8 Div. 969. | Ala. | Nov 10, 1927
The suit is to recover damages for injury to a shipment of two carloads of mules on through bills of lading from Plainview, Tex., to Hartselle, Ala. The transaction occurred in 1918 during the period of federal control of railroads. As amended, the action proceeded against Andrew W. Mellon, as Director General, etc., for injuries occurring in operation of the Southern Railway, an intermediate carrier, and the Louisville Nashville Railroad, the delivering carrier. The affirmative charge was given for defendant as against liability for injury in transportation over the Louisville Nashville Railroad, and there was a verdict and judgment for plaintiff, shipper, for injuries in operation of the Southern Railway.
A new trial was granted on motion of defendant directed against the judgment for plaintiff.
Plaintiff appeals and assigns for error, among others, the order granting a new trial and the giving of the affirmative charge as to the Louisville Nashville Railroad.
Appellee moves to dismiss the appeal upon the ground, among others, that the original judgment in favor of the Louisville Nashville Railroad and the order granting a new trial on motion of the Southern Railway are two separate and distinct judgments.
While the suit, in effect one against the government by its consent, must proceed against the one agent of the government named by law for the purpose, the breach complained of must specify the railway *78
system whereon the injury occurred and the proof conform thereto. To all intents the suit proceeds as if against the two companies. Each is deemed a separate entity in such action. Liability must be fixed among the several connecting carriers as though the government was not a party. Davis v. Donovan,
Yet, dealing with the case on appeal as one against two separate corporate defendants, it is one suit based on one shipping contract relating to the same shipment, each liable severally for nonperformance of its duty under the common contract.
The trial resulted in one judgment, holding one carrier liable and the other not, an entirely permissible result. True, such judgment is dual in character, in favor of the one and against the other. The motion for a new trial and order granting the same in favor of the losing defendant was dealing with one phase of this judgment. The subject-matter of the motion was this judgment, and determined the status of the parties as to the entire suit. We do not concur with appellee in the view that the original judgment and the order granting a new trial were such separate, distinct judgments that they may not be reviewed on one appeal. No reason occurs to us why in such case there must be two distinct appeals with the consequent delay and extra cost. This court has full power to apportion costs as justice may appear; no matter what the decision. If judgment had gone for or against both defendants, clearly our statutes would have authorized a review of the judgment denying a motion for a new trial, either upon appeal from the main judgment or on appeal from the ruling on the motion. If the motion is granted, an appeal lies from that ruling. Because the original judgment was in favor of one and against the other, and a new trial granted as to the latter, cannot, we think, prevent a review of the entire matter on one appeal.
Another ground of the motion to dismiss the appeal proceeds upon the view that the judgment is a nullity, and will not support an appeal, because the defendant named was not the agent designated by law to be made party defendant in such actions.
The defendant named in the original complaint was "Walker D. Hines, as United States Director of Railways." Pending the suit, "James C. Davis, as Director General of Railroads and federal Agent liquidating claims growing out of government operation," was substituted as defendant. On the trial, as appears from the judgment, "Andrew W. Mellon, as Director General of the United States Railroad Administration," as successor, etc., was substituted.
The proper official title is "Director General of Railroads." Accordingly, the proclamation of President Coolidge December 14, 1925, designated: "Andrew W. Mellon, Director General of Railroads, and his successor in office, as the Agent provided for in section 206 of said act approved February 28, 1920." For section 206 of Transportation Act see Fed. Stat. Ann. Sup. 1920, p. 77 (49 USCA § 74; U.S. Comp. St. § 10071 1/4 CC).
True, the right to sue the federal government can be exercised only in the cases subject to the conditions, and in the manner prescribed by law.
While the title or name under which the government gave consent to be sued is not given with exactness, it is clearly manifest the title employed from time to time sought to designate or describe the Agent named by law. Some descriptive matter was mere surplusage.
The defect was in the nature of a misnomer, and amendable. After the Director General of Railroads has appeared by duly authorized counsel, pleaded, and proceeded to trial on the merits, we do not concur in the view that the government has never been in court. Whatever errors might have been presented on appeal, had judgment gone against the government, we do not think there was want of jurisdiction. The liberal policy manifested in the Federal Control Act (U.S. Comp. St. §§ 3115 3/4a-3115 3/4p) authorizing suit as though there was no federal control, and careful provision for continued prosecution of pending causes after federal control had ended, indicate to us an intent to recognize the same rules of law in matters of jurisdiction and procedure as obtain in litigation between private persons.
The motion to dismiss the appeal is overruled.
Granting of the motion for new trial cannot be sustained, as appellee argues, for entire failure of proof that the shipment was handled by the Southern Railway System as an intermediate carrier.
There was evidence that the cars were seen on the Southern tracks at Decatur before movement over the Louisville Nashville to Hartselle, and the waybills in evidence show the cars moved from Memphis on waybills 391 and 393 of the Southern Railway of date of February 7th.
Nor, on the other hand, can the granting of a new trial be reversed upon the ground that the Southern Railway Company is liable as intermediate carrier of an interstate shipment on through bill of lading for all injuries occurring en route, even while being handled by connecting carriers.
The contract contained the usual limitation of liability to injuries occurring on its own line. Such stipulation is valid. Indeed, without special contract or relation of the carriers imposing a joint liability, each is liable severally for nonperformance of its own duty only. The Cummings-Carmack Amendment (49 USCA § 20; U.S. *79
Comp. St. §§ 8592, 8604a, 8604aa), imposing liability on the initial carrier throughout, does not extend to connecting carriers. As to these liability remains as theretofore. Oregon-Washington R. Nav. Co. v. McGinn,
Among the grounds of motion for a new trial was the following portion of the court's oral charge to which exception was reserved on the trial:
"I charge you that, if the evidence convinces you to your reasonable satisfaction that these mules were in good condition when they were first loaded for shipment from Plainview, Tex., to Hartselle, Ala., and if the evidence shows to your reasonable satisfaction that they were damaged in shipment, and if you find from the evidence that when they were received at Hartselle, Ala., they were in bad condition, and you further find that the Southern Railway Company transported them a part of the way from Plainview, Tex., to Hartselle, Ala., as connecting carrier, then, gentlemen, the burden shifts to the defendant to show to your reasonable satisfaction that they were not injured while in the possession of the Southern Railway Company."
In this there was error. The statement of the law in this portion of the charge is the general rule as to the terminal or delivering carrier, not applicable to the intermediate carrier. Montgomery Eufaula Rwy. Co. v. Culver,
The learned judge having fallen into this error, his ruling in granting the motion for new trial in general terms will be referred to this ground of the motion. If, indeed, he had granted it upon mistaken ground, he would still be sustained, if the result was correct.
We cannot sustain the view of appellant that the new trial could not be granted upon this ground for want of proper exception. The several excerpts from the oral charge were excepted to "separately and severally." This was not an exception to all of them in bulk.
In Rarden v. Cunningham,
There was some evidence tending to show the mules were injured in transit; that they were not apparently injured when received by the Southern Railway Company at Memphis, and, when seen in the cars on this company's track at Decatur, some were down in the car, and in a general way injury appeared. But the detailed evidence of the extent of injury was directed to the time of unloading in Hartselle and subsequent developments. Defendant offered no evidence on this issue. Considering the long journey of some nine days, the extent and nature of the injuries, the conditions of weather, and the handling of the mules after unloading, and the natural propensities of the mules, many of them mule colts, the liability of the Southern Railway and of the Louisville Nashville Railroad, and the extent of same, were questions for the jury. Injuries, if any, resulting from the negligence of the Southern leading proximately to the death of the mules after unloading at Hartselle on the Louisville Nashville would be referable to the operation of the Southern. If further injuries resulted proximately from the negligence of the Louisville Nashville including accentuation of injuries already begun, such additional injury would be referred to the operation of the Louisville Nashville.
The rule as to the burden of proof in live stock cases, when the fact of injury on a given line sufficiently appears, is stated in Atlantic Coast Line R. R. v. Carroll Mercantile Co.,
There was error on the main trial in giving the affirmative charge as to operations of the Louisville Nashville Railroad. There was no error in granting a new trial as to liability because of the operation of the Southern Railway. As to this order the cause is affirmed. The judgment is reversed in so far as not vacated by order for a new trial, and the cause remanded for a new trial touching the liability growing out of the operation of both railroads.
Let the appellee pay the costs of appeal.
Affirmed in part, and in part reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.