The action is for personal injuries suffered by plaintiff in a collision with defendant's train of cars at a public road crossing. The complaint contains several counts declaring on simple negligence, which were eliminated from consideration by the trial court, and the cause was *Page 592 submitted to the jury on count 3 only, declaring upon wanton negligence, and claiming damages for various injuries enumerated.
Count 3 is clearly sufficient as a wanton count, and is not subject to any of the grounds of demurrer. M. C. R. Co. v. Martin, 117 Ala. 367, 23 So. 231; So. Ry. Co. v. Crenshaw,136 Ala. 573, 34 So. 913.
Some of the instructions requested by defendant, and refused by the trial judge, deny the liability of the federal government, when sued through the medium of its designated agent, the Director General of Railroads, for punitive damages under a count for wanton negligence in the operation of railroad trains; and deny also any right of recovery against the Director General under a wanton count.
In the leading case of Missouri Pac. R. Co. v. Ault,255 U.S. 554, 41 Sup. Ct. 593, 65 L.Ed. ___, it was expressly declared that "the purpose for which the government permitted itself to be sued was compensation, not punishment"; and, further, that —
"Wherever the law permitted compensatory damages they may be collected against the carrier while under federal control. * * * But double damages, penalties and forfeitures, which do not merely compensate but punish, are not within the purview of the statute."
Following the plain rule announced in that decision, we are constrained to hold that the defendant in this case, the Director General representing the federal government, is not liable for punitive damages, and that the trial judge erred in refusing to so instruct the jury at defendant's request, and also in affirmatively instructing them that such damages could be awarded.
The authority cited is, of course, conclusive; but it may be noted that the Supreme Court of South Carolina has also decided without reference to the Ault Case, that the Director General cannot be sued for willfulness (Rowell v. Hines, Director General, 114 S.C. 339, 103 S.E. 545), and that he cannot be held to respond in punitive damages (Ginn v. U.S. R. R. Administration, 114 S.C. 236, 103 S.E. 548).
In this state, the plaintiff may recover compensatory as well as punitive damages under a count for wanton negligence. Clinton Min. Co. v. Bradford, 200 Ala. 308, 76 So. 74, headnote 13.
The Ault Case, supra, does not hold that the Director General is not liable for acts of wanton negligence on the part of his employés, but only that he cannot be held liable for punitive damages — which is quite a different proposition.
In the absence of any ruling to the contrary by the federal Supreme Court we are of the opinion and so hold that the plaintiff in this case could recover compensatory damages if he sustained by satisfactory proof the charge of wanton negligence.
The trial court properly allowed plaintiff, by amendment, to substitute the name of John Barton Payne for the name of his predecessor, William G. McAdoo, as Director General of Railroads. The amendment continued the suit against the same officer, and did not work a change of the party defendant. Such an amendment seems to be expressly authorized by sections 206a and 206d of the Transportation Act of 1920 (41 Stat. 461, 462).
Defendant was entitled to the instruction requested by him, that there could be no recovery in this case for simple negligence, and its refusal was error. The error was without prejudice, however, as the jury were clearly so instructed in the oral charge.
As the case was submitted to the jury, the burden of proof was on plaintiff to show that defendant wantonly ran its locomotive upon him and thereby wantonly caused his injuries. And if that burden were met by plaintiff, then a recovery could be defeated only by evidence which showed to the reasonable satisfaction of the jury that plaintiff was himself guilty of contributory negligence which amounted to wanton self-injury, as alleged in special plea 10. Whether or not that plea presented a proper issue we are not called upon to determine on this appeal.
At defendant's instance the trial judge instructed the jury that neither a failure to blow the whistle, nor a failure to ring the bell, nor the speed of the train, before the peril of the plaintiff became manifest, or ought to have been manifest, under the evidence, is evidence of wanton, reckless, or intentional misconduct on the part of defendant's servants. Under our decisions, the omissions specified in this charge are, per se, but simple negligence, and the instruction was, of course, proper. Weatherly v. Nashville, etc., Ry. Co., 166 Ala. 575,51 So. 959, 962.
Whether or not, on the issue of wanton negligence, the failure of the engineer to give the statutory signals of his approach to this crossing — as some of the testimony tended to show — was connected with other circumstances and conditions that could amount in combination to wantonness, is a question we need not now determine.
The record presents a great many assignments of error relating to refused charges, rulings on the evidence, and on objections to the argument of plaintiff's counsel, which we do not pass upon, as they may not recur on another trial.
For the error noted, the judgment will be reversed and the cause remanded.
Reversed and remanded.
McCLELLAN, THOMAS, and MILLER, JJ., concur. *Page 593