Memphis & C.R. Co. v. Greer

• Decision Date: 28 May 1889
• Parties: MEMPHIS & C. R. Co. v. GREER.
• Court: Tennessee Supreme Court

11 S.W. 931

87 Tenn. 698

MEMPHIS & C. R. Co. v. GREER.

Supreme Court of Tennessee.

May 28, 1889

Appeal from chancery court, Shelby county; B. M. ESTES, Chancellor.

Bill for injunction by the Memphis & Charleston Railroad Company against T. F. Greer. A demurrer to the bill was sustained and complainant appeals.

Poston & Poston, for appellant.

Pitts Hays & Meeks, for appellee.

DICKINSON Special Judge.

The bill charges that defendant, Greer, recovered a judgment in this court for $8,000, for personal injuries, against complainant, the Memphis & Charleston Railroad Company, and that defendant is about to enforce collection of the same that Greer was, at time of injury for which he recovered said judgment, in the employ of complainant as a freight conductor, in charge of a freight train; that there was, at this time, a rule of said company in force prohibiting any person from riding on its freight trains, unless by special permit from the superintendent or train dispatcher, and that this rule was known to Greer, and that it was his duty, as conductor, to enforce it; that at the time Greer was injured one Powell, a kinsman of Greer, was riding on the freight train of which Greer was conductor, without the requisite permit, and in violation of said rule, and with Greer's consent, and that Greer knew he was, in permitting this, violating the rule of the company, which it was his duty to enforce; that in an accident which happened to said train Powell was injured, and that he had sued complainant in the courts of Mississippi for said injuries, in the sum of $5,000; and that the suit was pending at the time of filing this bill. The bill further alleges that the defendant is wholly insolvent, and prays that he be enjoined from collecting $5,000 of said judgment until the termination of the Powell case, and that, in the event judgment should be recovered by Powell, it shall be satisfied out of the $5,000 impounded. Complainant tendered with its bill the excess of the judgment, with interest and costs, in favor of Greer, over $5,000, and the chancellor granted a fiat for the injunction, conditioned upon the execution of a bond in the penalty of $10,000, and the payment into court of said excess,--all of which was done, and the injunction issued. Defendant demurred, and assigned 11 grounds. By consent of parties, the East Tennessee, Virginia & Georgia Railroad Company was allowed to file an amended and supplemental bill, which set up that it was the lessee of complainant's road, and was operating the same, and was the real party in interest in respect of all matters involved in litigation. It also repeated, in substance, the allegations of the original bill. A new injunction bond was given, and it was agreed that the injunction already executed might remain in force. The defendant, Greer, was paid the excess over $5,000, and, upon the execution by him of a refunding bond in the penalty of $10,000, complainant was ordered by the court to pay him the remaining $5,000, which was done. Defendant relied upon the demurrer filed to the original bill, and assigned three additional grounds. The cause was heard upon demurrer, and the chancellor dismissed the bill, and decreed that the refunding bond be canceled, and from this decree complainant appealed.

The grounds of demurrer, 14 in number, are too numerous to be set forth in detail, and, besides, the same question is presented, under separate assignments, in but slightly varying aspects. Summarized and grouped, they present the following propositions, in substance: First. Whether the bill can be maintained under the head of equitable setoff, because of the want of any present subsisting demand against the defendant; the demand set up in the bill being a mere possibility, a contingent liability, that may never be fixed. Second. As the bill is predicated upon a liability to Powell for a wrong, this, by implication, is an admission that complainant has been guilty of negligence; and therefore it should not be permitted to maintain its bill to make defendant liable to it for losses which it has sustained by its own wrongful conduct. Third. That complainant cannot make defendant answerable to it for such losses incurred by injuries to Powell, unless it alleges that the injuries occurred through the default of defendant as a proximate cause, and that the same was in no wise occasioned by any negligence of complainant, either as a proximate or concurrent cause. Fourth. That, though it be alleged that defendant violated his duty, yet this was not the cause of the injury, but that some other independent act of complainant was the approximate cause, and that, therefore, complainant, being itself a wrong-doer, cannot call upon defendant for contribution.

The theory of the bill is that one of the duties of defendant's employment was to prevent persons from riding on the train of which he was in charge, and that, in violation of his obligations to the company, defendant permitted Powell to be in the position where he was injured and thus created relations between Powell and complainant by which complainant might become liable to him. The contention is that, no matter what might have happened to the train, no liability could have arisen to Powell but for wrongful and conscious violation by defendant of a rule which was intended to protect the company from exactly such responsibility, and for the enforcement of which, as one of his express duties, he was employed. Story on Agency, § 217c, says: "Wherever an agent violates his duties or obligations to his principal, whether it be by exceeding his authority or by positive misconduct, or by mere negligence or omission in the proper functions of his agency, or in any other manner, and any loss or damage thereby falls on his principal, he is responsible therefor, and bound to make a full indemnity. In such cases it is wholly immaterial whether the loss or damage be direct to the property of the principal, or whether it arise from the compensation or reparation which he has been obliged to make to third persons in discharge of his liability to them for the acts or omissions of his agent. The loss or damage need not be directly or immediately caused by the act which is done or is omitted to be done. It will be sufficient if it be fairly attributable to it, as a natural result or a just consequence." The above, in substance, is quoted and approved in Walker v. Walker, 5 Heisk. 427. The same author, after citing cases where the agent was held liable for violation of duty, although other causes intervened to produce the injury, says, (section 219:) "In all these cases, although the misconduct or negligence of the agent is not the direct and immediate cause of the loss, yet it is held to be sufficiently proximate to entitle the principal to recover for the loss or damage; for otherwise the principal would ordinarily be without remedy for such loss or damage, since the same objection would apply in almost all cases of this sort." Wharton on Agency, § 253, says: "If loss was immediately attributable to casus, or the intervention of third parties,...