DocketNumber: 6 Div. 736.
Citation Numbers: 98 So. 792, 210 Ala. 538
Judges: THOMAS, J.
Filed Date: 1/17/1924
Status: Precedential
Modified Date: 1/11/2023
The first appeal in this case is reported as L. N. R. Co. v. Heidtmueller,
After the case was reversed and remanded to the circuit court, there was an attempt to conform to the holding in Mo. Pac. R. R. Co. v. Ault,
It should be stated, of the original status as to parties defendant, that they were Louisville Nashville Railroad Company, a corporation, and J. D. Jessie, the engineer in *Page 539 charge of its locomotive running into or against plaintiff's intestate; and each of said parties filed demurrer to the complaint. On December 28, 1918, the motion and notice of defendant Louisville Nashville Railroad Company's attorneys was to the effect that under General Order No. 50 it would substitute "W. G. McAdoo as Director General of Railroads as a party defendant for and in the place of the Louisville Nashville Railroad Company as a party defendant and to dismiss said cause as against the said Louisville Nashville Railroad Company as a defendant;" and on February 13 the motion was made (by Louisville Nashville Railroad Company) to substitute Walker D. Hines, as Director General, etc., which was overruled on February 14, 1919. Additional demurrers were filed by defendants Louisville Nashville Railroad Company and J. D. Jessie on the same day, and sustained to some counts of the complaint and overruled as to other counts. Pleas were filed, and demurrer sustained thereto. The first trial resulted in verdict and judgment for plaintiff, appeal, reversal, and remandment of the case January 13, and the application for a rehearing was denied on May 16, 1921.
At the July term, 1921, of the court, the Louisville Nashville Railroad Company, having withdrawn all its pleadings, filed "motion to dismiss this suit as to it," and that motion was "granted, and said cause dismissed as to the defendant Louisville Nashville Railroad Company, and plaintiff excepts. Thereupon plaintiff amends his complaint by adding James Davis, as Agent of the United States, etc., as a party defendant; and the cause was continued by the plaintiff." No assignment of error challenges the action of the trial court in granting the motion to dismiss the suit as to Louisville Nashville Railroad Company.
Thereafter the defendants shown by the record proper were "James Davis, Agent, under Transportation Act, etc., and J. D. Jessie." On January 3, 1922, said Davis, as Agent, moved the court to require plaintiff to elect between two causes pending, and claiming damages for the same injury, between the same parties, which motion was overruled; and demurrers to several counts of the complaint as amended were sustained. Thereupon the judgment entry of date January 4, 1923, recites:
"Plaintiff amends complaint by striking out J. D. Jessie and by adding counts E and F. Thereupon defendant files demurrers to the complaint as last amended, which said demurrers being submitted to the court, and duly considered and understood by the court, it is ordered and adjudged by the court that said demurrers be and hereby are sustained. And, the plaintiff declining to plead further, it is considered and adjudged by the court, that judgment be and hereby is rendered for the defendant in this cause."
Wherefore the appeal by plaintiff.
The cases of James v. Davis, Director General,
The real question of moment is presented by the sustaining of demurrer to count E of the complaint, as last amended, after the striking therefrom of J. D. Jessie as a party defendant. If the action was then for the recovery of a penalty, the ruling of the trial court was justified under decisions of this court and the Supreme Court of the United States. Mo. Pac. R. R. Co. v. Ault,
In Howard v. Davis, Director General,
The right of the administrator to sue is by reason of the statute, and, as it has been construed in this state, provides for punitive *Page 540
damages only. Alabama Power Co. v. Stognor,
The expressions contained in Southern Ry. Co. v. Bush,
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.