Driscoll v. Nobwich & W. R. Co.

• Decision Date: 01 December 1894
• Citation: 32 A. 354,65 Conn. 230
• Court: Connecticut Supreme Court
• Parties: DRISCOLL v. NOBWICH & W. R. CO.

32 A. 354

65 Conn. 230

DRISCOLL

v. NOBWICH & W. R. CO.

Supreme Court of Errors of Connecticut.

Dec. 1, 1894.

Appeal from superior court, New London county; George W. Wheeler, Judge.

Action by Richard Driscoll against the Norwich & Worcester Railroad Company for personal injuries. There was a judgment for plaintiff for $4,500, and defendant appeals. Affirmed.

Jeremiah Halsey and W. A. Briscoe, for appellant.

William H. Shields and Donald G. Perkins, for appellee.

ANDREWS, C. J. The defendant is a corporation chartered by the states of Connecticut and Massachusetts for the purpose of constructing and operating a railroad from Worcester, in Massachusetts, to Norwich, in Connecticut, and thence to tide water on Long Island Sound. The complaint alleges that the defendant, through its agents and servants, on the 28th day of January, 1893, then having in their possession and control a certain engine and cars, the property of the defendant, and then running and moving the same upon the said railroad in the city of Norwich in the exercise of their franchise and in operating their railroad, so negligently and carelessly managed the same that the plaintiff was thereby greatly cut, bruised, wrenched, and wounded, and was permanently disabled, to his great injury. The defendant suffered a default, and there was a hearing in damages. The court assessed damages to the plaintiff in the sum of $4,500, and the defendant appealed.

The finding of facts, so far as it bears on the questions raised on appeal, is as follows: "(1) On February 9, 1809, the defendant leased its railroad to the Boston, Hartford & Erie Railroad Company, by indenture, a copy of which, marked 'Exhibit A,' is hereto annexed, and made a part of this finding.¹ (2) The New York & New England Railroad Company afterwards succeeded to all the property rights and franchises of the Boston, Hartford & Erie Railroad Company, and on April 20, 1886, assumed the said lease in all its terms, except that by agreement of the parties in interest the annual rental to be paid was reduced from ten per cent. to eight per cent (3) At the time said lease was made no statute authorized the same, but the same was ratified by the provisions of chapter 76, Pub. Acts 1869, approved July 8, 1869, p. 301, and subsequently a modification thereof between the defendant company and the New York & New England Railroad Company was provided for by resolution of the general assembly, approved July 3, 1874 (Priv. Acts 1874, p. 84). (4) Both the New York & New England Railroad Company and the Boston, Hartford & Erie Railroad Company, as well as the defendant company, are corporations created by the general assembly of the state of Connecticut. (5) At the time of the injury hereafter referred to the defendant road was operated under the aforesaid lease by the New York & New England Railroad Company. (6) The defendant has, since the execution of said lease, maintained its organization, elected its officers, including a board of directors, a president secretary, and a treasurer, made its reports to the railroad commissioners of this state as required by law, and has acquired land needed by it and used for the purposes of its railroad. (7) The defendant through its treasurer, during the continuance of said lease, collected and received all receipts from the management and operation of the defendant railroad, deposited them in bank to defendant's credit, and checked them out by checks signed by himself as treasurer. The treasurer paid all bills contracted in the management and operation of the road, some upon his own motion and some upon vouchers certified by officers of the said New York & New England Railroad Company. He also made up the pay rolls, and paid all employes engaged in the management and operation of the defendant railroad, including the engineer and trainmen hereinafter referred to, who caused the said injury. (8) All freight bills, tickets, and printed matter used in the operation of the defendant road were in the name of the New York & New England Railroad Company, with the addition, 'Norwich and Worcester Division'; and some of the cars in use and the engines used at the time of the injury hereinafter referred to were the property of the defendant, and had the name of the defendant painted upon them. (9) At said time the general superintendent of the said New York & New England Railroad Company was the managing agent selected by the said New York & New England Railroad Company to take charge of the defendant's railroad under said lease, and was a person satisfactory to the defendant company. He chose officials who had the power of hiring and discharging all employes, including the employes causing the said injury; and the defendant company had no control over these employes, except in its approval of the choice of said managing agent. (10) The general charge and determination of what expenditures should be made to keep the railroad, bridges, equipment and supplies of the defendant in the condition equal to that when leased, and what additions should be made for increased business, was confided to a managing agent, appointed by agreement by the boards of directors of both roads; and the treasurer of the defendant paid the expenses authorized by such manager for such purposes from the funds received by the treasurer from the income of the road and property. * * * (16) The injury to the plaintiff was caused wholly by the unskilled and reckless management and operation of the defendant's railroad in the manner above stated. (17) The engineer and trainmen in charge of and operating the engine and cars above described which caused said accident were employed, as stated in paragraph 9, to work upon the defendant's railroad, and were paid by the treasurer as stated in paragraph 7. (18) An action for the same cause of action was brought by this plaintiff against the New York & New England Railroad Company, and both causes were tried together by the court at the present session, upon default and hearing in damages, and judgment was rendered for the plaintiff to recover of the New York & New England Railroad Company the sum of four thousand five hundred dollars damages and his costs of suit. (19) Upon the foregoing facts the defendant admitted the negligence of the employes, and the due care of the plaintiff, and offered no evidence and made no claim in contradiction thereof, but asked the court upon the facts found to rule that the defendant was not liable for the injury complained of, and that nominal damages only should be assessed against this defendant; but the court refused so to rule, and assessed substantial damages against the defendant, to wit, the sum of four thousand five hundred dollars."

The defendant appeals from the judgment of the superior court on the sole ground that it is exempt from liability by reason of the indenture which exists between itself and the New York & New England Railroad Company, which is set out in the finding, and which has received the legislative sanction.

The defendant, in its brief, says: "It is a general rule of law that a railroad corporation cannot, by its own act, without the consent of the legislature, absolve itself of its public obligations, upon the principle that, 'where a corporation like a railroad company has granted to it by charter a franchise intended in large measure to be exercised for the public good, the due performance of those functions being the consideration of the public grant, any contract which disables the corporation from performing those functions, which undertakes, without the consent of the state, to transfer to others the rights and powers conferred by the charter, and to relieve the grantee of the burden which the charter imposes, is a violation of the contract with the state, and is void as against public policy.'" This is undoubtedly the law by all the authorities. The rule and the reason for it make the duty and the liability abide with the legal owner of the franchise. Thus, where a lease of a railroad is executed without legislative authority, the lessor remains liable for the laches and the neglect of the lessee, and may be sued therefor the same as though it was itself operating the road; the theory being in such cases that the lessee is the agent of the lessor. So, on the other hand, when the original grantee of a railroad franchise has, with the consent of the legislature, so transferred its property and its franchise to another that the transferee has become the legal owner thereof, then the obligations which grow out of and are the consideration for the franchise are transferred to the new owner. It is precisely as if the public grant had been made to the new possessor; for if the state, through its legislature, has assented to the transfer, the original grantee, in divesting itself of its property and of its right to operate a railroad, has also relieved itself of the obligations which are, for reasons of public policy, incident to and inseparable from the lawful exercise of the right. To this effect are the authorities cited upon the brief of the defendant, as fully as are those cited by the plaintiff.

The question, then, in this case, and the only question, is whether or not the defendant has, with the consent and approval of the state, transferred the legal ownership of its franchise to the New York & New England Railroad Company. The contract made between these parties received the approval of the legislature some months after it was executed, by the act already referred to, which provides that "any railroad company in this state * * * may take a lease of the property and franchises of, or lease its property and franchises to, any such railroad company, * * * and all such leases * * * heretofore made are hereby ratified and confirmed." The legislature can, therefore, be held to have approved no more than the parties have expressed by that contract. So the question is narrowed to an...