Gambar halaman
PDF
ePub

1

the law, for the trial of his cause. This, too, after the property has passed from the custody of the court, was required to be done by all who then held unadjusted claims, within an arbitrarily fixed period, when the receiver was no longer under the power of the court. The orders seem to have been well adapted to the protection of some interests; but those were the interests of the company, lien creditors, and the receiver, at the inconvenience, if not at the expense, of that class of creditors whose several claims were comparatively small, but were charges to the extent of all betterments made with earnings. This last class of creditors, under the act of April 2, 1887, as well as the act of March 19, 1889, had lien to extent of earnings used in improving the company's property, which could no more be destroyed by the orders relied on than could this action, then pending, thus be abated or rendered fruitless. So much of the order relied on as declared that the property in hands of the company should be held subject to all claims which might have been enforced against it while in the custody of the court, its jurisdiction over the property for the purposes of this case being conceded, was obviously correct, and the company, having so received it, must so hold it. That order, however, is not the true foundation on which the charge or lien rests. It rests on the statute, but, in the absence of this, would rest on the existence of facts which, under general principles applicable, create such a charge or lien; and no order of any court can change the effect of such facts, or affect one not a party to the proceeding in which the order was made. So much of the order as required intervention, and provided a time within which this should be made, was inoperative upon any right of appellee. If the court had power to assume custody of the company's property, a sufficient answer to the claim of appellant, that resort must be had to that court by appellee to enforce his claim, is that the court has not exercised such a power, and, in effect, has declared that it would not, to enforce any claim not reduced to judgment by intervention in that court, and the property stands subject to any proper process for the collection of judgment.

representa

That a receiver controlling the property of a railway company is, in a limited sense, the representative of the corporation, cannot be denied; for, on account of his conduct, a liability may be fixed upon its property, Receiver as which earnings while in the hands of a receiver are, tive of comas much as is the corpus of the property. A judg- pany. ment against him, in actions of this character, binds such property of the company; and it is not held to be necessary, pending receivership, to join the company as a de42 A. & E. R. Cas.-2

fendant. A person through whose acts such a liability may be imposed on the property of another, this fixed by judgment against him alone, and enforced through process to which the owner is not a party, is the representative of the person or corporation to the extent of the fund which may be affected by his act, and subjected, through judgment against him alone, to satisfaction of claim thus arising. Current legislation all tends to show that the consensus of legislative bodies repudiates the technical holding that a receiver is only the arm of the court, and recognizes the real relation arising from the facts. The act of congress before referred to recognizes the representative character of the receiver. The act of March 19, 1889 (Gen. Laws, 57), recognizes it, and declares that the discharge of a receiver shall not work an abatement of a suit pending against him, nor affect the right of any one having claim to sue him after discharge. It gives the right to pros ecute such an action against the receiver alone, or to join with him the person or corporation whose property was once in his hands as receiver. It further provides that "all parties and corporations whose property has been placed in the hands of a receiver by order of court, and which was not sold by the receiver, and which property has been redelivered back to the original parties or corporation without any sale of said property, shall be liable and held to pay all of the unpaid liabilities of the receiver in causes of action arising out of and during the receivership; and, if there are any suits pending against a receiver, at the date of discharge, on causes of action arising during the receivership, the plaintiff shall have the right to make the party or corporation to whom the receiver delivered the property which was in his hands as receiver a party defendant along with the receiver; and, if any judgment is rendered against the receiver for causes of action arising out of and during the receivership, then the court shall also, at the same time (if the party or corporation receiving back the property have been made party defendants), render judgment in favor of the plaintiff, against both defendants, for the amount so found for plaintiff, and all costs, and plaintiff shall have the right to foreclose his lien on the property delivered back by said receiver to said party or corporation." Such proceedings against one not a representative of the fund, or of the owner of a fund, to be subjected, but once the mere arm or officer of a court, now cut off by discharge, could not be entertained. This act was not in force when the judgment was rendered in this cause, but it tends to show that the legislature recognized the fact that receivers really have a representative character necessary to the prosecution and enforcement, if not to the existence, of

rights, which the courts at all times have not fully recognized. In view of the fact that the business and property of large corporations, charged with duties to the public which can be discharged only by the business being conducted, are at this day frequently held for long periods in receiverships, it may be found, in the future, necessary and proper to hold that in such cases receivers are more fully the representatives of such corporations than they have heretofore been held to be. Objections to the judgment based on the former existence of the receivership, and orders made in discharging that, not being tenable, the only inquiries that remain are whether the facts entitled the appellee to the judg. Injuries to ment, and whether errors on the trial were com- Negligence. mitted as claimed. Appellee was in the employ

plaintiff

ment of the receiver as an engineer, and was injured by derailment of the locomotive on which he was; and the evidence showed very clearly that this was caused by a defective switch. The evidence further tended to show that the train might have been stopped before the locomotive turned over, and thus injured appellee, even after it was derailed, had the air brakes been in proper condition. It is urged that "the court erred in refusing special charge No. 2, asked by defendant, to the effect that if the wreck was caused by a switch being out of place, and the switch was left out of place by a conductor or brakeman on another train, and such other brakeman or conductor could have properly adjusted the switch, then their negligence would be the negligence of a fellow-servant, and plaintiff cannot recover," and that "the court erred in overruling a motion for a new trial, because the evidence is not sufficient to sustain the verdict; because all the negligence that was shown was the negligence of a fellow-servant of plaintiff, and there was no proof of negligence to make the defendant liable."

Derailment

switch-Fel

The evidence shows that the switch was defective in that the spring was not strong enough to throw the point of the switch to the main rail, and there hold it, when the lever was in proper position to indicate to the engineer that the rails were in proper position for the by defective car to pass. In approaching the switch the engi- low-servants. neer saw that the lever was in position, which indicated that the rails were in proper position; but, before reaching the switch, he saw that this was not true, when he used all the means in his possession to stop the train, but was unable to do so in time to prevent the injury. The errors above assigned are based on the proposition that other employes of the receiver might have placed the rails in proper position by the use of a maul, axe, or some substance which

would have kept the rails in proper place, and that for this reason the injury resulted from the negligence of a fellowservant, and not from a defective switch. The propositions cannot be maintained. If the machinery relied upon by the receiver to keep the rails in proper position was so defective that it did not accomplish that purpose, then he had failed in duty to the employe which fixed liability, and could not be relieved from that by the fact that some other employe, by the use of some unusual means, might have placed and held the rails in proper position. The charge refused was not applicable to the facts proved.

Defective brakes.

It is urged that "the court erred in refusing special charge No. 4, asked by defendant, to the effect that plaintiff could not recover on account of any defect in the brakes on the car that was derailed." The evidence tending to show, that notwithstanding the derailment, the locomotive and train could have been stopped before the locomotive turned over, and thus injured appellee, had the air brakes been in order, and also tending to show that the brakes would not work because out of order, the court did not err in refusing to give the charge requested.

Verdict not

It is urged that the verdict is excessive; but, although large, this must be determined by the facts, and due weight given to the finding of the jury. At the time apDamages- pellee was injured, he was 34 years old, in good health, and endowed with vigorous constitution excessive. and fine physical development. He was earning from $165 to $195 per month. As the effect of injury received, he has been incapacitated to perform any useful or profitable labor, is bereft of the sense of hearing, is physically a wreck, and can look to a future of suffering such as, with most persons, would make life a burden. Though large, we cannot say that the verdict is excessive; and, finding no error in the judgment, it will be affirmed.

Discharge of Receiver-Liability of Company for Claim-Improvements.Where the receiver has been discharged and the property restored to the control of the railroad company, the company is liable upon a cause of action which arose against the receiver in connection with his management of the road-e. g., a claim for injuries caused by the negligence of his employes-if the earnings during the receivership were sufficient to meet such claim, but were expended in improvements of which the company after the receiver's discharge has received the benefit. Texas & P. R. Co. v. Griffin, Tex. Sup. Ct., March 11, 1890; following Texas & P. R. Co. v. Johnson, ante, p. 7.

Judgment for Damages against Receiver-Lien upon Property.—In an action against a receiver to recover damages for personal injuries, a judgment which undertakes to prescribe the particular fund out of which he should be paid, and to establish a lien on the earnings of the railway, machinery purchased by the receiver with earnings while the railway was in his hand,

and on improvements and betterments to the property made with such earnings, is erroneous. All the property of the company including that on which the judgment attempted to fix a lien, being practically in the custody of the court which appointed the receiver, the judgment should have been only against the receiver in his official character, leaving the matter of its enforcement to be determined by the court having jurisdiction of the receivership. Brown v. Brown, 71 Tex. 355.

Discharge of Receiver. When a receiver has been appointed and has given security, he will not be discharged upon his own motion except he shows a reasonable cause therefor. Smith v. Vaughan, Ridgw. 251. He is not entitled to be discharged as a matter of course, and his mere desire to be released, coupled with the fact that the accounts of the corporation of which he has been appointed receiver, are complicated and that much time will be lost from his own business, is not sufficient cause. Beers v. Chelsea, 4 Edw. (N. Y.), 77.

It is the right and duty of the party upon whose application the receiver was appointed, to see that he is discharged after executing his duty. Langdon v. Vermont & C. R. Co. (Vt.), 4° Åm. & Eng. R. Cas. 33. The court will, at the earliest possible moment, get rid of a receiver, and when the admitted liabilities and receiver's expenses have been paid, he will be discharged. Sewell v. Cape May & S. P. R. Co. (N. J.), 30 Am. & Eng. R. Cas. 155. So, where the amount of a mortgage debt is definitely fixed, the defendant in foreclosure proceedings in which a receiver has been appointed, has a right to pay the sum due and to have the receiver discharged and the property restored. Milwaukee & M. R. Co. v. Soutter, 2 Wall. (U. S.), 510. But in Cook v. Findlay, 60 How. Pr. (N. Y.), 375, it was held that the payment of a judgment by the debtor after the appointment of the receiver, was not sufficient in itself to discharge him. It is essential that any claim for expenses incurred by the receiver in the exercise of his authority should be paid before the property held by him is taken out of his possession. In New Jersey, it has been held that if a company whose property is in the possession of a receiver, shall satisfy the chancellor of its ability and readiness to operate its road, the receiver will be ordered to deliver up the property. In re Long Branch & S. R. Co., 24 N. J. Eq. 298.

When an offer has been made to pay the debt involved in foreclosure proceedings, it is no objection to the discharge of the receiver that the railroad is not sufficient security for the payment of all the company's debts, nor will the railroad be kept in the hands of a receiver merely for the purpose of paying a small judgment, for which he was also appointed receiver, nor at the request of a creditor who has a lease of the road as security, but has abandoned possession thereunder, and has failed to keep his contract to pay the interest. Milwaukee & M. R. Co. v. Soutter, 2 Wall. (U. S.), 510. In Howard v. La Crosse & M. R. Co., Woolw. C. Ct. 49, it appeared that the railroad for which a receiver had been appointed, was 95 miles long, a link in an important route, whose gross annual earnings were $800,000, and that the road was in good condition, and it was held that it was ample security for mortgage debts to the amount of $2,200,000, and that a receiver of the road appointed at the suit of a party on whose debt $300,000 was offered to be paid, and who had a decree which provided for sale in case of default of payment as therein provided, would be discharged. In that case, it was also held that the receiver would not be continued in possession when he was appointed on a creditor's bill, showing a judgment for $16,000, and when the plaintiff enjoyed all the ordinary remedies for enforcing his lien, and had received only $1,000 in the four years during which the receiver had been in possession. The court also declared that an unreversed decree declaring the judgment to secure which a lease of a railroad had been made to be void, and setting it aside, would have a persuasive

A

« SebelumnyaLanjutkan »