Plaintiff, appellant, commenced this action December 10, 1919, against the Louisville Nashville and the Alabama Great Southern Railroad Companies. Plaintiff sought to recover damages for personal injuries alleged to have been inflicted by defendants in the operation of a train upon their tracks June 23, 1919. On both the dates noted above, the railroad properties of the defendant companies were being operated by the Director General of Railroads for the government of the United States, and for injuries inflicted as alleged in plaintiff's declaration action lay against the Director General only. Charlton v. A. G. S., 206 Ala. 341, 89 So. 710; Currie v. L. N., 206 Ala. 402, 90 So. 313, 19 A.L.R. 675, March 23, 1920, after the railroads had been returned to their owners, plaintiff, was allowed to amend her complaint by adding the Atlanta, Birmingham Atlantic Railroad Company, Walker D. Hines, Director General, and Walker D. Hines, Agent, as parties defendant. Summons to bring in the new parties was returned, March 27, 1920, by the sheriff, as executed on V. E. Whitaker, agent of the Atlanta, Birmingham Atlantic Company, on Walker D. Hines, as Agent, by leaving a copy with "V. E. Whitaker, agent of the said Walker D. Hines," and as to Hines as Director General the return was "not found." At the time of this amendment, Hines was still Director General of Railroads; but the act of Congress, approved February 28, 1920 (41 Stat. 461) had provided that —
"Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the act of August 29, 1916 [U.S. Comp. St. 1918 (Compact Ed.) § 1974a]) of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against an agent designated by the President for the purpose, which agent shall be designated by the President within thirty days after the passage of this act. Such actions, suits or proceedings may, within the periods of limitation now prescribed by state or federal statutes but not later than two years from the date of the passage of this act, be brought in any court which but for federal control would have had jurisdiction of the cause of action had it arisen against such carrier." Section 206.
At the date of the amendment purporting to bring in new parties, "Walker D. Hines, Director General of Railroads, and his successor in office," had been designated as the Agent provided for in section 206 above quoted.
January 16, 1922, plaintiff amended by substituting "James C. Davis, as Agent appointed by the President of the United States, appointed under the Transportation Act of February 28, 1920 [section 206, supra], in lieu of the defendant Walker D. Hines," Director General and Agent, etc., said Davis having before that time been designated in succession as Director General and as Agent, for the purpose in hand.
On the same day the court, on motion of the several defendant railroad companies, struck their names as parties defendant, and, upon the same day, as appears from the judgment entry, the court sustained the demurrer, that day filed by James C. Davis, Agent, etc., on its second ground, viz.: That it appeared from the complaint that the complaint showed on its face that the cause of action was barred by the statute of limitation of one year.
That the railroad companies were not suable for the injury alleged in the complaint has been firmly settled in the decisions of this court. See authorities cited above. It is also well settled that under our statute *Page 89 of amendment there can be no entire change of parties. Rarden Mercantile Co. v. Whiteside, 145 Ala. 617, 39 So. 576, and the cases there cited. That the effort here was to bring in an entirely new party is made manifest by the considerations which induced the decisions in Charlton v. A. G. S., and Currie v. L. N., supra. It is true that subdivision (d) of section 206 (quoted supra) of the Transportation Act of 1920 provides that —
"Actions, suits, proceedings, and reparation claims, of the character above described pending at the termination of federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the Agent designated by the President under subdivision (a)."
But, as decided in Currie v. L. N., supra, the original complaint in this cause did not evidence a suit pending within the meaning of the federal statute, for the reason that no suit would lie against the railroad companies, and in Rarden Mercantile Co. v. Whiteside, supra, this court stated satisfactory reason, applicable to the case in hand, why the fact that there was an amendment seeking to bring in Hines, as Director General, before the original defendants were stricken, left plaintiff in no better case than she would have been in had all original parties defendant been stricken prior to the amendment. The court perceives no sufficient reason why now it should refuse to follow the several adjudications to which we have had occasion to refer.
In the peculiar circumstances of this case the court attaches no importance to the method by which the result has been reached. The trial court sustained Davis' demurrer on the ground stated above and none other. We place our judgment on a different ground. The defendant Davis had objected to the allowance of the amendment bringing him into the case on the ground that such an amendment worked an entire change of parties as well as upon the ground afterwards stated in the demurrer and sustained by the court, viz.: That any action against him was barred by the statute of limitation of one year. In this case the objection on the ground of the statute of limitation went to the merits of plaintiff's action. L. N. v. Echols, 203 Ala. 627, 84 So. 827; U.S. v. Oregon Lumber Co., 43 Sup. Ct. 100, 67 L.Ed. ___. We do not care to say at this time that the last-stated ground was well taken; but the objection on the ground that the amendment worked an entire change of parties properly raised the question of the liability of the defendant Davis (Springfield Ins. Co. v. De Jarnett,111 Ala. 256, 19 So. 995), and should have been sustained — this at a time when plaintiff's action could not be renewed or maintained because no longer having merit. The result of the court's ruling was proper, whatever may be said of the method by which it was brought about, that result is now conclusive against plaintiff's case, and it could serve no possible good purpose to order a reversal.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.
On Rehearing.