Opinion
10419
June 28, 1920.
Before WILSON, J., at chambers, January, 1920. Reversed.
Action by Seaborn Rose against Southern Railway Company and Walker D. Hines, Director General of Railroads. Motion by Southern Railway Company to set aside the summons as to it, and upon refusal of motion, the railway company appealed.
Messrs. W.D. Barnett and M.G. McDonald, for appellant, cite: Operation of railroads by the government in their own names did not confer on operating officials a dual capacity: 112 S.C. 407; 99 S.E. 846; 101 S.E. 926. Suit should have been against Director General exclusively: 112 S.C. 407; 99 S.E. 846; 101 S.E. 924; 101 S.E. 926; G. O. No. 50.
Marion W. Seabrook, for respondent, oral argument.
June 28, 1920. The opinion of the Court was delivered by
This is an appeal from an order of his Honor, Judge Wilson, refusing to set aside the service of summons and complaint made upon the Southern Railway Company.
The exceptions raise the issues:
"Is the defendant, Southern Railway Company, liable to be sued in this action, or should the action be brought exclusively against the Director General of Railroads?"
"Was J.A. McClure, at the time of the service of the summons and complaint upon him, an agent or employee of Southern Railway Company, or was he at such time an agent solely and only of the United States government in operation of said railroad through the Director General of Railroads?"
The cause of action arose during the Federal control and the Director General was in operation of the Southern Railway Company, and the case of Castle v. Southern Railway Co., 112 S.C. 407, 99 S.E. 846, is controlling on the question of agency.
The fact that the government operated the railroads under their distinctive names did not have the effect of conferring on the operating officials or employees a dual capacity of agent both for the government and for the corporation. Harmon v. Hines, Director General of Railroads, 113 S.C. 188, 101 S.E. 926.
His Honor was in error in deciding at the time of service upon him that McClure was the agent of the Southern Rail way Company.
This action is exclusively against the Director General of Railroads. It is no longer an open question, having been passed on by this Court in Castle v. Railway Co., 112 S.C. 407, 99 S.E. 846; Jackson-Tweed Lumber Co. v. Southern Railway Co., 113 S.C. 236, 101 S.E. 924, and Harmon v. Southern Railway Co., supra, and Grant v. Hines, Director General, 114 S.C. 89, 102 S.E. 854, by Justice Fraser, April 14, 1920.
The judgment is that the order appealed from is reversed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES HYDRICK. FRASER and GAGE concur.