Masterson v. International & G. N. Ry. Co.

• Decision Date: 17 January 1900
• Citation: 55 S.W. 577
• Parties: MASTERSON v. INTERNATIONAL & G. N. RY. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

55 S.W. 577

MASTERSON v. INTERNATIONAL & G. N. RY. CO.¹

Court of Civil Appeals of Texas.

January 17, 1900.

Appeal from Brazoria county court; M. S. Munson, Jr., Judge.

Action by Leigh C. Masterson, receiver, against the International & Great Northern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Masterson & Masterson and R. C. Gaines, for appellant. W. B. Munson, for appellee.

NEILL, J.

Harrison Tankersley, as the receiver of the partnership assets of J. H. Tankersley & Bro., hired four mules, the property of the receivership, to James and John Tankersley, for the year 1897. While the animals were in the possession of the bailees by virtue of such contract, they were run over and killed by an engine of appellee under such circumstances as to render it liable in damages for their value. Afterwards James and John made out and presented to appellee their claim of damages for the value of the mules, which, after investigation and consideration, was paid them by the company, amounting to the sum of $205, none of which was paid by the bailees to the receiver. Thereafter, on the 7th day of February, 1898, Harrison Tankersley, as the receiver of said partnership, brought this suit against appellee to recover $195 damages for killing said animals. Pending the suit he resigned the receivership, and the appellee, Leigh C. Masterson, was appointed in his stead, who, as such receiver, made himself party plaintiff to the action. The defense pleaded was the payment of the value of the animals on their demand to James and John Tankersley, in whose possession they were as bailees when killed. The trial resulted in a judgment in favor of the railroad company, and from it the plaintiff has appealed.

The only question presented is, was the payment by appellee of the value of the animals to James and John Tankersley a bar to the receiver's action? By the common law,—which is the rule of decision in this state,—the hirer, by virtue of the bailment, acquires a special property in the thing during the continuance of the contract, and for the purposes expressed or implied by it. Hence he may maintain an action for any injury to it during the existence of his right. The owner has also a general property in the thing, and unless he has, by virtue of his agreement, parted with it for a definite time, he may maintain a like suit against a stranger. But in such a case a recovery by either will be a bar of the action against the other. Hale, Bailm. & Carr. 196; Lawson, Bailm. § 15; 3 Am. & Eng. Enc. Law (2d Ed.) 761; Gillette v. Goodspeed, 69 Conn. 363, 37 Atl. 973; Harker v. Dement, 52 Am. Dec. 671, and note on page 678 et seq.; Chamberlain v. West, 37 Minn. 54, 33 N. W. 114; Russell v....