 104 S.E. 542; Vann v. Southern Ry. (N.C.) 104 S.E. 170; Hines v. Henaghan (C.C.A.) 265 F. 831; Hines v. A. Ref. Co. (C.C.A.) 265 F. 839; Ginn v. U.S.R.R. Administration (S.C.) 103 S.E. 548; The Virginia (D.C.) 264 F. 986; Rowell v. Hines (S.C.) 103 S.E. 545; Anderson v. Minn. St. P. & S. Ste. M.R.R. Co. (Minn.1920) 179 N.W. 45.
We take judicial knowledge that the President appointed the respective Directors General of Railroads, McAdoo and Hines and, on termination of federal control, appointed Walker D. Hines, as agent under the "Transportation Act, 1920." Keene v. Hines, supra; Kersten v. Hines (Mo.) 223 S.W. 586. Facts generally known are not required to be pleaded. Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am.St.Rep. 922; Mayor, etc., v. Starr, 112 Ala. 98, 105, 20 So. 424; Perryman v. City of Greenville, 51 Ala. 507; Albrittin v. Mayor, etc., 60 Ala. 486, 31 Am.Rep. 46; Case v. Mayor of Mobile, 30 Ala. 538; Smoot v. Mayor, etc., of Wetumpka, 24 Ala. 112, 121. We take judicial knowledge of the federal statutes having application, the President's several proclamations, the general orders of the Directors General of Railroads, and who such official or agent was at any given time; of the fact that the...
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