Moon v. Hines, 5 Div. 775

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation87 So. 603,205 Ala. 355
PartiesMOON v. HINES, Director General of Railroads.
Docket Number5 Div. 775
Decision Date20 January 1921

87 So. 603

205 Ala. 355

HINES, Director General of Railroads.

5 Div. 775

Supreme Court of Alabama

January 20, 1921

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.

Under authority of the Act of Congress approved May 18, 1917 (U.S.Comp.St.1918, U.S.Comp.St.Ann.Supp.1919, § 2044a et seq.) the President, by General Order 79, [87 So. 604] War Department, August 24, 1918, directed that for the period of the emergency there be raised and maintained by voluntary induction and draft a Students' Army Training Corps. Paragraph 11 of the Special Regulations for the Students' Army Training Corps provides that--

"Upon admission to the Students' Army Training Corps a registrant becomes a soldier in the army of the United States. As such he is subject to military discipline at all times."

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.

In addition to the acts of Congress cited in foregoing cases, it may be noted that in the act of Congress approved February 28, 1920, for the termination of federal control, and designated as the "Transportation Act, 1920," it was provided that--

"Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the act of August 29, 1916 (U.S.Comp.St.1918 [Compact Ed.] § 1974a) of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against an agent designated by the President for the purpose, which agent shall be designated by the President within thirty days after the passage of this act. Such actions, suits or proceedings may within the periods of limitation now prescribed by state or federal statutes but not later than two years from the date of the passage of this act, be brought in any court which but for federal control would have had jurisdiction of the cause of action had it arisen against such carrier." Statutes of U.S.A.1919-20, § 206(a), 41 Stat. 461; Public Service Comm. v. N.Y.C.R. Co. (1920) 112 Misc.Rep. 617, 183 N.Y.Supp. 799; Keene v. Hines (1920) 111 Misc.Rep 398, 183 N.Y.Supp. 520

For easy reference we here reproduce section 10 of the act of Congress, March 21, 1918 (U.S.Comp.St.1918, U.S.Comp.St.Ann.Supp.1919, § 3115 3/4j) called the "Federal Controlled Transportation System Act," containing the provision that--

While under federal control carriers "shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. Nor shall any such carrier be entitled to have transferred to a federal court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the federal control of such carrier; and any action which has heretofore been so transferred because of such federal control or any act of Congress or official order or proclamation relating thereto shall upon motion of either party be retransferred to the court in which it was originally instituted. But no process, mesne or final, shall be levied against any property under such federal control. During the period of federal control, whenever in his opinion the public interest requires, the President may initiate rates, fares, charges, classifications, regulations, and practices by filing the same with the Interstate Commerce Commission, which said rates, fares, charges, classifications, regulations and practices shall not be suspended by the commission pending final determination." (Italics supplied.) U.S.Comp.Stat.1918 (Compact Ed.) § 456; Castle v. Southern Ry. Co., 112 S.C. 407, 99 S.E. 846, 8 A.L.R. 959.

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 [87 So. 605] 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 government had control of and was operating, pursuant...

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