Kirby Lumber Co. v. Cunningham

• Decision Date: 12 February 1913
• Citation: 154 S.W. 288
• Parties: KIRBY LUMBER CO. et al. v. CUNNINGHAM.
• Court: Texas Court of Appeals

154 S.W. 288

KIRBY LUMBER CO. et al. v. CUNNINGHAM.

Court of Civil Appeals of Texas. Galveston.

February 12, 1913.

Appeal from District Court, Hardin County; L. B. Hightower, Judge.

Action by R. E. Cunningham against the Kirby Lumber Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Singleton & Nall, of Kountze, and Andrews, Ball & Streetman, of Houston, for appellants. W. D. Gordon, of Beaumont, and John L. Little, of Kountze, for appellee.

REESE, J.

On April 16, 1909, R. E. Cunningham instituted suit against J. S. Rice and Cecil Lyons, as receivers of the Kirby Lumber Company, to recover damages for personal injuries alleged to have been sustained by him while engaged in the discharge of his duties as an employé of the receivers by reason of their negligence in various particulars set out in the petition. It was alleged that the Kirby Lumber Company was at the time of the injury, and at the date of filing of the suit, in the hands of receivers, and the injuries were sustained while plaintiff was in their employment. Prayer was that the receivers and the Lumber Company "through them" be cited, and for judgment against "the receivers in their capacity as such, and the Kirby Lumber Company for whom the receivers are acting." A first amended petition was filed July 24, 1909, against the receivers by name and also the Lumber Company, in which it was alleged that at the time of the institution of the suit the business of the Lumber Company was in the management and control of said receivers, under the general direction of the judge of the United States court at Houston, Tex., and that since, to wit, on or about July, 1909, "the receivership was closed, the receivers discharged, and the business and management of said Kirby Lumber Company fully discharged by the honorable United States court, where the same was pending and its management and control surrendered to its president, John H. Kirby, and the said Kirby is now acting as president, and conducting the business of said company, and said company is now a proper and necessary party to this suit." On September 27, 1909, Rice and Lyons answered as receivers as aforesaid. The Kirby Lumber Company also filed answer on September 27th. Plaintiff filed a second, third, and also a fourth amended original petition. Each of these amended petitions contained substantially the same allegations as to the receivers and the receivership. The case went to trial on the fourth amended petition of plaintiff, and the second amended joint answer of Rice and Lyons and the Kirby Lumber Company. A trial with a the assistance of a jury resulted in a verdict and judgment for plaintiff for $20,000 against the Kirby Lumber Company, and also against J. S. Rice and Cecil A. Lyons as receivers, and the amount "is fixed and established as a lien and charge against the corporate assets of the Kirby Lumber Company under their control and charge as receivers." Rice and Lyons were individually discharged, and no personal judgment rendered against them. From this judgment, their motion for a new trial being overruled, defendants all appeal.

The gist of the action is that while in the employment of said receivers, and while he was being carried from his place of work in the woods to his home upon a flat car being pushed by an engine backwards, the car was derailed, and in consequence thereof plaintiff was injured. The accident was alleged to have been caused by the negligence of said receivers in providing for the transportation of plaintiff a car which was alleged to have been defective in various particulars, in failing to have a person keep a lookout, in failing to have a light on the car, in placing, or allowing to remain, on the track the obstruction which caused the injury, and failing to discover and remove the same. The undisputed evidence indicates that the car was derailed in consequence of striking a stick of wood about two and a half feet long found, after the accident, stuck up in between the ties, and so driven in the ground that, when found, it projected above the ground about six inches, and above the rail about two or three inches. The plaintiff and several others had been working as a loading gang at the end of a spur running out from the main line of defendant's railroad. The engine went out on this spur and brought these men to the main line, and then backed down to another spur running into the woods for the purpose of getting several other men and the tool car in question. At this point on the main line plaintiff and the others with him got off and waited until the engine backed up to the end of the spur where it hooked onto the tool car and brought it with the steel gang back to the main line. There plaintiff and the others, except two, who had in the meantime walked up to where the caboose was, got on the tool car, and the engine, tender, and tool car backing, started up the track to the corral to get the caboose, about 400 yards away. The time was about 6:30 o'clock p. m., November 16th, and it was just about dark, or nearly so. The engine and car had not proceeded more than 30 or 40 yards, and was going about 6 miles an hour, when it suddenly struck an obstruction, and was thrown violently off of and across the track. The men were all thrown off, and several of them, among the others plaintiff, were seriously injured. After the accident, the piece of wood referred to was found imbedded in the ground, slanting in the direction of the car. There were only the engineer and fireman in charge of the train, both in the cab of the engine. There was some evidence that the men had a small fire on a shovel, or something of that kind, on the car, but there was no other light. The car was a small flat car about 12 feet square. The above facts are shown by the undisputed evidence. There was evidence which tended to show that the brasses and wedge over the journal of the axles of the car were worn and broken, causing the car and the sand board to drop down about 1 7/8 inches or probably 2 inches, which would have thrown it about 2 inches above the rail, when, but for the defect, it would have been 4 inches, and that the obstruction referred to struck the sand board and derailed the car. The evidence does not satisfactorily account for the presence of the stick of wood driven up in the track, whether it was driven in the ground before, or whether it was lying on the ground, or fell from the car while in motion, and in some totally unaccountable way was turned up and driven in the ground by the impact of the car, is left to conjecture.

One of the grounds urged by appellant, the Kirby Lumber Company, for a new trial was "Because the evidence and judgment are unsupported by the evidence in the case, in that there was no evidence that Cecil A. Lyons and J. S. Rice, as receivers of the Kirby Lumber Company, had been discharged, or that any property of the Kirby Lumber Company in the control of said receivers had ever been redelivered to the Kirby Lumber Company, or that the property in the control of said receivers had been turned back to the Kirby Lumber Company without sale, or that said receivers or any receivers had made any betterments or improvements upon the property in their charge or in respect thereto, or that there were any earnings of the receivership, or that any earnings of the receivership had been applied or diverted to the betterment and improvement of the property of the Kirby Lumber Company in control of such receivers, or that the Kirby Lumber Company had in any manner been charged with, or assumed liability for, the acts of Cecil A. Lyon and J. S. Rice, as receivers, or that any facts existed by reason of which the Kirby Lumber Company was liable for the acts of receivers of the Circuit Court of the United States in control of its properties."

It was alleged in the petition that appellee was in the employment of J. S. Rice and Cecil A. Lyon as receivers of the Kirby Lumber Company at the time of the accident, and that said receivers were in charge and carrying on the business of said Lumber Company under the order of the United States court at Houston (meaning the Circuit Court of the United States for the Southern District of Texas) at the time of the accident and of the institution of the suit, and that since the institution of the suit the receivers had been discharged, and the business and management of the Lumber Company turned over to its president. Appellee testified: "On November 16, 1908 (the date of the accident), I was living at Fuqua, running a steam loader for the Kirby Lumber Company. The Kirby Lumber Company was then in the hands of a receiver." With this reference, the evidence, so far as the record discloses, takes leave of the receivership. Without this evidence the allegations of the petition bound appellee hand and foot to the facts that he received his injuries while in the service of the receivers and through their negligence, or that of their servants and agents. This essential fact is not affected by the testimony of the witnesses, evidently coemployés of appellee, referred to in appellant's brief, that they were working for the Kirby Lumber Company. If appellee had so testified for himself, it would have been a fatal variance between the allegations and the proof.

This imposed no liability upon the Lumber Company. 34 Cyc. 338; Railway Co. v. Adams, 78 Tex. 372, 14 S. W. 666, 22 Am. St. Rep. 56; Railway Co. v. McFadden, 89 Tex. 138, 33 S. W. 853; Ryan v. Hays, 62 Tex. 42. If it be conceded that the act of 1889 (R. S. art. 1472 et seq.) applies to a receivership in a federal court, in order to make the Lumber Company liable in the present case it would be necessary to allege and prove that the receiver had been discharged and the property of the company redelivered to it, and either that such property was equal in value to the amount of plaintiff's claim, or that the payment of such claim...