The appellee, a partnership, sued the St. Louis-San Francisco Railroad Company, Central of Georgia Railway Company, and John Barton Payne, as Director General of Railroads. The suit was commenced on February 23, 1921, after government control and operation of railroads had terminated. Three counts, in code form, were employed to state a cause of action ex contractu (N.C. St. L. v. Parker, 123 Ala. 683, 27 So. 323; Code form 15, Civil Code, p. 1197), for the delivery of a mule in an injured condition, the animal dying some days after delivery at destination. Subsequently Payne, as Director General, was eliminated, and "James C. Davis, as Director General of Railroads and Federal Agent liquidating claims growing out of government operation" of the two railways named as codefendants with the Director General, was substituted. The receipt, in Missouri, for transportation of this mule, along with 20 others in the same car, and their delivery in Alabama took place in January, 1920, at a time when these railroads were being operated exclusively by the United States. For breaches of contract during governmental control and operation, and for tortious wrongs thereby suffered, the Director General, not the railroad corporation, was alone liable. Missouri Pacific v. Ault, 256 U.S. 554, 41 Sup. Ct. 593, 65 L.Ed. 1087; Charlton v. A. G. S., 206 Ala. 341, 89 So. 710, among others in that line.
These railway companies, sought to be made codefendants with the Director General, should have been eliminated as parties defendant. The complaint in two, if not in all three, counts averred that these railway companies and the Director General contractually, jointly, undertook "as common carriers" to receive and transport this car of mules. These material features of the counts were not sustained in any degree by *Page 316 the evidence. Indeed, the exclusive governmental control and operation of these railways prevented the existence of any such character of evidence. Having averred a joint contractual undertaking, and failing in any degree to support such material allegation, the plaintiff (appellee) was not entitled to recover against any of the defendants, the variance being fatal. Garrison v. Hawkins Lumber Co., 111 Ala. 308, 311,20 So. 427; Harris v. Sanders, 186 Ala. 350, 353, 65 So. 136, among others.
The application of the indicated doctrine of the Ault and Charlton Cases to the action of the court in sustaining demurrer to the fourth plea interposed by the Central of Georgia Railway Company, averring that its railway line was under federal control, not operated by the railway company, requires the conclusion that the court erred in so ruling. Following remandment after this reversal, the complaint may, without effecting a departure in pleading, or an entire change of parties, or the introduction of a new cause of action (Code of Ala. 1907, § 5367), be amended by eliminating the railways as parties defendant, and by so conforming the complaint as to sue James C. Davis as liquidating agent; the action having been brought originally against Director General Payne and the railway companies, and later, by amendment made without objection, Davis was substituted in his official capacity. The cause of action declared on in all three counts was the same, this regardless of the erroneous description of the parties to the contract of carriage.
It is insisted for appellants that there was no evidence tending to show that the animal was in good condition when loaded on the car in Missouri, and that there was no evidence tending to fix, in any degree, the place or occasion of the animal's injury. Neither of these contentions is well founded. A witness for plaintiff testified that the mule was sound on January 12, 1920, when he examined it in Missouri. This mule, with 20 others, was placed in the car on January 16th or 17th, four or five days later. In the absence of evidence to the contrary, it was open to the jury to infer that the injury was not inflicted between January 12, 1920, and the date of delivery, loading for transportation, and hence to conclude that the mule was in good condition, uninjured, when loaded and received for transportation. A witness, resident at Birmingham, Ala., testified that he inspected these mules when unloaded temporarily in Birmingham and that this one, as well as the others in the car, was in good condition and uninjured so far as he could detect. If the mule was in good, uninjured condition at Birmingham, and if it was injured when unloaded at Camp Hill, it was open to the jury to find that the injury was suffered en route between Birmingham and Camp Hill. While these circumstances are inconclusive in the premises, they were factors in the inquiry that required the service of the jury to solve.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.