124 S.E. 123 | N.C. | 1924
This case was originally decided by us on 16 April, 1924. Since that time the Supreme Court of the United States has rendered a contrary decision in a case essentially similar to the one at bar, and which we consider a controlling authority on the question here presented. Davis v.Donovan,
On the trial the following issue was submitted to the jury and answered by them in the negative: "Were the three mules, or any of them described in the complaint, delivered to the Director General of Railroads, operating the Atlantic Coast Line Railroad?"
The mooted question presented by the pleadings and the verdict is whether the defendant, as Director General of all the railroads over which the shipment was routed, submitted himself to the jurisdiction of the court in his capacity as Director General of the initial and connecting carriers, as well as of the delivering carrier. The plaintiffs were entitled, as a matter of right, to proceed against the defendant only in his capacity as Director General of the Atlantic Coast Line *151 Railroad. As this was the only capacity in which the United States consented to be sued in an action like the present, the defendant's answer should be construed in conformity with the statute and orders under which such consent was given, and not otherwise. St. Louis, B. M. Ry. Co. v.McLean, 253 S.W. 248.
No liability having been established against the defendant in the capacity in which he was served, or in which he answered, it follows that our former decision granting a new trial must be reversed, and the judgment of the Superior Court dismissing the action as originally rendered will be affirmed.
Petition allowed.