Byrd v. . Davis

Stagy, J. Tbis case was originally decided by us on 16 April, 1924. Since that time the Supreme Court of the United States bas rendered a contrary decision in a case essentially similar to the one at bar, and wbicb we consider a controlling authority on the question bere presented. Davis v. Donovan, 44 Sup. Ct., 513 (decided 26 May, 1924), approving Manbar Coal Co. v. Davis, Agent (Circuit Court of Appeals, Fourth Circuit, 10 March, 1924), 297 Fed., 24, where the question is discussed in a learned opinion by Rose, Circuit Judge. On tbe trial tbe following issue was submitted to tbe jury and answered by them in tbe negative: “Were the three mules, or any of them described in tbe complaint, delivered to tbe Director General of Railroads, operating tbe Atlantic Coast Line Railroad?” Tbe mooted question presented by tbe pleadings and tbe verdict is whether tbe defendant, as Director General of all tbe railroads over wbicb tbe shipment was routed, submitted himself to tbe jurisdiction of tbe court in bis capacity as Director General of tbe initial and connecting carriers, as well as of tbe delivering carrier. Tbe plaintiffs were entitled, as a matter of right, to proceed against tbe defendant only in bis capacity as Director General of tbe Atlantic Coast Line *151 Railroad. As this was the only capacity in which the United States consented to be sued in an action like the present, the defendant’s answer should be construed in conformity with the statute and orders under which such consent was given, and not otherwise. St. Louis, B. & M. Ry. Co. v. McLean, 253 S. W., 248. No liability having been established against the defendant in the capacity in which he was served, or in which he answered, it follows that our former decision granting a new trial must be reversed, and the judgment of the Superior Court dismissing the action as originally rendered will be affirmed. Petition allowed.