Fort Worth & R. G. Ry. Co. v. Sellers

• Decision Date: 26 April 1922
• Docket Number: (No. 6437.)
• Citation: 242 S.W. 275
• Parties: FORT WORTH & R. G. RY. CO. v. SELLERS et al.
• Court: Texas Court of Appeals

242 S.W. 275

FORT WORTH & R. G. RY. CO. v. SELLERS et al.

(No. 6437.)

Court of Civil Appeals of Texas. Austin.

April 26, 1922.

Rehearing Denied June 7, 1922.

Appeal from District Court, McCulloch County; J. O. Woodward, Judge.

Suit by W. G. Sellers against Avery Turner and another as receivers of the Fort Worth & Rio Grande Railway Company, which was subsequently dismissed as to the receivers, and the company was made defendant. Defendant's motion for peremptory instruction was overruled, and it appeals. Affirmed.

Sam McCollum, of Brady, and Goree, Odell & Allen, of Fort Worth, for appellant.

Joe Adkins and Evans Adkins, both of Brady, and Baker & Weatherred, of Coleman, for appellees.

JENKINS, J.

Appellee Mrs. Minnie Sellers sustained injuries by reason of the negligence of a conductor of the Fort Worth & Rio Grande Railway Company, on January 9, 1916, for which the jury, on the trial of this case, awarded her $1,000.

At the time of such injury, the Fort Worth & Rio Grande Railway Company was in the hands of Avery Turner and G. H. Schleyer, receivers. The receivers were discharged November 3, 1916, and the road, with all of its properties, was at that time returned to the railway company. This suit was filed against the receivers August 7, 1916. On August 21, 1920, appellees filed an amended petition, dismissing as to the receivers and making the railway company party defendant.

Upon the conclusion of the testimony, appellant moved the court to peremptorily instruct the jury to return a verdict for the defendant, which motion was overruled. Appellant excepted thereto, and submits this cause upon two propositions only. One is that the evidence was not sufficient to support a judgment for appellees; the other is that appellees' cause of action is barred by the statute of limitation.

Appellees' amended petition alleged the discharge of the receivers on November 3, 1916, and that said receivers at that time returned the road to the railway company, together with all its properties, and that the railway company received the same, and assumed and agreed, in the proceedings in the federal court, to pay off and discharge all obligations created and all liabilities incurred during said receivership, and in law became liable for such obligations and liabilities, including the damages herein sued for. Appellees offered in evidence the following:

"In the District Court of the United States for the Northern District of Texas at Fort Worth.

"Thomas H. West et al., Complainants, v. Fort Worth & Rio Grande Railway Company et al., Defendants.

"Consolidated Cause No. 678, in Equity.

"Upon consideration of the petition of Fort Worth & Rio Grande Railway Company for the discharge of Avery Turner and G. H. Schleyer, receivers in the above entitled and numbered cause, and for an order requiring said receivers to deliver to said company all of the properties in their hands as such receivers, the court doth find as follows:" Substantially, that the Fort Worth & Rio Grande Railway Company had made arrangements by which it was able to meet its obligations and resume the operation of its road. "That said Fort Worth & Rio Grande Railway Company has filed its petition in this cause for the discharge of receivers herein and has tendered and offered to assume all valid obligations of the receivers herein, and to pay off, when and as the same severally mature, all debts created by the receivers herein. * * * That it is to the interest of all parties concerned in the estate now being administered by said receivers that said receivers shall be discharged as soon as practicable, and that as no necessity for a sale of the property of the Fort Worth & Rio Grande Railway Company exists, and that the receivers herein should be discharged subject to the terms and conditions hereinafter set forth.

"It is therefore accordingly ordered, adjudged, and decreed by the court, as follows:"

(1) This paragraph of the judgment directed the receivers to return all of the railway's property to the Fort Worth & Rio Grande Railway Company as soon as practicable.

(2) This paragraph of the judgment directed the railway company to receive all of its properties "subject to the final disposition by the court in this case of all claims of intervening petitioners that may have heretofore been legally filed herein, and which are now pending and undetermined before the master or before the court in this cause, in so far as said claims are or may be a charge upon the property so to be delivered by the receivers to said railway company, or upon any part of said property, and such claims may be enforced against such property in the hands of said Fort Worth & Rio Grande Railway Company, as the court may determine and direct by orders, judgments, and decrees in such interventions, and the court hereby reserves jurisdiction of this cause for the purpose of finally hearing and determining all such claims and interventions."

(3) "The Fort Worth & Rio Grande Railway Company, its successors and assigns, shall take all of the benefits and shall assume all of the obligations created by those certain contracts entered into by Avery Turner and G. H. Schleyer, as receivers herein under orders of the court heretofore from time to time made and entered in this cause approving or authorizing such contracts."

(4) This paragraph of the judgment retained jurisdiction of the cause for the purpose of enforcing this judgment.

(5) This paragraph of the judgment stated that upon Avery Turner and G. H. Schleyer, receivers, obtaining a receipt from the Fort Worth & Rio Grande Railway Company, showing delivery of the properties held in their possession as such receivers to said Fort Worth & Rio Grande Railway Company, the said receivers and their bondsmen should be discharged from all further liability, and from all further duties as such receivers; but such receivers were continued until final discharge by orders of the court, for the performance of such duties, if any, as might be thereafter specifically required of them by orders of the court.

This judgment was entered November 2, 1916. On November 3, 1916, the Fort Worth & Rio Grande Railway Company executed to the receivers a receipt, showing that they had fully complied with the order of the court.

The contention of appellant is that, for the reason that the evidence as to the proceedings in the receivership does not show that the receivers made betterments, or that they had in their hands and turned over to the railway company, at the time of their discharge, cash sufficient to meet all of their obligations, and because the order discharging the receivers did not specifically state that the railway company was to pay claims of the character herein sued on, therefore the evidence does not warrant a judgment for appellees herein.

For the reason that property in the hands of a receiver is in the custody of the court where such receivership is pending, and the owner of the property has no control over the actions of the receiver, it is held that the receiver is the agent of the court, and not of the owner of the property, for which reason the owner is not primarily liable for obligations incurred by the receiver, arising from either his contracts or torts. However, while courts administer such property primarily in the interest of creditors, they are presumed to do so with due regard for the interest of the owners of the property, and in case of public utilities, such as railway companies, also in the interest...