Parnell v. Southern Ry. Co.

• Decision Date: 15 February 1917
• Docket Number: 1 Div. 962
• Citation: 199 Ala. 470,74 So. 437
• Parties: PARNELL v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

74 So. 437

199 Ala. 470

PARNELL v. SOUTHERN RY. CO.

1 Div. 962

Supreme Court of Alabama

February 15, 1917

Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.

Suit by Thomas Parnell against the Southern Railway Company. From a judgment of nonsuit on demurrer to the complaint, plaintiff appeals. Judgment reversed, and judgment rendered overruling the demurrer, and cause remanded.

McClellan Mayfield, and Sayre, JJ., dissenting.

John E Mitchell, of Mobile, for appellant.

Bestor & Young, of Mobile, and Granade & Granade, of Chatom, for appellee.

GARDNER J.

Appellant brought suit against the appellee for recovery of damages for the destruction by fire of a sawmill, machinery, and equipment, located near the right of way of appellee's railroad. It was charged in the complaint that the property was destroyed through the negligence of agents or employés of the defendant railroad company while acting in the scope of their employment, in the negligent operation or negligent construction or equipment of the defendant's engine whereby sparks emitted therefrom set fire to and destroyed the said property. The property belonged at the time of the fire to J.B. Slade and C.E. Harrell, who, after its destruction, assigned in writing to the plaintiff, Parnell, their claim against the defendant for said loss. Demurrers were interposed, taking the point that there is no warrant in law for plaintiff to bring suit in his own name for damages to property of others, and that such a claim cannot be legally assigned so as to authorize the assignee to bring suit in his own name. The demurrer was sustained, and from this adverse ruling on the pleading the plaintiff took a nonsuit and prosecutes this appeal to review the ruling of the lower court.

Section 5159 of the Code reads as follows:

"Claims against railroad companies, for injuries to property, may be assigned in writing, and each successive assignee thereof may sue thereon in his own name."

It is, of course, conceded that if this is a valid statute the demurrer should be overruled. The appeal therefore presents for review the one question as to the constitutionality of this statutory provision.

We think it clear that claims of this character, although tort actions for damage to or destruction of property, are assignable. McNutt v. King, 59 Ala. 597; Camack v. Bisquay, 18 Ala. 286; Southern Ry. Co. v. Stonewall Ins. Co., 177 Ala. 333, 58 So. 313, Ann.Cas.1915A, 987; Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; Leach v. Greene, 116 Mass. 534; L.N.A., etc., Ry. v. Goodbar, 88 Ind. 213; Snyder v. Wabash, etc., R.R. Co., 86 Mo. 613, 29 Am. & Eng.R.R.Cas. 237.

It was indicated in the Stonewall Ins. Case, supra, that as a general rule a right of action for torts for injury to property is not assignable in this state so as to pass the legal title and enable the assignee to sue in his own name. This may, for the purposes of this case, be conceded as the general rule here recognized. So conceding, however, it is insisted that the above-quoted section is void as in violation of section 240 of the Alabama Constitution of 1901, which reads as follows:

"All corporations shall have the right to sue, and shall be subject to be sued, in all courts in like cases as natural persons."

And it is further insisted that it is violative of section 1, art. 14, of the federal Constitution, reading as follows:

"No state shall make or enforce any law which shall *** deny to any person within its jurisdiction the equal protection of the laws."

In support of the former insistence, much reliance is placed upon the cases of S. & N.A.R.R. v. Morris, 65 Ala. 193, and Smith v. L. & N.R.R. Co., 75 Ala. 449. The Morris Case dealt with an act which fixed a liability upon railroads for attorney's fees not to exceed a certain amount, when appeal is taken and unsustained from a judgment against them rendered by a justice of the peace, in suits for damages of a certain character. The act there under consideration was of about the same character as that of the state of Texas, reviewed and declared invalid by the United States Supreme Court in Gulf, etc., Co. v. Ellis, 165 U.S. 150, 17 Sup.Ct. 255, 41 L.Ed. 666. The other case relied upon (Smith v. L. &. N.R.R. Co.) dealt with a statute which created an entirely new cause of action--one theretofore unknown, and on account of its discrimination against corporations or private associations of persons, in favor of the individual, was declared invalid. It is to be noted that in each of these cases the nature and measure of liability was affected by the act imposing new liabilities, Such cannot be said, however, of the statute here under review.

We have held that this claim is assignable. The only question of moment is as to whether the assignee is permitted to sue in his own name, or whether he must maintain the suit in the name of his assignor. The statute under consideration says that he may maintain the suit in his own name. No liability or undue burden is imposed upon the railroad company, nor does the statute affect any of the substantial rights of the parties. It applies, not to the right, but to the remedy. In the suit upon its merits the same defenses are allowed the defendant, and the same limitations exist as to the rights of the plaintiff, whether the suit is instituted by the original owners, Slade and Harrell, or by the plaintiff, Thomas Parnell.

This provision of our law seems to have been first enacted on March 1, 1870 (Acts 1869-70, p. 235), and the constitutional provision here under consideration has remained without material change so far as the question here involved is concerned. The constitutionality of the act appears to have been first raised in the case of L. & N.R. Co. v. Landers, 135 Ala. 504, 33 So. 482, though not there passed upon. It was next presented in Southern Ry. Co. v. Stonewall Ins. Co., 163 Ala. 167, 50 So. 940, and on second appeal of the same case (177 Ala. 327, 58 So. 313, Ann.Cas.1915A, 987). That case, like the present one, involved the destruction of property belonging to several persons, by fire alleged to have been caused by the emission of sparks from the railway engine. The constitutionality of the statutory provision was there considered by the court not necessary to be determined; but the opinion discloses the conclusion that the statute did not affect any substantial right but only a question of form, as is indicated by the following quotation from that opinion:

"We are not required by this appeal to pass upon the constitutionality of that statute; and, as held on the former appeal in this case, the defect, if any, was technical only, and could have been corrected by amendment in response to objection seasonably and properly interposed."

In the case of Home Protection Ins. Co. v. Richards, 74 Ala. 466, this provision of our Constitution was invoked upon an attack on the act providing that suits may be brought against corporations in any county in which they do business by agents. It was there said:

"It is a general rule that no one have any vested right to any particular remedy or form of procedure, and that the matter of venue belongs to the procedure or remedy, and is no part of the right itself. The act of February 13, 1879, the constitutionality of which is assailed by the appellant, is intended only to regulate civil procedure, and does not, in our judgment, appear to be such an unreasonable discrimination as that we can pronounce it to be arbitrary, capricious, or without the semblance of reason. Unless this be true, there is usually no other limitation open the authority of the lawmaking power, in the exercise of its discretion as to classification of persons, and the shaping of remedies so as to adapt them to the inherent nature of the subject-matter of legislation in the infinitude of their changing variety."

The act was declared valid.

In Smith v. L. & N.R.R. Co., supra, the Richards Case, supra, is commented upon and differentiated; it being pointed out that the latter case involved the question of mere form of proceeding, the court saying:

"The difference commented on in that case did not affect the nature or measure of liability, but only the forum, or form of its enforcement. If the effect of the statute, therein construed and held constitutional, had been to fasten a liability on one class, from which the other class was exempt, the case would have been considered as falling properly within the influence of Mayor v. Stonewall Ins. Co., 53 Ala. 570, and S. & N.A.R. v. Morris, 65 Ala. 193."

There can be no insistence in this case, therefore, that this legislation, by operating upon the remedy, has seriously impaired any legal rights of the defendant railroad. It relates to a question of form, a mere matter of procedure, referred to in So. Ry. Co. v. Stonewall Ins. Co., supra, as purely a technical question.

In the Richards Case, supra, the language of the opinion indicates the view of the court that the constitutional provision of our state here under consideration would not embrace questions of civil procedure which could not be said to seriously impair any legal right; but that, in any event, for such legislation to be held objectionable there must be such an unreasonable discrimination as to be pronounced "arbitrary, capricious, or without the semblance of reason." Clearly, such could not...