We concur in the conclusion of THOMAS, J. in the affirmance of this case, but not in the treatment of same in his opinion, that is, as to improper parties. In the first place, it may be debatable as to whether or not this appellee can suggest this point on this appeal, as it won the case in the court below, and did not take a cross-appeal or assign error as to the trial court's action in not substituting the other defendant, but this right may be conceded, and we still think that this appellee was not entitled to the general affirmative charge because not suable upon this cause of action.
The federal statute, in taking over and assuming control of the railroads as a war measure, expressly authorizes this suit against the Louisville Nashville Railroad Company and it is doubtful if an order subsequently made by the Director General of Railroads can annul or suspend the act of Congress so as to deprive a plaintiff of the right to sue thereunder. At any rate, this was a pending suit at the time the order in question was promulgated, and said order merely gives the plaintiff the option of amending the pleading so as to make the Director General of Railroads the party defendant. The order was not mandatory in this case, and the suit was tried without error against the railroad company as defendant. L. N. R. R. Co. v. Johnson, 204 Ala. 150, 85 So. 372.
We, of course, realize that where a suit is brought or amended against the Director General, pursuant to his order, and is defended by the government or by him for the government without objection or invocation of the federal statute, the judgments rendered in such cases should not be disturbed. Hence the ruling in the case of L. N. R. R. Co. v. Johnson, supra, is reconcilable with the case of Hines v. Wimbish, 204 Ala. 350,85 So. 765. In the former, the plaintiff sued the railroad company as authorized by the said federal statute. In the latter, the plaintiff sued the Director General in compliance with his order, and it was defended without questioning the plaintiff's right to maintain the suit against him in his representative capacity. A point was made in the Hines Case, supra, that the suit was against Hines individually, and not as Director General, but it was not there insisted or contended that the suit could not be maintained against the Director General. The taking over the railroads being a war measure, and as the roads have now been restored to the owners thereof, the question here involved cannot well arise again, except for injuries arising when the roads were under government control, but it is sufficient to say that judgments obtained against the railroad company will not, for that reason, be disturbed because the federal statute authorizes same. Those procured against the Director General will not be disturbed when it appears that the suit was brought pursuant to his order and the right to be sued was not questioned by him.
We think, however, that this case must be affirmed upon the merits. The only insistence made in brief of counsel for appellant for reversal of this case is that count 8 of his complaint was proven, that is, that the evidence was such as to have required submission of same to the jury. Whether count 8 would be good as against an appropriate demurrer we do not determine, but we concede that if there was enough proof to support the material averments of same, whether slight or great, the case should have been submitted to the jury. It is rather difficult to determine the exact nature or character of count 8, that is, whether it proceeds under the federal Employers' Act (U.S. Comp. St. §§ 8657-8665) or is based upon the common law for the maintenance of a dangerous agency by the defendant upon its premises, and for the natural results of which it would be answerable. Should it be treated as under the federal statute, the proof fails to show that either deceased or the crazy man were at the time of the homicide actually engaged in interstate commerce. Upon the other theory, we do not think that the evidence shows any knowledge on the part of the defendant that this unfortunate homicide would naturally or probably result from permitting Parrish to remain upon its premises. While there was proof of knowledge by the defendant's servants or agents as to his mental derangement, there is nothing to show that his mania was of a dangerous or homicidal character. Arlington Hotel Co. v. Tanner, 111 Ark. 337,164 S.W. 286.
McCLELLAN, SAYRE, SOMERVILLE, and GARDNER, JJ., concur in this opinion and the result.
BROWN, J., concurs in the first proposition, but dissents as to the result upon the merits, and thinks there was sufficient evidence in *Page 123 support of the complaint to take the case to the jury, and that the case should therefore be reversed.
THOMAS, J., concurs in the result for reasons given in his individual opinion.