#### BYRD & PARKER v. JAMES C. DAVIS, Director General of Railroads, and ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 16 April, 1924.)

Railroads — War—Negligence—Questions for Jury — :Nonsuit—Director General of Railroads.

Where, in an action against the Director General of Railroads and a railroad company under war control, for the negligent loss in transitu of several of a carload shipment of mules, the Director General filed answer, admitting the receipt of the mules for transportation, and the loss in transitu, hut denied negligence, a nonsuit as to the defendant railroad should be entered, leaving the issue as to the defendant Director General for the determination of the jury.

Appeal by plaintiffs from Calvert, J., at March Term, 1923, of DupliN.

The complaint alleged that Walker D. Hines was Director General of the Eailroads of the United States, and that on 14 December, 1919 (now four years ago), the defendants received for transportation from Wichita, Kansas, to Wallace, N. 0., 76 mules in good condition which they loaded on the cars numbered, and which arrived at Wallace 25 December, 1919, and the representative of the -defendant found three mules short. The plaintiffs paid full freight and feed .bill of said 76 *576mules from "Wichita, Kansas, to destination and demanded judgment for the value of the three mules short and for excess feed and freight bill on said three mules not delivered.

The bill of lading is entitled “United States Railroad Administration — W. G. McAdoo, Director General of Railroads.”

The 'plaintiffs assigned as error that the court erred in refusing to submit the issue tendered by them, to wit:. “Were the three mules or^any of them killed by the negligence of the defendant, as alleged by plaintiffs”; and in submitting the following issue: “Were the three mules, or any 'of them described in the complaint, delivered to the Director General of Railroads operating the A. C. L. R. R. Company?” and in directing the jury that if they believed the evidence to answer the first issue “No.” Appeal by plaintiffs.

Geo. R. Ward for plaintiffs.

Stevens, Beasley & Stevens for defendants.

Per Curiam.

Walker D. Hines, styling himself Director General of Railroads (for whom subsequently Jas. C. Davis was substituted), filed his answer, admitting that he was “Director General of the Railroads of the United States,” and that said 76 mules were delivered to him as such to be transported from Wichita, Kansas, to Wallace, N. C., consigned to the plaintiffs, and admits that when the cars arrived at Wallace on 25 December, 1919, that his representative checked the stock and found three mules short, but sets up a denial of negligence causing the loss of the three mules.” This raised an issue of fact which should have gone to the jury, and for refusing to let them pass upon the issue there was error.

This precludes the necessity of discussing any other matters as the Director General submitted himself to the jurisdiction of the court by his answer, which admits the receipt of the mules and payment of the freight and feed therefor and the contract of carriage.

A nonsuit must be taken as to the A. C. L. R. R. (jompany under the ruling in R. R. v. Ault, 256 U. S., 557, and. R. R. v. N. Dak., 250 U. S., 135, which have been cited and followed in several cases in this State. '

As to the Director General there must be a

New trial.