Fullerton v. Fordyce

• Citation: 25 S.W. 587,121 Mo. 1
• Parties: FULLERTON v. FORDYCE et al.
• Decision Date: 05 March 1894
• Court: United States State Supreme Court of Missouri

25 S.W. 587

121 Mo. 1

FULLERTON v. FORDYCE et al.

Supreme Court of Missouri, Division No. 1.

March 5, 1894.

RECEIVERS — CARRIERS — PLATFORMS — DAMAGES.

1. Act Cong. March 3, 1887, permitting suit against a receiver, without leave of the appointing court, for any act of his in carrying on the business connected with the property in his charge, applies to a passenger's action for bodily injuries caused by nonrepair of a station platform.

2. When, by the breaking of a plank in a station platform, a hole six feet long and eight inches wide is made, which, though it could be repaired in a few minutes, is left four days unmended and unguarded, the railroad company is liable to a passenger injured thereby.

3. Where the evidence was conflicting as to whether plaintiff was injured in the spine, an instruction assuming the existence of such injuries, and leaving to the jury merely the question of injuries to his hips and abdomen, was erroneous.

Appeal from circuit court, Scott county; H. C. O'Bryan, Judge.

Action by James M. Fullerton against S. W. Fordyce and A. H. Swanson, receivers of the St. Louis, Arkansas & Texas Railway Company, for damages for personal injuries. Judgment for plaintiff. Defendants appeal. Reversed.

The facts appear in the following statement by MACFARLANE, J.:

This is a suit prosecuted by plaintiff against the receivers of the St. Louis, Arkansas & Texas Railway Company, appointed by a United States circuit court, to recover damages for injuries received by reason of falling into a hole in the depot platform of said company at New Madrid, Mo. Plaintiff charged defendants with negligence in not keeping the platform in a reasonably safe condition, by reason of which, on leaving a train at said station, upon which he had been a passenger, he was precipitated into the hole in the platform, and was thereby injured. It appeared from the evidence that the platform was one about four feet above the ground, and from which one plank, about six feet long and eight inches wide, had been broken out. The agents of defendants testified that the plank had been broken by one of themselves, in moving a heavy box of goods, at least four days before the injury. Other evidence tended to prove that it had been out as long as two weeks. Plaintiff arrived on the train in the nighttime, neither the station nor the platform being lighted, and, after leaving the cars, walked across the platform to take a hack to an hotel, and not knowing of the hole, and being unable to see it, he fell therein, by which he received the injuries for which he sued. Defendants objected, in a proper manner, to the sufficiency of the petition. The grounds of the objection were that it nowhere appeared from the petition that plaintiff had leave, from the court appointing the receivers, to prosecute the action, and that the receivers were not liable, officially, for neglect in keeping the platform in repair, unless authorized by the court to do so, which authority should appear from an averment in the petition. These objections were overruled. Objection was made to the ruling of the court in refusing to require plaintiff to submit to an examination by physicians, and to the giving of certain instructions. The other facts necessary to an understanding of the points discussed will sufficiently appear in the opinion. The verdict and judgment were for plaintiff for $15,000, and defendants appealed.

Sam. H. West, for appellants. Wilson Cramer, for respondent.

MACFARLANE, J.

1. Receivers who have exclusive charge and control of the property belonging to a railroad company, and of the management of its business, are bound to the same degree of care as the corporation itself would have been under the management of its board of directors, and are in like manner liable, in their official character, for injuries resulting from the negligence of themselves or their agents and employes. "Being actually engaged in business, justice to those with whom they deal demands that they shall be held to the same accountability, whether their liabilities arise in contract or in tort." Beach, Rec. § 717; Little v. Dusenberry, 46 N. J. Law, 641; High, Rec. § 395; Ror. R. R. 898.

2. Previous to the act of congress of March 3, 1887, the generally accepted doctrine was that an action could not be maintained against a receiver except by leave of the court wherein the receiver was appointed. That act declares that "every receiver * * * may be sued in respect of any act or transaction of his, in carrying on the business connected with such property, without the previous leave of the court, in which said receiver or manager was appointed." The language of this statute is broad enough to include actions growing out of the negligence of the receiver or his agents or servants. So, it has been held by the supreme court of the United States that such suits are within the contemplation of said act. Railroad Co. v. Cox, 145 U. S. 601, 12 Sup. Ct. 905; McNulta v. Lochridge, 141 U. S. 327, 12 Sup. Ct. 11.

3. After plaintiff had concluded his evidence in chief, defendants filed a written application, asking an order of the court against plaintiff to submit himself to a personal examination, by competent and special surgeons appointed by the court, giving as reasons therefor that the real extent of plaintiff's injuries could only be ascertained by such an examination. The court declined to make the order, for the reason, as stated, that the application was not made in time. There is no doubt of the power of the court to make and enforce such an order; but to do so is held to be a matter within the discretion of the court, which should not be interfered with unless clearly abused. Owens v. Railroad Co., 95 Mo. 177, 8 S. W. 350, and cases cited. There may be reasons, which do not appear on this record, why an examination should not have been ordered at the time it was applied for, and we are unwilling to say that the court abused its discretion in declining to make the order. This is certainly a case which calls for the opinion of disinterested and unbiased physicians, after a careful, intelligent, and thorough examination has been made. The physicians who testified are friends of the respective parties, and their opinions are necessarily more or less biased. They differ upon matters which seem to me to be capable of positive ascertainment. As the case will have to be retried, the...