Opinion
2 Div. 729.
June 30, 1921.
Appeal from Circuit Court, Sumter County; R.I. Jones, Judge.
Frank S. White Son, of Birmingham, B. F. Elmore, of Demopolis, and Thomas F. Seale, of Livingston, for appellant.
Counsel discuss the various errors assigned relative to matters happening upon the trial; but, in view of the opinion, it is not deemed necessary to here set them out. Defendant was liable to plaintiff, notwithstanding the operation of the railroad by the Director General of Railroads. 189 Ala. 604, 66 So. 580; 17 Wall. 445, 21 L.Ed. 675; 85 Ala. 600, 5 So. 353; 129 Ala. 483, 29 So. 775; Elliott on Railroads, § 475; 204 Ala. 150, 85 So. 372; 233 Mass. 162, 123 N.E. 621; 106 Misc. Rep. 58, 174 N.Y. Supp. 60; 81 So. 417; 42 N.D. 269, 172 N.W. 841, 4 A.L.R. 1635; 143 Minn. 74, 172 N.W. 918, 4 A.L.R. 1659; 93 Vt. 92, 106 A. 587; 180 Ky. 290, 202 S.W. 878; 202 S.W. 179; (D.C.) 255 Fed. 795; (C.C.A.) 255 Fed. 850; 162 Ala. 570, 50 So. 293.
Smith, Wilkinson Smith, of Birmingham, for appellee.
The defendant was entitled to the affirmative charge since the railroad was not being operated by the corporation, but by the Director General of Railroads. 204 Ala. 350, 85 So. 765; 210 Mich. 409, 178 N.W. 232; 208 Mich. 403, 175 N.W. 580, 8 A.L.R. 964; 203 Ala. 675, 85 So. 10; 84 So. 864; 250 U.S. 135, 39 Sup. Ct. 502, 63 L.Ed. 897; (C. C.) 70 Fed. 279; (D.C.) 258 Fed. 945; (D.C.) 258 Fed. 952; (D.C.) 259 Fed. 361; (D.C.) 260 Fed. 280; 113 S.C. 188, 101 S.E. 926; 112 S.C. 407, 99 S.E. 846, 8 A.L.R. 959; (Tex.Civ.App.) 219 S.W. 245; (Tex.Civ.App.) 219 S.W. 252; 189 Ky. 309, 224 S.W. 847; 84 So. 556.
In the case of Missouri Pacific R. R. Co. et al. v. Ault, 256 U.S. 554, 41 Sup. Ct. 593, 65 L.Ed. ___, recently decided by the Supreme Court of the United States (June 1, 1921), that court has decided that railroad corporations cannot be sued or held liable for the wrongful acts or omissions of the railroad administrator in the operation of their several transportation systems during the period of governmental control. That decision rests upon the proposition that the authority given by section 10 of the Federal Control Act (U.S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, § 3115 3/4 j) to bring actions at law or suits in equity against "carriers" while under federal control cannot be construed as authorizing suits against the several railroad corporations, who had nothing to do with the operation of their lines, but must be construed as authorizing suits against the government or its agency, as the only responsible operator of the several transportation systems. The conclusion is thus stated by Mr. Justice Brandeis, speaking for the court:
"As the Federal Control Act did not impose any liability upon the companies on any cause of action arising out of the operation of their systems of transportation by the government, the provision in Order No. 50 authorizing the substitution of the Director General as defendant in suits then pending within his power, the application of the Missouri Pacific Railroad Company that it be dismissed from this action should have been granted; and the judgment against it should therefore be reversed."
That decision must control here, and we therefore hold that defendant's motion for the substitution of the Director General should have been granted, and that defendant should have been dismissed from the suit. As a matter of law the defendant corporation was not liable on the cause of action exhibited, and it is not now material to consider whether error was committed by the trial court in any of the rulings complained of, since, in any event, it was error without injury. In such a case we will not reverse but will affirm the judgment appealed from, as being in accordance with the law of the case.
Our cases of L. N. R. R. Co. v. Johnson, 204 Ala. 150, 85 So. 372, and Crim v. L. N. R. R. Co., 89 So. 376, are not in accord with the ruling of the federal Supreme Court, and on the point in question they must be overruled.
Ante, p. 110.
The judgment of the circuit court will be affirmed.
Affirmed.
All the Justices concur.
Whenever the question has been presented, I have maintained that the sovereign must be sued for tort by consent, and therefore upon its own terms (Moon v. Hines, 205 Ala. 355, 87 So. 603, 13 A.L.R. 1020); that when the United States took over transportation properties of corporations and persons and operated the same there was no divided control; and that under the Federal Control Transportation System Act (and section 10 thereof) and orders of the Directors General of Railroads, no authority for suit for a tort was given against the corporation or owner, the result of the government's operation of such transportation properties. See my dissenting opinion in Crim v. L. N. R. R. Co., 89 So. 376, L. N. R. R. Co. v. Heidtmueller, 89 So. 191, L. N. R. R. Co. v. Holmes, ante, p. 304, 89 So. 610, and the opinion of this court in Moon v. Hines, supra.
Ante, p. 110.
Ante, p. 29.