Memphis & C.R. Co. v. Glover

• Decision Date: 21 January 1901
• Citation: 29 So. 89,78 Miss. 467
• Parties: MEMPHIS & CHARLSTON RAILROAD COMPANY v. PETER S. GLOVER et al
• Court: Mississippi Supreme Court

29 So. 89

78 Miss. 467

MEMPHIS & CHARLSTON RAILROAD COMPANY v. PETER S. GLOVER et al

Supreme Court of Mississippi

January 21, 1901

FROM the circuit court of Alcorn county. HON. EUGENE O. SYKES Judge.

Glover and another, the appellees, were plaintiffs in the court below; the railroad company, the appellant, was defendant there: The defendant sued, under code 1892, § 3561, for the statutory penalty imposed upon railroads for failure to construct or maintain necessary or proper cattle guards and stock gaps where their tracks pass through inclosed land. The suit was originally against Charles M. McGhee and Henry Fink receivers of the (original) Memphis & Charleston Railroad Co., who were, at the beginning of the suit, and had been for several years, operating the railroad. The receivers demurred to the declaration, but the demurrer was overruled. Before any other steps were taken in the case, the railroad was sold and the receivers discharged. The original defendants pleaded their discharge, and their plea was adjudged to be valid and sufficient. Plaintiffs then sought by appropriate proceedings to revive the suit against the (new) Memphis & Charleston Railroad Co., a Mississippi corporation which had purchased that part of the railroad which lies in this state. The last named company appeared and moved to quash the proceedings to revive the suit on the ground that it was unauthorized by law, and also because plaintiff's action was barred by limitation. The court below overruled the motion, whereupon the railroad company (the new one) answered the proceedings to revive. Its answer was adjudged insufficient, and the cause was revived against it. It then pleaded to the declaration, and a trial was had upon the merits, resulting in a judgment for plaintiff, from which the railroad company (the new one) appealed to the supreme court.

Judgment affirmed.

W. J Lamb, for appellant.

The duty to construct and maintain all necessary or proper stock gaps and cattle guards is not imposed by the common law upon railroad companies. It is a duty imposed alone by statute and the statute in this state imposes this duty alone upon the railroad company, and it does not impose this duty upon the receivers of railroad companies, and the court cannot extend the provisions of the statute so as to include receivers. The statute imposing this duty upon railroad companies is a penal statute and must be strictly construed, and cannot be extended by implication so as to include within its provisions receivers of railroad companies.

Code 1892, § 3561; Railroad Co. v. Dixon, 61 Miss. 119; Fairchild v. Railroad Co., 62 Miss. 177; Bond v. Railroad Co., 23 Am. & Eng. Railroad Cases, 608; L. & E. W. Ry. Co. v. People, 42 Ill.App. 387; State v. C., R. I. & P. Ry. Co., 19 Mo. App., 104; Railroad Co. v. Anderson, 76 Miss. 582.

The receivers, the appointees of the United States circuit court, are owners neither of the receipts of the road nor of the road from which they are derived. If the owners of the road are not to bear the penalty of their neglect, we are at loss to know who should bear this burden. Certainly not the receivers, who are operating this road under an order of the United States circuit court, Hoechner v. Railroad Co., 67 F. 456; Railroad Co. v. Commonwealth, 13 Am. & Eng. Railroad Cases, 369; Railroad Co. v. Russell, 23 Am. & Eng. Railroad Cases, 151; 2 McCrary U. S. Cir. Rep., p. 444.

Where, by a statute, an absolute duty, liability or penalty is imposed upon a railroad company, the corporation is liable therefor, notwithstanding its affairs have passed into the hands of a receiver. 20 Am. & Eng. Enc., 391; Beach on Receivers, sec. 723; Railroad Co. v. Cauble, 46 Ind. 277; Railroad Co. v. Wood, 24 Kan. 619; Railroad Co. v. Fitch, 20 Ind. 498; Railroad Co. v. Russell, 115 Ill. 52.

Receivers cannot be held to a specific performance of a contract made by a railroad company. Then, how can they be held liable for a penalty incurred by the negligence of the railroad company? Beach on Receivers, sec. 725; Henderson v. Walker, Receiver, 55 Ga. 481; Brown et al. v. Warner, 45 Am. & Eng. Railroad Cases, 96.

There is no statute in this state which allows a scire facias to issue against a corporation, and our statutes which give the right to revive by such a writ only applies to natural persons, and the railway company's motion to quash the writ of scire facias should have been sustained.

Our statutes for bringing in parties to pending suits relates to natural persons only. Therefore the writ of scire facias does not lie in this case. Torry v. Robertson, 24 Miss. 192; Shackleford v. Railroad Co., 52 Miss. 159.

It is contended by counsel for appellees that § 669 of the code of 1892 gives them the right to have this case revived against the Memphis & Charleston Railroad Company. This statute cannot be made to embrace a case like the one now before the court. The statute provides that no suit shall abate against public officers in their official capacity, or by or against trustee or commissioners, or by or against those who occupy a similar position. The statute specifically provided for those against whom or for whom a suit shall not abate, and it does not make any provision that will include a case like this one.

The Memphis & Charleston Railroad Company, appellant, is not the successor of the receivers of the old Memphis & Charleston Railroad Company, either in right, title or interest.

The decree of the United States court made the Southern Railway Company liable for any and all liabilities of the receivers, in case there is any liability, and, if there is any liability to the appellees, it is the Southern Railway Company that owes it, and not the Memphis & Charleston Railroad Company.

The Memphis & Charleston Railroad Company, in its answer to the scire facias, also relies on the statute of limitations as a reason why this suit should not be revived against it, and says that, if the appellees ever had the right to have their suit revived against it, they lost their right by reason of the fact that more than one year had passed since the right of action accrued to the appellees. The statute of limitations having commenced running while the road was in the hands of receivers, it continues to do so, and their discharge does not stop the statute. Robertson v. Alford, 13 Smed. & M., 513; Abbott v. McElroy, 10 Smed. & M., 100.

The statute of limitation as a defense was perfect and complete when the appellees moved to revive, and it must be a complete defense to their right to revive. Flatlet v. Railroad Co., 9 Heis., 230; Grinder v. Stephens, 1 Heis., 280; Crofford v. Cothran & Neil, 2 Smed, 275; Ross v. Sims, 27 Miss. 361; Railroad Co. v. Orr, 52 Miss. 541.

Mayes & Harris, on same side.

It is settled beyond any question, since the decision of this court in the case of Shackleford v. Railroad Co., 52 Miss. 159, that a writ of scire facias does not lie to revive an action against a corporation. Since that decision was rendered there have been two revisions of the laws of this state, 1880 and 1892, in neither of which has any provision been made to meet the decision in this case. Two codes have been adopted since the decision in Railroad Co. v. Shackleford, supra, and the court must read the statutes in the light of that decision, and it must be taken as settled that the legislature intended to leave the law of this state to stand as announced in that decision. The motion, therefore, to quash the writ Of scire facias in the case at bar should have been sustained, and the judgment rendered against the Memphis & Charleston Railroad Company should be set aside. Section 669 of the Code of 1892, which is relied on by the counsel for the appellee, is not at all applicable to a case of this character.

J.. M. Boone, for appellee.

The court did not err in overruling the demurrer to the declaration. The liability of the receivers is absolutely settled by the United States statute, the judiciary act of 1875, as amended in 1887 and 1888, approved August 13, 1888, 25 St. at L., 433, which provides, "that, whenever in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the state in which such property shall be situated, in the same manner that the owner or possessor would be bound to do if in possession thereof." This act, also found in Foster's Federal Practice, 653, is held to apply to all courts, state and federal. Malott v. Shiner, 153 Ind. 35, S. C. 74 Am. St. Repts., 278. Prior to this statute some of the states had held that a receiver of a railroad was not subject to regulation by state statutes, and as most of the railroads were then in the hands of receivers, our Senator George made his great fight in the passage of this act, and made many radical changes. Section 4336 of the code of 1892 in its definition of a railroad is also sufficient answer to this contention.

Independent of either of the above statutes, receivers of railroads are liable under said section. Beach on Receivers, sec. 717, speaking of the liability of receivers, especially of railroads, says: "Being actually engaged in business, justice to those with whom they deal demands that they shall be held to the same accountability, whether their liability arises in contract or tort."

In Little v. Dusenberry, 46 N. J. Law, 641, the liability of receivers is discussed and many cases reviewed, and the court, all the judges concurring, say: "It can hardly be said, as a result of an examination of these and many other cases referred to in them, that it is settled that a receiver of an insolvent railroad corporation may...