Kain v. Smith

It is conceded that a case existed in favor of the plaintiff, which would entitle him to its submission to the jury, if the defendant, Smith, was liable. The action was brought to recover damages for personal injuries incurred by plaintiff, through the negligence of defendant’s as his employers, in supplying him with inadequate tools and machinery. If defendant was an employer of the plaintiff in such sense as to create an implied contract to exercise ordinary care not to expose him to unreasonable risks and dangers, then the defendant might be liable in this action. But if the defendant was not such an employer, and the relation of master and servant did not exist between them, then defendant is not liable. It is also conceded by the plaintiff that, defendant, Smith, was not present at the time plaintiff received his injury, and that no personal negligence of Smith contributed thereto.

Undoubtedly an action for an injury caused by the negligence of several persons, will lie against one or more of them. (Creed v. Hartmann, 29 N. Y., 591; Roberts v. Johnson 58 id., 613.) The nonsuit could not, therefore, stand upon any defect of parties. Hence the nonsuit must be justified, if at all, upon the ground that Smith was not the master of the plaintiff, and was improperly sued as such.

The question is novel and no authority is found covering the point here presented. The defendant Smith was one of the receivers and managers of the Yermont Central Eailroad, appointed by the courts of Yermont. As such and by the authority of the court *557and for and on behalf of the Yermont Central Railroad, a lease of the Ogdensburgh and Lake Champlain Railroad, was made to the Yermont railroad companies, in the hands of such receivers and managers. The defendant with others signed such lease, not on his own behalf, but for the companies he represented. He acted as agent and not as principal. He did not personally become the owner, nor was he entitled personally to the earnings of the Ogdensburgh and Lake Champlain Railroad, under the lease. His relations to the Yermont roads were purely official, and in such official character he was authorized to, and did act in leasing the Ogdensburgh and Lake Champlain Railroad. The Yermont roads expected to derive advantage from the act done by Smith, and therefore must answer for injuries occasioned thereby. (Hall v. Smith, 2 Bing., 156.) The work was carried on for the benefit of the roads and not of the defendant. (Bush v. Steinman, 1 B. & P., 404, 407.) The defendant was an agent and not an owner. He was an agent in the same sense and of the same character with a director or superintendent or other officer of a railroad company. His acts are the acts of the corporations he represents, and as they receive the benefit, upon them must rest the responsibility, in the absence of any personal negligence of the defendant.

Several of the cases cited by the plaintiffs counsel arose under contracts made by the defendants, and the defendants were held personally liable for their fulfillment. But as the plaintiff properly contends, this is an action for a tort, and the contract which is implied is only inducement to the charge of wrong.

Other cases are cited by the plaintiffs counsel where the defendants are, in law, the owners of the property, and the responsibility for injuries arose from such ownership. Such are the cases of executors, administrators and trustees, having possession and perfect title although for the ultimate benefit of others. (Ballou v. Farnum, 9 Allen, 47; Lamphear v. Buckingham, 33 Conn., 237.) But in none of these cases do I find it held, that persons acting in a representative character, are held liable for injuries occasioned by negligence unless such persons are the owners and proprietors of the property through which 'the injury arose, and the master of the person injured. I think the principles enunciated in the learned opinion of Judge Allen, in Cardot v. Barney (63 N. Y., 281), *558sustain the views I have taken. At least it so seems to me, and I therefore conclude the judgment should be affirmed, with costs.

(dissenting):

The Ogdensburgh and Lake Champlain Railroad Company is a corporation under the laws .of New York. The Yermont and Canada Railroad Company is a corporation under the laws of Yermont. The Yermont Central Railroad Company was a corporation under the same laws, but prior to the time of the alleged cause of action the defendant and others, by the Court of Chancery of Yermont, had been appointed receivers and managers of said Yermont railroad company, to hold and operate the same as officers of the court and not otherwise.

Prior to the time of the alleged cause of action the Ogdensburgh and Lake Champlain Railroad Company, as parties of the first part, and the Yermont and Canada Railroad Company and the managers and trustees of the Yermont Central Railroad Company, as parties of the second part, entered into a written contract. The Yermont Central Railroad Company was not itself a party to this contract; but the same was signed by the defendant and another, styling themselves trustees and managers; and they are described therein as having the possession and management of the Yermont Central Railroad Company under the decrees of the courts and the laws of the State of Yermont. The defendant describes himself in this contract not as a receiver but as trustee and manager.

By this contract the parties of the second part are to have possession and control and use of the Ogdensburgh and Lake Champlain Railroad Company. All the gross receipts are to belong to them and to be collected by said managers, and to be disposed of as the parties of the second part shall direct. The parties of the second part jointly and severally covenant to keep up and maintain in good order all the present equipment, and to keep in repair the tools and machinery. ■ They jointly and severally covenant to pay the party of the first part a certain rent; to assume all the obligations of the parties of the first part, by statute or common law, as common carriers or otherwise; to indemnify and save them harmless by reason *559of any claim that may be made for any neglect, accident or default happening upon, or in connection with, the road of the parties of the first part.

Now, in the first place, it seems to me that the defendant cannot be called an agent of the Yermont Central Railroad Company. He does not name himself receiver in the written contract; but I assume, from the stipulated evidence, that he may have been appointed receiver of the Yermont Central Railroad Company by a Yermont court. As such receiver he is not, as I think, the agent of the corporation. The corporation cannot control or remove him. He is simply an officer of the court. The ground of the appointment of a receiver is that the corporation shall no longer be permitted to manage the property, and that the court will take control of it.

As is said in Cardot v. Barney (63 N. Y., 281), “ the property was in the court for management and administration, and the defendant was an officer of the court obeying its orders and carrying out its directions.” And, in that case, it was because the position of the defendant therein was entirely official that he was held not to be liable in an action for negligence, in the management of a railroad which was under his control, as receiver, wheré no personal neglect was imputed.

But again — and here lies the distinction between the present case and that cited above — the defendant is not receiver of the Ogdensburgh and Labe Champlain Railroad Company, in the management of which this accident occurred. He has no official position what • ever, in respect to that railroad. The gross receipts, by the terms of the contract, belong to him and his co-lessees ; and are to be disposed of as they shall direct. It is very possible, that in this receipt of income and in this management of the Ogdensburgh and Lake Champlain Railroad Company, he acts as trustee and in a representative capacity. But this is unimportant. (Rogers v. Wheeler, 43 N. Y., 598; Ferrin v. Myrick, 41 N. Y., 315; Cardot v. Barney, ut supra, at p. 288.) In doing this, he is in no sense a receiver or officer of the court, but he has voluntarily assumed to operate the road, and thus has assumed all consequent liabilities.

In regard to the duties imposed on one as receiver, the courts go so far in protecting its officers that he cannot be sued except by permission of the court. But where one who has been appointed *560by tbe courts of another State, a receiver of a railroad company in that State, comes into this State and obtains the control of another railroad, and one incorporated by our laws, and manages that, and receives its income; he is not entitled to the immunities of a receiver in respect to such road and its management.

Furthermore, by the very letter of this contract, he agreed (and the agreement was several, as well as joint), to assume all the obligations of the company and to indemnify the company against any neglect, accident or default, happening upon, or in connection with, the said road.

In Blumenthal v. Brainerd (38 Vt., 402), in regard to these same receivers, the court held, that if they were in fact common carriers, it was no defense to an action for a breach of duty or obligation, that they were managing the road as receivers. In Paige v. Smith, (99 Mass., 395), the same rule was adopted in Massachusetts as to these same receivers.

But whatever may be the defendant’s liability in respect to the management in Yermont, of the road of which he is supposed to be receiver ; when he comes into this State and obtains complete control of a railroad, not by virtue of his appointment as receiver, but by a contract, which he voluntarily made; when he takes possession of this railroad, and agrees to assume the duties of the company as a common carrier, and when he receives the earnings, to be disposed of as he directs, he is, as it seems to me, the owner and proprietor, during the time agreed upon, of the property, and the master of the persons employed by him in performing the duties thus assumed.

Concurring with my brother Boardman, on the question as to the defect of parties, I think that, for the reasons above stated, the judgment should be reversed and a new trial granted, costs to abide the event.

Judgment affirmed, with costs.