Moorshead v. United Railways Company of St. Louis
| Decision Date | 30 March 1907 |
| Parties | KATIE A. MOORSHEAD, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS et al |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Affirmed.
R. P. & C. B. Williams for appellant.
(1) A railroad corporation, without the express consent and authorization of the lawmaking power of the State, cannot make a lease of its property or franchises to another corporation, such a contract being ultra vires and void. As between the parties, such a contract is non-enforceable, and as to the public, for torts committed in the use of the leased property the lessee is treated as the agent of the lessor, both being jointly liable. Railroad v Brown, 17 Wall. 450; Railroad v. Railroad, 130 U.S. 1; Railroad v. Railroad, 118 U.S. 290; Thomas v. Railroad, 101 U.S. 71; Railroad v. Bridge Company, 131 U.S. 371; Hart v. Railroad, 209 Ill. 414; McCoy v. Railroad, 36 Mo.App. 445; Markey v. Railroad, 185 Mo. 348; 2 Elliott on Railroads, sec. 430; Dean v. Railroad, 97 S.W. 910. (2) Even though a legislative consent and authorization be given to a railroad corporation to execute or to accept a lease, such legislative permission cannot have the effect of relieving the lessor from the performance of its duties and obligations to the public, but simply validates the lease as between the parties, and the lessor remains liable to the public for the negligent acts of the lessee, the same as before the lease, unless the enabling statute contains an express exemption from liability. Railroad v. Hart, 209 Ill. 414; Harden v. Railroad, 129 N.C. 354; Brown v. Railroad, 131 N.C. 445; Logan v. Railroad, 116 N.C. 940; Railroad v. Crane, 113 U.S. 424; Braslin v. Somerville, 145 Mass. 64; Quested v. Railroad, 127 Mass. 204; McCabe's Adm. v. Railroad, 112 Ky. 861; Singleton v. Railroad, 70 Ga. 464; Beach, Private Corporations, sec. 366; Chicago Union Traction Co. v. Stanford, 104 Ill.App. 99; Railroad v. Meech, 163 Ill. 305; Railroad v. Balkwill, 195 Ill. 535; Railroad v. Doan, 195 Ill. 168; Smith v. Railroad, 130 N.C. 344; Balsey v. Railroad, 119 Ill. 68; Tillet v. Railroad, 118 N.C. 1031; Chollette v. Railroad, 4 L. R. A. 135; Par v. Railroad, 43 S.C. 197; Bower v. Railroad, 42 Iowa 546; Lee v. Railroad, 116 Cal. 97; Bean v. Railroad, 63 Me. 295; Lakin v. Railroad, 13 Ore. 436; Nelson v. Railroad, 26 Vt. 721; Daniels v. Hart, 118 Mass. 534; Tackers v. Railroad, 71 Mich. 645; Nagle v. Railroad, 3 S.E. 369; Willard v. Railroad, 124 F. 196; Railroad v. Dunbar, 20 Ill. 623; Driscoll v. Railroad, 65 Conn. 230; Harmon v. Railroad, 28 S.C. 401; Hawkins v. Railroad, 119 Ga. 159; Phelps v. Steamboat Co., 131 N.C. 12; Pierce v. Railroad, 124 N.C. 83; 5 Thomp. Corp., sec. 5884; Whitney v. Railroad, 44 Me. 362; Stearns v. Railroad, 46 Me. 95; Hart v. Railroad, 33 S.C. 427; Bank v. Railroad, 25 S.C. 216; Railroad v. Morris, 68 Tex. 49; Cogswell v. Railroad, 5 Wash. 46; Munz v. Railroad, 64 L. R. A. 222; Aycock v. Railroad, 89 N.C. 330; Benton v. Railroad, 122 N.C. 1007; Railroad v. Ferguson, 9 Tex. Civ. App. 610; Railroad v. Allen, 39 S.W. 125; Railroad v. Ellett, 132 Ill. 660; 23 Am. and Eng. Ency. Law, 784; Railroad v. Owen, 75 S.W. 579; Railroad v. Culberson, 10 N.E. 706. (3) The instrument in question is not a lease, but it resembles more "a partnership, an operating contract," or a "trust arrangement." In either case the Transit Company would be held as the agent of the United Railways Company. The essential elements of a lease -- a determinate estate given the lessee, and absolute and exclusive ownership in the lessee of the term -- are wanting in this instrument. Galveston v. Davis, 4 Tex. Civ. App. 468; Driscoll v. Railroad, 65 Conn. 230; St. Joseph, etc., v. St. Louis, etc., 135 Mo. 173; Railroad v. Cox, 102 F. 825; Archer v. Terre Haute, 102 Ill. 493; United S. Rolling Stock v. Potter, 48 Iowa 56.
George Safford, George H. Shields, Thomas T. Fauntleroy and Shepard Barclay also for appellant.
(1) The document is not a lease. As to third persons it is a contract of agency or partnership, nothing more. We hold that, under the elemental principles of the law of partnership and of agency, this so-called "lease" (as to third persons) either made these companies partners or made the Transit Company an agent to operate the lines of railway for the benefit of the other company or of both the parties interested. Brownlee v. Allen, 21 Mo. 123; York, etc., Co. v. Winans, 17 How. 30; Galveston, etc., Co. v. Davis, 23 S.W. 301; Cin. & C. Co. v. Sleeper, 5 Ohio Dec. 196; L. & N. Co. v. Breeden, 64 S.W. 667; Jones v. Penn. Co., 19 D. C. 178; Driscoll v. Railroad, 65 Conn. 230; Railroad v. Bouknight, 70 F. 442; Slater v. Clark, 68 Ill.App. 433. (2) No municipal assent to the transfer in question is shown by the evidence. The ordinance fails to authorize a transfer of the franchise of the United Railways to the St. Louis Transit Company, as to that part of the Transit Company's line where the accident in suit took place, which was on Geyer avenue between Jefferson avenue and Ohio avenue. Const., art. 12, sec. 20. The municipal "assent" which the Constitution and the statute (R. S. 1899, sec. 1187) require is an assent to a definite and particular transfer. The assent must be express. It was held in a case directly in point that a franchise given by law to a certain company, "its successors and assigns," did not authorize a transfer so as to relieve of liability the lessor. Railroad v. Oregonian Co., 130 U.S. 32; Briscoe v. Railroad, 40 F. 273. Ordinance 19738 purports to sanction a lease of the property and franchises of certain companies to the St. Louis Transit Company, "its successors and assigns;" but the United Railways was not named as one of the companies the lease of whose property was thereby sanctioned. The legislative authority needful to sustain a transfer of a franchise by lease affecting this class of property must, under our Constitution and statute (R. S. 1899, sec. 1187), be fairly clear and intelligible. It must be express authority. That authority is wanting here, as a reading of the ordinance demonstrates. No such authority will be implied. Thomas v. Railroad, 101 U.S. 71; Peoria, etc., Co. v. Lane, 83 Ill. 448. Another conclusive reason why ordinance No. 19738 cannot avail to prove municipal assent to the "lease" is that by the terms of its last section (10) it only applies to such companies as filed their "written acceptance" of all its conditions, within sixty days after the date (March 20, 1899) of approval of the ordinance. That limit of time has long since elapsed, and there is no evidence that either company availed itself of the benefits the ordinance tendered to the companies within its purview. So neither can now take advantage of its terms. (3) The supposed statutory authority to lease does not declare the lessor absolved thereby from the duty imposed by its franchise to operate, hence lessor remains liable. Where the leasing of such property is expressly authorized by law, the lessor remains liable for the proper performance of its duty to operate the railroad carefully, unless the law which confers the authority to lease declares that such transfer by lease relieves the lessor of the obligation and liability arising from its franchise. "While there is some conflict of authority, we think the great weight supports this conclusion." McCabe v. Railroad, 112 Ky. 816; Harmon v. Railroad, 28 S.C. 404; Driscoll v. Railroad, 65 Conn. 254; Braslin v. Railroad, 145 Mass. 68; Logan v. Railroad, 116 N.C. 946. On the principles declared in the foregoing decisions, the terms of the lease are immaterial, for it is not pretended that there is any Missouri law which goes further than to authorize a lease of the street railway property. In the absence of such a law applying to these defendants, there is a clear liability of the lessor in such a case as that at bar, for the servants of the lessees would be the agents of the lessor (as declared in the first instruction of the court). Brown v. Railroad, 27 Mo.App. 400; Penn. Co. v. Ellett, 132 Ill. 654; West Chic. Co. v. Anderson, 200 Ill. 329; Anderson v. Railroad, 161 Mo. 422; McCoy v. Railroad, 36 Mo.App. 445; Price v. Barnard, 65 Mo.App. 699; Sinclair v. Railroad, 70 Mo.App. 588; Phelps v. Steamboat Co., 12 Am. Neg. Rep. 617, 42 S.E. 335. (4) The defendant companies have no statutory power to lease or to take a lease of such property; hence, the lessor remains liable for the operation of the lines. There is complete unanimity of authority to the effect that without legislative power to transfer such property by lease, a transfer of that sort leaves the lessor liable for negligent operation of the railroad by the lessee. 3 Wood's Railway Law, sec. 400; 2 Elliott, Railroads, sec. 469; 5 Thompson, Corps., sec. 5884; Brown v. Railroad, 27 Mo.App. 400. Both the Transit Company and the United Railways Company are barren of any right to lease (or to receive a lease of) such property, because neither was organized since the enactment of article 3 of the General Corporation Law of 1899, conferring such power on companies of that sort. Nelson v. Railroad, 26 Vt. 717; Abbott v. Railroad, 80 N.Y. 30.
Boyle & Priest, George W. Easley and Edward T. Miller for respondents.
(1) The law of Missouri in force at the time of the execution of the lease authorized the lease. R. S. 1899, sec. 1187. (2) The lease shows compliance with this law by its recitals. The term of the lease was for forty years. The exclusive right to manage, use and operate the lines leased was granted by the lessor to the lessee. It must be borne in mind that the question we have under consideration is the negligence of a lessee who is in the entire possession and control of the operation of the property, and over which the...
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