Breslin v. Somerville Horse R. Co.
| Decision Date | 24 September 1887 |
| Citation | 145 Mass. 64,13 N.E. 65 |
| Parties | BRESLIN v. SOMERVILLE HORSE R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
G.A. Bruce and M.F. Farrell, for plaintiff.
OPINIONThe legislature, in granting the charter to the defendant, made it liable "for any loss or injury that any person may sustain by reason of any carelessness, neglect, or misconduct of its servants, in the management, construction, or use of said tracks, roads, or bridges." Acts 1857, c. 250. The claim is that this charter liability has been avoided by the lease of its track to the Middlesex Railroad Company, and the approval thereof by the legislature. Unless the power granting the charter has consented that the defendant should be relieved from the liabilities imposed upon it, it must be liable in this action. We rely, in support of this position upon two decisions by courts of the highest authority, where the precise question before this court has been decided. See Nelson v. Railroad Co., 26 Vt. 717. And the doctrine of that case has been followed by the courts of Illinois and Indiana. See Railroad Co. v. McCarthy, 20 Ill. 385; Railroad Co. v. Dunbar, Id. 624; Railroad Co. v Whipple, 22 Ill. 337. The second case is Railroad Co. v. Brown, 17 Wall. 445. The Massachusetts cases in support of the plaintiff's position are Langley v Railroad, 10 Gray, 103; Ingersoll v. Railroad Co., 8 Allen, 438; Davis v. Railroad Co., 121 Mass. 134. The language of the lease shows that it was not the intention of the legislature, in ratifying them, to relieve the defendant corporation from its charter liability. The lease was made to the Middlesex Railroad Company in 1865, the assignment in 1869, and the ratification took place in 1876. The lease expresses that it was made "subject, however, to all the duties and liabilities imposed upon the Somerville Horse-Railroad Company by its charter." That it was the expectation and intention of the parties to these contracts that the lessor corporation should remain liable to suits is apparent from the provision that the lessee should defend all suits brought against the lessor company, and pay all judgments recovered against it. If there is any doubt about the meaning of the language of these leases, it must certainly be construed against the defendant, for it is clearly against public policy to allow a corporation to relieve itself of a responsibility imposed by its charter, by acts of its own which are secrets to the public with whom it deals, and from whom it gains its revenue.
S. Hoar and W.H. Martin, for defendant.
No question can arise as to the power of the defendant to relieve itself, by its contracts and leases, of all liability for injuries such as the one here complained of; the legislature having confirmed the agreements and leases under which the Union Railway Company operated the road at the time of the injury. The only question is, what is the legal effect of those contracts and leases? Quested v. Railroad Co, 127 Mass. 205. It is a well-settled principle in this court that the party having the exclusive direction and control of the servants running the train at the time of the accident is the one responsible for the negligence of those servants, irrespective of the ownership of the cars, the engines, or the road, unless the legislature, by the charter of the companies or public acts, have decreed otherwise. Fletcher v. Railroad, 1 Allen, 14; Schopman v. Railroad Corp., 9 Cush. 24; Ballou v. Farnum, 9 Allen, 47. In this case, not only by its exclusive control of the operation of the road has the Union Railway Company assumed all liability for the acts of its servants, but by the express terms of the lease under which it operates the road it makes itself "subject to all the liabilities of the" defendant, and has "assumed all liabilities imposed on" the defendant "by its charter, save those incident to its organization and continuance," and agreed to defend all suits brought against the defendant for the acts of the servants of the Union Railway Company; and this express assumption of responsibility by the Union Railway Company the legislature has sanctioned and approved. The covenant in the lease that the lessee, at its own expense, would defend all suits brought against the defendant, and pay all judgments recorded against it, was evidently inserted because the defendant at the date of the lease, and at the date of the assignment of the same to the Union Railway Company, had no authority to make the lease. Pub.St. c. 113, § 56. It was intended to protect the defendant until the leases should be ratified and confirmed by the legislature, which act of confirmation was passed and approved March 22, 1876, and to cover all intervening suits against the defendant. There is, then, nothing in this case to take it out of the ordinary rule of respondeat superior, as laid down by DEWEY, J., in Ballou v. Farnum, ubi supra. The person whose negligence is alleged to have caused the injury in this case was a servant of the Union Railway Company, over whom the defendant had no control, and to whom the defendant was an entire stranger. The defendant, therefore, cannot be held responsible for his acts.
This is an action of tort against the Somerville Horse-Railroad Company to recover for personal injuries. The question presented by the report is whether the plaintiff's right of action, if any, is against the defendant, or exclusively against the Union Railway Company, another street-railway company which was operating the defendant's road under the assignment of a lease. The presiding justice in the superior court ruled that the plaintiff could not maintain his action against the present defendant, and reported the case for the determination of this court upon facts which were not in dispute. Those facts, so far as material, are as follows:
The Middlesex Railroad Company was incorporated by St.1854, c. 434, with power to construct a street railway; and by section 5 was made liable "for any loss or injury that any person may sustain by reason of any carelessness, neglect, or misconduct of its agents and servants, in the management, construction, or use of said tracks, roads, or bridges." The Somerville Horse-Railroad Company, the defendant in this action, was incorporated by St.1857, c. 250, to receive a transfer of the franchise and property of the Middlesex Railroad Company in the town of Somerville; and, upon such transfer being made, the Somerville Horse-Railroad Company was to stand in the place of the Middlesex Railroad Company, so far as the road in Somerville was concerned; and the duties, liabilities, and burdens imposed on the Middlesex Railroad Company were transferred from said company, and imposed upon the Somerville Horse-Railroad Company. This transfer appears to have been carried into effect, and the defendant was in possession accordingly.
In April, 1871, a tripartite agreement was entered into between these two companies and the Union Railway Company, whereby, among other things, the Somerville Horse-Railroad Company agreed to lay a new street-railway track on Milk and Elm streets, in Somerville, and on the completion thereof to lease the same to the Middlesex Railroad Company; and on January 5, 1876, in order to carry into effect the above agreement, a lease thereof was executed accordingly, for and during the unexpired term of the lessor's charter, "upon the like terms and conditions and with all the rights and privileges contained in a certain written instrument, bearing date the first day of June, A.D.1869, and duly executed by the said Middlesex Railroad Company and the said Union Railway Company." This lease did not include the whole of the railroad of the lessor, and no mention was made therein of the lessor's franchise.
Referring now, to the instrument of June 1, 1869, in order to ascertain the terms and conditions of the above lease, it appears that it was a lease from the Middlesex Railroad Company to the Union Railway Company of a certain piece of street railroad in Somerville, theretofore built by the Somerville Horse-Railroad Company, and by it leased to the Middlesex Railroad Company; and the lease of June 1, 1869, was made "subject, however, to all the...
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