Illinois Cent. R. v. Johnston 205 Ala. 1, 87 So. 866

McCLELLAN, J.

As appears from the foregoing statement, tire pilaintiff sued the railway company (appellant) for damages for personal injuries resulting from the derailment of an interstate passenger train. The action is against an interstate carrier, by a plaintiff who avers that he was, at the time, in the employ of the-railway company and then discharging his duties, in interstate commerce, under that employment. The record has been accorded very careful consideration by all of the members of the court; its entire contents being submitted first hand to the judges in consultation. Particular scrutiny and deliberation has been given the whole evidence presented on the main trial and that laid before the court in connection with the motion ,for a new trial.

1. It is insisted for appellant that the trial court erred in overruling the demurrer to the replication to pleas 2 and A, reproduced in the statement ante. These pleas set up a release of liability, signed by the plaintiff. Unless avoided, the release was a bar to recovery in this action. Disclosing two readily distinguishable aspects, the replication sought to avoid the release pleaded by the averment, in the one aspect, that the plaintiff was ignorant of its contents; that he did not know it was what it purported to be; that the defendant’s agents misrepresented its contents; 'that he was deceived of its contents ;• and that the named agent of defendant practiced a fraud upon him; and, in the other aspect, the replication asserted a want of. consideration for the release, this by averring that the money, alleged in the pleas and recited in the instrument of release to have been received for the discharge from liability of both the defendant and the American Express Company, was not given or received, as a consideration for the release, but, on the contrary, was h pure gift to plaintiff. The only objections taken to the replication are those noted in the grounds of demurrer set out in the preceding statement of the case. There is no ground of demurrer taking the point that the replication improperly joins two distinct matters in avoidance of pleas 2 and A. Berlin Mach. Works v. Ewart Co., 184 Ala. 272, 281, 63 South. 567; Highland Avenue & Belt Railroad Co. v. Dusenberry, 94 Ala. 413, 10 South. 274. The doctrine of these decisions is at least an apparent departure from the pertinent rule stated in Houston v. Hilton, 67 Ala. 374, and Bolling v. McKenzie, 89 Ala. 470, 7 South. 658. among other earlier pronouncements. To the grounds assigned will the review here be confined on this phase of the case.

[1-5] If the money received by the plaintiff was a gift, affording no consideration for the release asserted in pleas 2 and A, the plaintiff was under no duty to restore the money, so received, as a condition to his avoidance of the release. West. Ry. of Ala. v. Arnett, 137 Ala. 414, 426, 34 South. 997: B. R. L. & P. Co. v. Jordan, 170 Ala. 530, 537, 539, 54 South. 280. In consequence, the demurrer’s grounds 1, 2, 8, 11, 12, and 22 were not well faken. In the brief for appellant it is urged that the replication was deficient in this particular: That it did 'not aver that the misrepresentations alleged induced the plaintiff to sign the instrument. Since there is no ground of demurrer tak*5ing this objection to the replication — our statute (Code, § 53-10) requiring the specification of objections to pleading — this criticism of the replication cannot avail the appellant. The fraudulent misrepresentation of the contents of an instrument by a party thereto, or by his agent taking the instrument, affords grounds to avoid the instrument’s effect notwithstanding the signator neglected to read the instrument. West Ry. of Ala. v. Arnett, supra; Burroughs v. Pac. Guano Co., 81 Ala. 255, 258, 1 South. 212. The invalidating effect of the replication’s averments with respect, to the misrepresentations described therein cannot be avoided by the mere fact that plaintiff did not read the paper before signing it. Burroughs’ Case, supra. Hence, the grounds of demurrer asserting, in effect, plaintiff’s duty to have read the paper were not, under the allegations of this aspect of the replication, well taken. Like considerations justified the action of the court in refusing special requests for'instructions that would have concluded the plaintiff because of his neglect to read the release asserted in pleas 2 and A. When the replication is considered in the light of the averments of the respective pleas to which it was addrest — pleas asserting the very release to which the replication refers — it is entirely clear that the allegations of the replication were sufficient to charge Stone, as defendant’s agent in the premises, with the fraudulent conduct upon which the replication, in this aspect, relied. In these circumstances, there was no necessity or occasion otherwise to aver Stone’s authority in the premises. The replication was not subject to any ground of this demurrer, and the trial court, being confined to action upon the grounds of demurrer assigned, did not err in overruling the demurrer.

2. The next question (and, with another raised by the motion for a new trial, the important inquiry presented for review) is whether there was any evidence that the relation of master and servant existed between the railway company (defendant-appellant) and the plaintiff at the time the plaintiff was injured.

[6] The allegation in the complaint being that plaintiff was an employee of the railway company (defendant) and engaged in interstate service, the positive, substantive law governing the rights and liability vel non of the parties is the amended federal Employers’ Liability Act. Acts of Congress 1908, c. 149, 35 Stat. 65, as amended in 1910, c. 143, 36 Stat. 291 (U. S. Comp. St. §§ 8657-8665). That enactment is paramount and exclusive within the field of its operation. L. & N. R. R. Co. v. Carter, 195 Ala. 383, 385, 70 South. 655, Ann. Cas. 1917E, 292, and Ex parte Atl. Coast Line R. Co., 190 Ala. 132, 67 South. 256, where the decisions of the Supreme Court are noted. The right this plaintiff would assert and have vindicated is, hence, a right created by the federal act; and the inquiry stated above, in this connection, is a federal question, and its decision here is subject to review by the Supreme Court of the United States. C. & O. Ry. Co. v. De Atley, 241 U. S. 310, 317, 36 Sup. Ct. 564, 60 L. Ed. 1016; M., K. & T. Ry. Co. v. West, 232 U. S. 683, 34 Sup. Ct. 471, 58 L. Ed. 795; L. & N. R. R. Co. v. Holloway, 246 U. S. 525, 529, 38 Sup. Ct. 379, 62 L. Ed. 867. Where a state court decides the inquiry, whether there is any evidence supporting a material issue in an action subject to the exclusive government and control of the federal Employers’ Liability Act, a federal question of law is presented for review, and will be reviewed, on error to the Supreme Court. C. & O. Ry. Co. v. De Atley, supra, 241 U. S. 310, 316, 317, 36 Sup. Ct. 564, 60 L. Ed. 1016; L. & N. R. R. v. Holloway, supra. In actions like this the service performed by the state courts, trial and appellate, is in administration of the federal act; and the discharge of this duty in the’ domain of the exclusive federal authority governing the substantive rights of the parties requires recognition that the national laws statutory and decisional — not the state law — is paramount in the premises. As respects matters of “practice and procedure” only — matters pertaining to the remedy merely- — the local law, the procedural law of the forum, is applicable and is due to be observed in the conduct of causes subject to the federal Employers’ Liability Act. Central Vermont Ry. v. White, 238 U. S. 507, 511 et seq., 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252; C. & O. Ry. Co. v. De Atley, supra, among others.

[7] It is contended in brief for appellant-in part, if not chiefly in point of premise, upon the definition of the pertinent rule to be later quoted from Commissioners, etc., v. Clark, 94 U. S. 278, 284, 24 L. Ed. 59 — that in determining, at nisi prius, the legal inquiry raised by appropriate, requested instructions, whether there is any evidence supporting averments necessary to be established by a plaintiff v.'hose right to recover is subject to the government and control of the federal Employers’ Liability Act, the federal rule (stated in Commissioners, etc., v. Clark, supra), not the rule prevailing in Alabama, commonly called the “scintilla rule” (see 6 Ency. PI. & Pr. pp. 675-678, noting Alabama decisions; 2 Thompson on Trials, § 2246, pp. 1599, 1600), should be observed in passing upon such requested instructions as would withdraw the ease from the jury’s consideration, in effect directing a verdicr for defendant. If the appellant’s stated contention involves “practice and procedure" merely, it could not be well founded, Author, supra. Whether such is the category to which the proposition is to be referred, is *6the primary and controlling consideration. It is manifest that the gist of the inquiry thus made is whether the plaintiff has discharged the burden of proof assumed by him in his pleading and imposed by the federal act (Robinson v. B. & O. R. R. Co., 237 U. S. 84, 94, 35 Sup. Ct. 491, 59 L. Ed. 849) in respect of the material averment that the contractual relation (Robinson’s Case, supra) of master and servant existed at the. time alleged, there being no presumption that the relation did exist (Mathews v. A. G. S. R. Co., 200 Ala. 251, 76 South. 17, 19). The Supreme Court said in N. O. & N. E. R. Co. v. Harris, 247 U. S. 367, 371, 372, 38 Sup. Ct. 535, 62 L. Ed. 1167, following and applying the doctrine of its deliverance in Cent. Vermont Ry. Co. v. White, 238 U. S. 507. 511, 512, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252:

“In proceedings brought under the federal Employers’ Liability Act rights and obligations depend upon it and applicable principles of common law as interpreted and applied in federal courts; and negligence is essential to recovery. * * * These established principles * * * we think make it clear that the question of biirdo.n of proof is a matter of substance and not subject to control by laws of the several states” (Italics supplied) — this in denial of the application of a Mississippi statute providing that where the injury complained of was shown to have been inflicted by railway instrumentalities, among other agencies, the fact of injury made a prima faeie case of want of reasonable skill and care.

To the same effect is Y. & M. V. R. R. Co. v. Mullins, 249 U. S. 531, 39 Sup. Ct. 368, 63 L. Ed. 754.

Under those decisions the matter of burden of proof is regarded as of the substance of the right created by tbe federal act and is, hence, without the category of “practice and procedure” that otherwise is subject to the control of the local law, the law of the forum. The necessary result is that the inquiry, raised by appropriate request for instructions against the right of the plaintiff to recover, is whether the burden of proof has been met or discharged in a particular ease; whether sufficient evidence has been adduced to justify or require the submission of the issue to the jury; and is to ba measured and decided at nisi. prius under the federal rule, to be later restated, rather than under the “scintilla rule” (where tha slightest evidence or inference therefrom requires submission to the jury) prevailing in Alabama in the trial of causes unaffected by federal law. The federal rule under consideration is thus stated in Commissioners, etc., v. Clark, 94 U. S. 278, 284 (24 L. Ed. 59):

“Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of j such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Ryder v. Wombell, Law Rep. 4 Exch. 39.

“Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit, that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.”

This pronouncement has been often reiterated, notably in Bowditch v. Boston, 101 U. S. 16, 18, 25 L. Ed. 980, and its application illustrated in the federal courts. Dernberger v. B. & O. R. Co. (D. C.) 234 Fed. 406, 407, where many cases are noted. See, also, 9 Rose’s Notes (Rev. Ed.) pp. 599, 603. “Literally no evidence” is not the exaction of the federal rule, as it is under the “scintilla rule” obtaining in Alabama. It has been long settled in the federal jurisdiction that a defendant is entitled to have a verdict directed in his behalf if the measure of evidence required by the federal rule Is not presented to the court in discharge of the plaintiff1's burden of proof on a matter material to his ease. Bowditch v. Boston, supra; Delaware R. R. Co. v. Converse, 139 U. S. 472, 11 Sup. Ct. 569, 35 L. Ed. 213. In Meguire v. Corwine, 101 U. S. 108, 111 (25 L. Ed. 899) it was said: “A judge has no right to submit a question where the state of the evidence forbids it.” In North Penn. R. Co. v. Bank, 123 U. S. 727, 733, 8 Sup. Ct. 266, 31 L. Ed. 287, this was the observation: “It would be an idle proceeding to submit the evidence to the jury when they could justly find only one way.” Whether the requirement of the federal rule, as a condition to the right to submit the matter in issue to the jury, has been met by the party on whom rests the burden of proof, is a preliminary inquiry addressed to the judge, who, it is said in Patton v. T. & P. Ry. Co., 179 U. S. 660, 21 Sup. Ct. 275, 276 (45 L. Ed. 361), “is primarily responsible for the just outcome of the trial” — the' judge being charged under that jurisprudence “with full responsibility” In the premises. This view of the applicability of the stated federal rule, rather than of the local rule, with respect to the discharge vel non of the burden of proof under the federal Employers’ Liability Act, is necessary to an orderly, uniform administration of the matters of substance created by that act. Otherwise, there would be no uniformity in state jurisdiction — called to enforce the federally created right (Minn. & St. L. R. R. v. Bombolis, 241 U. S. 211, 36 Sup. Ct. 595, 60 L. Ed. 961, L. R. A. 1917A, 86, Ann. Cas. 1916E, 505) — where the “scintilla *7rule of evidence,” rather than the stated federal rule, prevails. In state jurisdictions observing tbe “scintilla rule” an undeserved privilege would be accorded a plaintiff, appropriately asserting a right under the federal act, to institute his action in the tribunal exacting a less degree or measure of evidence to discharge, to the extent of requiring submission to the jury of a matter material to the issue, of his burden of proof. The following decisions, noted on brief for appellee, hold that the rule of the forum, the local law, not the stated federal rule, is applicable in the trial of such actions in the state courts: L. & N. R. R. Co. v. Johnson’s Adm’x, 161 Ky. 824, 171 S. W. 847; Dutton v. A. C. L. R. Co., 104 S. C. 16, 88 S. E. 263; L. & N. R. R. Co. v. Holloway’s Adm’r, 163 Ky. 125, 173 S. W. 343; Mulligan v. A. C. L. R. Co., 104 S. C. 173, 88 S. E. 445— decided by the courts of Kentucky and South Carolina. These deliverances did not, of course, take proper account of the now, later-established fact (N. O. & N. E. R. R. Co. v. Harris, supra) that the burden of proof, under the federal Employers’ Liability Act, is a matter of substantive right, not pertaining to practice and procedure merely. The writer entertains the opinion that the stated federal rule, and not the “scintilla rule of evidence” obtaining in the courts of Alabama, should govern in determining whether the plaintiff had so far supported his material allegation of the existence, at the time of the injury, of the relation of servant to this defendant as master as to have justified the trial court in refusing the defendant’s requests for general affirmative instructions against a recovery by plaintiff. The concurring justices are, however, of the- opinion that, since reversal of the judgment must enter because of the error committed in overruling the motion for new trial, it is not necessary to consider or to decide at this time what rule, federal or state, should govern in determining the propriety vel non of the trial court’s action in refusing the requested general affirmative instructions.

[8] Recurring to the consideration of the merits of the question, whether the relationship averred existed at the time the plaintiff was injured: It has been decided by the Supreme Court of the United States that the test to determine the existence vel non of the relation of master and servant is whether the asserted employer “retains the right to direct the manner in which the business shall be done, as well as the result to bo accomplished, or,®in other words, not only what shall be done, but how it shall be done,” it being necessary carefully to distinguish “between authoritative direction and control, and mere suggestion as to details.; * * ” Railroad Co. v. Hanning, 15 Wall. 649, 656 (21 L. Ed. 220); Singer Mfg. Co. v Rahn, 132 U. S. 518, 522, 523, 10 Sup. Ct. 175, 33 L. Ed. 440; Chicago, etc., Co. v. Bond, 240 U. S. 449, 456, 36 Sup. Ct. 403, 60 L. Ed. 735; Standard Oil Co. v. Anderson, 212 U. S. 215, 227, 29 Sup. Ct. 252, 53 L. Ed. 480; New Orleans, etc., Co. v. United States, 239 U. S. 202, 206, 36 Sup. Ct. 76, 60 L. Ed. 227; Harrell v. Atlas, etc., Co., 250 Fed. 83, 95, 96, 162 C. C. A. 255; The Squire, 248 Fed. 469, 471, 160 C. C. A. 479. It results from the decisions of the Supreme Court that, if the control defined in , the quotation ante is not present, the person asserted to be the servant of a particular master (especially as between two apparent masters) does not bear that relation to such master. The fact that the inquiry arises in a case where a defendant is sought to be held responsible, under the doctrine of respondeat superior, for negligently inflicted injury or damage to a third person, cannot avail to avert the discriminative application of the test stated. The principle is to be accorded influence, and, in proper eases, controlling operation wherever the inquiry involves the judicial affirmation or denial of the existence of the relation of master and servant with respect to any particular event or transaction. In Standard Oil Co. v. Anderson, 212 U. S. 215, especially 220 et sec., 29 Sup. Ct. 252, 53 L. Ed. 480, it was, in effect, affirmed that power to select, employ, compensate, and discharge do not conclude against the existence of the relation of master and servant between the person rendering the particular service and another to whose control, as stated, the person rendering the particular service, at the time, was subject. Evidence directed to showing the power in one to select, employ, compensate, and discharge the person whose status is under investigation, is, of course, serviceable to establish the existence of the relation such powers naturally conduce to prove. 1 Labatt on Master & Servant, § 18. pp. 56-60. In the absence of explanation, it is inferable, prima facie, that a person found doing a service for another is in that other’s employ. Wood on Master & Servant (2d Ed.) § 306; Perry v. Ford, 17 Mo. App. 212, 220; McCann v. N. Y. Cent., 66 Barb. (N. Y.) 338; 26 Cyc. p. 1410, subd. 3. But this rule is denied application or effect in the present instance, because there is “no absence of explanation.” The motion for new trial contained the grounds that the verdict was contrary to the evidence or the great preponderance of the evidence. The plaintiff’s injury, in the wreck of an interstate passenger train operated by the defendant, when he was in the actual discharge of his duties as sole baggagemaster on that train, having been shown, one of the two main issues was whether plaintiff bore to the defendant the relation he averred. From a review of the whole evidence adduced on the main trial, these conclusions of fact were indisputably established: (a) That in response to application made by plaintiff tO' the American Express Company (not to the *8railway company) the express company gave plaintiff a position and assigned him to the interstate run on which he was injured; (b) that his monthly compensation was paid by the express company; (c) that his duties In that service, where he acted as express messenger and sole baggagemaster, were defined to him by the express company; (d) and that the express company, alone, had the power to discharge him. The evidence relating to plaintiff’s connection with the Birmingham office of the American Express Company after his injury, that relating to money paid him either as a gratuity or as salary for service rendered after his injury, and that relating to the character of pay roll or receipt (other than the release set out in pleas 2 and A), were without influence upon tire issue of plaintiff’s employment vel non by the railway company at the time of his injury. The testimony of plaintiff, himself, does not admit of an interpretation that money paid him after his injury was a sum or sums, constituting salary, to which the railway company contributed as salary for plaintiff. The plaintiff, himself, testified, and so averred in his replication, that money paid him by the express company after his injury, while he was unable to work, was a mere gratuity.

The statement of plaintiff in response to the question, “What was your employment on November 18, 1913?” that “he was train baggagemaster on the Illinois Central Railroad for the Illinois Central Railroad Company,” was to this effect only: To show what work he was doing on the date, stated — a fact that did not indicate, with any definiteness under the whole evidence, whether he was at the time the employee of the express company or the railway company. It was not, itself, inconsistent with employeeship to the express company and in that relation doing work, at the instance and under the superior direction of the express company, for the railway company. According to the test before restated, whereby it may be determined whether the relation averred existed at the time plaintiff was injured, the power of authoritative, detail control over plaintiff’s discharge of the duties of express messenger and sole baggagemaster on the train was. shown by the great weight of the evidence to be in the express company. The only fact or circumstance opposed, in any degree, to this conclusion, is that, under the undisputed evidence, this plaintiff was required to make report as baggagemaster to the general baggage agent of the defendant at Chicago, 111. This fact, considered alone, was capable of raising an inference that this duty to report implied a right in the railway company to control the details of the work performed by the plaintiff in respect of the discharge by him of the duties referable to the subject of such report. This possible inferenbe is, in itself, weak and inconclusive when considered in connection with the other evidence. It may have consisted entirely with the existence of “authoritative direction and control” in the American Express Company, the railway company having but the right of “mere suggestion as to details.” Railroad Co. v. Hanning, supra, and other decisions before cited. Taking due account of this duty to report, this court’s opinion is that, under the familiar rule of Cobb v. Malone, 92 Ala. 630, 635, 9 South. 738, the trial court erred in overruling the motion for new trial because the overwhelming weight of the evidence, after “allowing all reasonable presumptions” in favor of the jury’s conclusion, went to prove that the plaintiff did not, at the time of his injury, bear the conventional relation of employee to the railway company as his employer, the essence oí such relation being one of contract, express or implied.

For the error indicated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and SOMERVILLE, J.J., concur.

GARDNER, THOMAS, and BROWN, JJ., dissent.

On Rehearing;

BROWN, J.

This action is by the appellee, Johnston, against the Illinois Central Railroad Company, a common carrier of interstate commerce, for personal injuries alleged to have been received by the plaintiff on the 18th day of November, 1913, as a proximate result of the defendant’s negligence, and, as alleged in the complaint, while plaintiff was employed by defendant in such commerce, and is rested upon the provisions of the federal Employers’ Liability Act of April 22, 1908 (35 Stat. C. 149 [Comp. Stat. §§ 8657-S665]).

The plaintiff (appellee here) concedes that it is essential to his right to recover under this act that the burden is on him to show that he was an employee of the defendant and engaged in interstate commerce at the time he was injured; this being one of the essential averments of his complaint. Hull v. Philadelphia Ry. Co., 252 U. S. 475, 40 Sup. Ct. 358, 64 L. Ed. 670; Robinson v. Balt. & Ohio R. R. Co., 237 U. S. 84, 94, 35 Sup. Ct. 491, 59 L. Ed. 849.

[9] On original consideration of the questions presented by the action of the court on the motion for new trial, it was ruled that the defendant had not acquitted itself of negligence with respect to its failure to discover and present the alleged newly discovered evidence on the trial. K. C. M. & B. R. R. Co. v. Phillips, 98 Ala. 159, 13 South. 65; McClendon v. McKissack, 143 Ala. 188, 38 South. 1020; Sou. Ry. Co. v. Wildman, 119 Ala. 565, 24 South. 764. This ruling necessarily lays out of view the alleged newly discovered evidence and the question now to be considered *9must be determined from the evidence offered on the trial and submitted to and considered by the jury.

The sole ground on which the reversal of the judgment was awarded was that the evidence offered by the plaintiff was wholly insufficient to warrant the jury in finding that the plaintiff was an employee of the defendant at the time he was injured. Therefore, for the purposes of this case, assuming that the burden of proof is of the substance of the right of action given by the federal act, and that the federal rule which requires that the evidence- offered by the plaintiff must be such as will warrant the jury in proceeding to a verdict in favor of the plaintiff (Rider v. Wombell, Law Rep. 4 Exch. 39; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980; Delaware R. R. Co. v. Converse, 139 U. S. 472, 11 Sup. Ct. 569, 35 L. Ed. 213), and not the “scintilla rule,” applies, we will proceed to re-examine this question.

The evidence shows without dispute that the train, the derailment .of which resulted in inflicting the injuries on the plaintiff, was a passenger train operated by the defendant on its road between Birmingham, Ala., and Chicago, 111., for the carriage of passengers and their baggage; that for the purpose of carrying baggáge it carried as a i>art of the train a compartment baggage and express car, in one compartment of which was carried the baggage of passengers, and in the other express for the American Express Company; that the plaintiff was the sole baggagemaster on the train between Birmingham and Cairo; that on the day on which plaintiff received his injuries the train left Birmingham for Cairo, manned by a crew of' the defendant’s employees, with the plaintiff in charge of the baggage and express car; and that at the time of and immediately before the derailment of- the train the plaintiff was actively engaged in the discharge of his duties as baggagemaster, making out a report which he was required to forward to the general baggagemaster of the defendant company in phicago. As to his employment, the plaintiff testified in response' to the following question by his counsel:

“Mr. Johnston, what was your employment on November 18, 1913? Answer: “I was train baggagemaster on the Illinois Central Railroad for the Illinois Central Railroad Company.”

And, further:

“I acted as baggagemaster and express agent on the train from Birmingham to Cairo, 111. On this occasion I left Birmingham at noon going toward Cairo, and we had baggage going as far as Canada, I think — I won’t Be positive about that. We had baggage going beyond Cairo. It was a through train to Chicago. The Illinois Centra1 Railroad carries passengers and freight between Birmingham, and Cairo. They do a general business of common carrier of freight and passengers between Birmingham and Cairo, and were at the time of the accident. * * * I am not positive how long I had been on the run when I was injured.”

On cross-examination the plaintiff testified that he was employed by E. K. Stone, superintendent of the American Express Company at Memphis, Tenn.; that he made application to Stone for employment with the American Express Company, and was employed about June 26, 1913; that he had formerly worked for the express company in a like capacity, and understood his duties; that he received his pay twice a month, and signed the pay roll at the office of the American Express Company; that his first employment in this capacity was about ten years previous; and that on the occasion of that employment he made application to a Mr. Adams, superintendent of the American Express Company at St. Louis, and under that employment he worked for the “American Express Company and the Illinois Central Railroad Company.”

The defendants witness Scott testified that he was an employee of the American Express Company; that he had never been in the employ of the defendant company and had no connection whatever with it; that he did not know much about the duties of a baggagemaster on the route, except that he was supposed to look after the baggage; that it was the duty of the express messenger to do this, but he had no knowledge of the arrangement between the express company and the railroad company, if any there was. E. K. Stone, a witness for the defendant, testified that he was at the time of the injury and prior thereto superintendent of the American Express Company; that Johnston at the time of the injury was working for the American Express Company, and had been working for them, under his last employment, for four or five months prior to his injury; that plaintiff made application to him by letter for employment, and that he (witness) wrote him he could probably provide a place for him, and he came down “and did extra running as a messenger,” and at the time he was injured was “running as express messenger for the American Express Company,” at a salary of $80 per month, which was paid by the express company; that it was “his duty •to receive and deliver express to and from the cars and make a record of it as he handled it — also to handle the baggage and baggage supplies in the same manner”; that no one except the American Express Company had authority to employ or discharge men as express messengers to do the work Johnston was doing at the time; that they were paid by the express company, and their duties and labor controlled by the express company. On cross-examination this witness testified that he did not know what arrangements the American Express Company had with the Illinois Central Railroad Company through which the express messenger handles the baggage of the railroad company; that *10such matters were handled by higher authority than the superintendent.

It cannot be doubted that some officer, agent, or employee of the railroad company was charged with the duty of employing or arranging for the employment of baggagemen for its trains — the work which plaintiff was doing at the time of the injury — and yet not a single employee of the defendant was called to testify on this subject, and no contract, rule, or other documentary evidence was offered on the trial to shed light on this question. The defendant was content to rest this aspect of its case on the testimony of the two agents of the express eompimy, who were shown to have no knowledge of the business arrangement between the express company and the railroad company, if such there was, under which the plaintiff was doing the work and performing the duties of baggagemaster for the defendant,

[10] The evidence stated clearly warranted the submission of this question to the jury, and warranted them in finding that the plaintiff .was an employee of the defendant at the time he was injured. A. C. L. R. R. Co. v. Treadway’s Adm’x, 120 Va. 735, 93 S. E. 560, affirmed on appeal, 245 U. S. 670, 38 Sup. Ct. 191, 62 L. Ed. 540; Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480; Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; T. C. I. Co. v. Hayes, 97 Ala. 201, 12 South. 98; Drennen & Co. v. Smith, 115 Ala. 397, 22 South. 442; L. & N. R. R. Co. v. Williams, 199 Ala. 453, 74 South. 382; North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Gas. 1914C, 159; Dallas Mfg. Co. v. Townes, 148 Ala. 146, 41 South. 988.

[11] The next and final question to be considered is whether the verdict in this case is so grossly excessive that the court should have awarded a new trial on that ground. The evidence pertinent to this inquiry shows that the plaintiff at the time of his injury was 41 years of age, of splendid physique, and in perfect health; that he was wholly dependent on his -labor for the support of himself and his family; that at the time of his injury he was earning $S0 per month; and that since that time the salary of the position which he then held has been increased to $110 per month.

The evidence warranted a finding by the jury that the plaintiff’s injuries were permanent, destroying his physical and mental integrity, and rendering him a helpless cripple for life; that his disability was accompanied by constant pain and suffering; and that his earning power has been practically, if not completely, destroyed. Dr. Davis, a .surgeon of long experience, who had made two examinations of the plaintiff — -the first :a short time after the injury and the other shortly before the trial- — -testified in substance that as a result of the accident the plaintiff had suffered a displacement of the lower lumbar vertebrae to such extent as to separate the sacrum joint on both sides of the vertebrae, causing a sacroiliac looseness in these joints; that the tendency of such injury -was to produce more or less disability; usually accompanied with pain; and that in his opinion the plaintiff i-s permanently crippled and disabled. The injury occurred November 18, 1913, and on the trial four years later the plaintiff testified:

“When the train derailed I was knocked unconscious. When I came to myself I found my back was badly hurt, and I had received a scalp wound extending from here to here [indicating], and this finger was crushed and broken. * * * I have not been able to perform the duties of my employment since that time. I have never-been able to work. -[Here witness weeps.] I was a healthy man before this. I was strong and healthy and vigorous and worked regularly. I could take a trunk or baggage up this way and put it as high as any man. I have not been able to do that since this accident. I have not been able to work at all to do anything. I am not able to appear in court when it comes to what I am able to do. I worked regularly before the accident. [Witness weeps.] My head don’t bother ime except with dull pain. My back is in constant pain, unbearable pain, all the time when I am sitting in this position. In this position I get some rest, but there is pain there all the time. I cannot relax at night when I lie down, and some nights I don’t sleep one wink, just lie there, and my back goes this way [illustrating]. My kidneys bother me some, more or less, ever since that, and never bothered me before that.”

The evidence further shows that a month or so after the plaintiff left the hospital he was given employment by the express company as cashier in its office in Birmingham, and that his physical and mental condition was such that he could not perform the duties of this employment, though they were light, and for this reason he was let out of such employment.

While' the damages awarded were in a sense heavy, after taking into consideration the physical injury and suffering, plaintiff’s physical and mental condition before the injury and his reasonable expectancy of life, together with the financial loss by reason of loss of earning capacity, and depreciated value of money as a medium of exchange at the time of the award of the damages and npw, we are not convinced that the damages awarded are so excessive as to justify interference by this court. In normal times judgments awarding larger damages have been sustained for injuries no more serious than those here shown. Huggins v. A. C. L. R. R. Co., 96 S. C. 267, 79 S. E. 406; Hughes v. Harbor & S. B. & S. Ass’n, 131 App. Div. 185, 115 N. Y. Supp. 320; Zibbell v. So. Pac. Co., 160 Cal. 237, 116 Pac. 513; Tex. & Pac. Ry. Co. v. Matkin (Tex. Civ. App.) 142 S. W. 604; Id., 107 Tex. 125, 174 S. W. 1098; Mc*11Mahon v. Ill. Cent. Ry. Co., 127 Minn. 1, 148 N. W. 446; St. L. I. M. & S. Ry. Co. v. Webster, 99 Ark. 265, 137 S. W. 1103, 1197, Ann. Cas. 1913B, 141; Houston & T. C. R. Co. v. Gray (Tex. Civ. App.) 137 S. W. 729; Reeve v. Colusa Gas & Electric Co., 152 Cal. 99, 92 Pac. 89; Penn. Co. v. Barton, 130 Ill. App. 573; Huggard v. Glucose Sugar Refining Co., 132 Iowa, 724, 109 N. W. 475; Waters-Pierce Oil Co. v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 170; Padrick v. Gr. North. Ry. Co., 128 Minn. 228, 150 N. W. 807, L. R. A. 1915F, 1; Otos v. Gr. North. Ry. Co., 128 Minn. 283, 150 N. W. 922, affirmed, 239 U. S. 349, 36 Sup. Ct. 124, 60 L. Ed. 322; Hackett v. Chi. I. & L. Ry. Co., 170 Ill. App. 140; Id., 228 U. S. 559, 33 Sup. Ct. 581, 57 L. Ed. 966; Whitehead v. Wis. Cent. Ry. Co., 103 Minn. 13, 114 N. W. 254, 467; Yazoo & M. V. R. Co. v. Wallace, 91 Miss. 492, 45 South. 857; St. L. S. W. Ry. Co. v. Waits (Tex. Civ. App.) 164 S. W. 870.

In the case of L. & N. R. R. Co. v. Williams, 183 Ala. 138, 62 South. 679, Ann. Cas. 1915D. 483, this court affirmed a judgment awarding $27,000 for an injury not as serious as the injuries in this case, and at that time the dollar had double its present purchasing power. It was there observed:

“These verdicts, it is freely conceded, do not illustrate the average conceptions of juries, as shown by the general run of the cases reviewed in the two notes referred to, and in the brief for appellant. But, as noted by the editor of Annotated Cases (16 Ann. Cas. 10), the tendency in recent years has been for verdicts to award, and appellate courts to sustain, increasingly larger sums as compensation for personal injuries. This is attributable, no doubt, to the greatly decreased purchasing power of a dollar, as exemplified in the rise in the price of nearly all commodities, and the enormous increase in the cost of living; and, in some measure, perhaps, to a higher regard for human life and the value of physical efficiency.”

See, also, Cent. of Gas Ry. Co. v. White, 175 Ala. 62, 56 South. 574.

The jury and the trial court had the opportunity of seeing and observing the plaintiff while he was testifying as a witness, and were in a better position to determine whether or not his condition was feigned or real; and after a careful consideration of the evidence in this record, we find no just reason for disturbing the verdict. Ray v. Watkins, 203 Ala. 683, 85 South. 25, and authorities there cited. Other questions are fully dealt with in the original opinion.

The rehearing is therefore granted, the judgment of reversal set aside, and the judgment of the circuit court is affirmed.

SOMERVILLE, GARDNER, and THOMAS, JJ., concur.

SAYRE, J.,

concurs in the opinion as to the rules of substantive law, but holds that the verdict is excessive and for this reason the judgment should be reversed.

ANDERSON, O. J., and McCLELLAN, J., dissent, adhering to the views expressed in the original opinion.