Payne v. Smitherman

• Decision Date: 03 November 1921
• Docket Number: 6 Div. 426.
• Citation: 91 So. 575,206 Ala. 591
• Parties: PAYNE, DIRECTOR GENERAL, v. SMITHERMAN.
• Court: Alabama Supreme Court

91 So. 575

206 Ala. 591

PAYNE, DIRECTOR GENERAL, v. SMITHERMAN.

6 Div. 426.

Supreme Court of Alabama

November 3, 1921

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

Action by O. Smitherman, filed originally against William G. McAdoo as Director General of Railroads, operating the Louisville &amp Nashville Railroad. James Barton Payne was substituted as Director General. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Huey &amp Welch, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

SOMERVILLE J.

The action is for personal injuries suffered by plaintiff in a collision with defendant's train of cars at a public road crossing. The complaint contains several counts declaring on simple negligence, which were eliminated from consideration by the trial court, and the cause was submitted to the jury on count 3 only, declaring upon wanton negligence, and claiming damages for various injuries enumerated.

Count 3 is clearly sufficient as a wanton count, and is not subject to any of the grounds of demurrer. M. & C. R. Co. v Martin, 117 Ala. 367, 23 So. 231; So. Ry. Co. v. Crenshaw, 136 Ala. 573, 34 So. 913.

Some of the instructions requested by defendant, and refused by the trial judge, deny the liability of the federal government, when sued through the medium of its designated agent, the Director General of Railroads, for punitive damages under a count for wanton negligence in the operation of railroad trains; and deny also any right of recovery against the Director General under a wanton count.

In the leading case of Missouri Pac. R. Co. v. Ault, 256 U.S. 554, 41 S.Ct. 593, 65 L.Ed. 1087, it was expressly declared that "the purpose for which the government permitted itself to be sued was compensation, not punishment"; and, further, that-

"Wherever the law permitted compensatory damages they may be collected against the carrier while under federal control. *** But double damages, penalties and forfeitures, which do not merely compensate but punish, are not within the purview of the statute."

Following the plain rule announced in that decision, we are constrained to hold that the defendant in this case, the Director General representing the federal government, is not liable for punitive damages, and that the trial judge erred in refusing to so instruct the jury at defendant's request, and also in affirmatively instructing them that such damages could be awarded.

The authority cited is, of course, conclusive; but it may be noted that the Supreme Court of South Carolina has also decided, without reference to the Ault Case, that the Director General cannot be sued for willfulness (Rowell v. Hines, Director General, 114 S.C. 339, 103 S.E. 545), and that he cannot be held to respond in punitive damages ( Ginn v. U.S. R. R. Administration, 114 S.C. 236, 103 S.E. 548).

In this state, the plaintiff may recover compensatory as well as punitive damages under a count for wanton negligence. Clinton Min. Co. v. Bradford, 200 Ala. 308, 76 So. 74, headnote 13.

The Ault Case, supra, does not hold that the Director General is not liable for acts of wanton negligence on the part of his employés, but only that he cannot be held liable for punitive damages-which is quite a different proposition.

In the absence of any ruling to the contrary by the federal Supreme Court we are of the opinion and so hold that the plaintiff in this case could recover compensatory...