Moorshead v. United Railways Co.

• Decision Date: 22 May 1906
• Citation: 96 S.W. 261,119 Mo.App. 541
• Parties: MOORSHEAD, Appellant, v. UNITED RAILWAYS COMPANY et al., Respondents
• Court: Missouri Court of Appeals

96 S.W. 261

119 Mo.App. 541

MOORSHEAD, Appellant, v. UNITED RAILWAYS COMPANY et al., Respondents

Court of Appeals of Missouri, St. Louis

May 22, 1906

Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.

AFFIRMED AND CERTIFIED TO SUPREME COURT.

R. P. & C. B. Williams for appellant.

(1) A railroad corporation without the express consent and authorization of the lawmaking power of the State cannot make a lease of its property or franchises to another corporation such a contract being ultra vires and void. As between the parties, such a contract is non-enforcible, and as to the public for torts committed, in the use of the leased property, the lessee is treated as the agent of the lessor both being jointly liable. Railway v. Brown, 17 Wall. 450; Railway v. Railroad, 130 U.S. 1; Railroad v. Railroad, 118 U.S. 290-630; Thomas v. Railroad, 101 U.S. 71; Railroad v. Bridge Co., 131 U.S. 371; Hart v. Railroad, 209 Ill. 414; McCoy v. Railroad, 36 Mo.App. 445; Markey v. Railroad, 185 Mo. 348; 2 Elliott on Railroads, sec. 430. (2) Even though legislative consent and authorization be given to a railroad corporation to execute or to accept a lease, such legislative permission cannot have the effect of relieving the lessor from the performance of its duties and obligations to the public, but simply validates the lease as between the parties, and the lessor remains liable to the public for the negligent acts of the lessee, the same as before the lease, unless the enabling statute contains an express exemption from liability. Railroad v. Hart, 209 Ill. 414, 70 N.E. 654; Harden v. Railway 129 N.C. 354; Brown v. Railway, 131 N.C. 445; Logan v. Railway, 116 N.C. 940; Railway v. Crane, 113 U.S. 424 (28 L. Ed.) 1064; Braslin v. Somerville, 145 Mass. 64; Quested v. Railway, 127 Mass. 204; McCabe's Adm. v. Railway, 112 Ky. 861; Beach, Private Corporations, sec. 366; Chicago Union Traction Co. v. Stanford, 104 Ill.App. 99; Railway v. Meech, 163 Ill. 305; Railway v. Balkwill, 195 Ill. 535; Railway v. Doan, 195 Ill. 168; Smith v. Railway, 130 N.C. 344; Balsey v. Railroad, 119 Ill. 68, 8 N.E. 859; Tillet v. Railroad, 118 N.C. 1031; Chollette v. Railroad, (Neb.) 4 L. R. A. 135; Par v. Railroad, 43 S.C. 197, 49 Am. St. R. 826; Bower v. Railroad, 42 Iowa 546; Lee v. Railroad, 116 Cal. 97, 58 Am. St. R. 140; Bean v. Railroad, 63 Maine 295; Lakin v. Railroad, 13 Oregon 436; Nelson v. Railroad, 26 Vt. 721; Daniels v. Hart, 118 Mass. 534; Railroad v. Dunbar (20 Ill. 623), 71 Am. Dec. 296 (note); Harmon v. Railroad, 28 S.C. 401; Hawkins v. Railroad, 119 Ga. 159; Phelps v. Steamboat Co., 131 N.C. 12; Pierce v. Railroad, 124 N.C. 83; 5 Thomp. Corp., sec. 5884; Whitney v. Railroad, 44 Me. 362; Stearns v. Railroad, 46 Me. 95; Hart v. Railroad, 33 S.C. 427; Bank v. Railroad, 25 S.C. 216; Railroad v. Morris, 68 Texas 49; Cogswell v. Railroad, 5 Wash. 46; Munz v. Railroad (La.), 64 L. R. A. 222; Aycock v. Railroad, 89 N.C. 330; Benton v. Railroad, 122 N.C. 1007; Railway v. Ferguson, 9 Tex. Civ. App. 610; Railway v. Allen (Tex. Civ. App.), 39 S.W. 125; Railroad v. Ellett, 132 Ill. 660; 23 Am. & Eng. Enc. Law, p. 784, par. b; Railroad v. Owen (Texas Civil App.), 75 S.W. 579. (3) The doctrine of the liability of the lessor to the public for the lessee's use of the leased property, notwithstanding legislative authority to execute the lease, as stated above, has been impliedly held by the Courts of Appeal and the Supreme Court of this State. McFarland v. Railway, 94 Mo.App. 336, 68 S.W. 105; Anderson v. Railway, 161 Mo. 411, 61 S.W. 874; Sinclair v. Railway, 70 Mo.App. 588. (4) The ordinances in evidence fail to show any express assent of the city of St. Louis to the making of the lease, without which the lease is void under the Constitution. Constitution of Mo., art. 12, sec. 20. Authority of the Municipal Assembly under said ordinances to certain named street railway corporations, or their successors or assigns, to lease their property, does not confer upon the successors or assigns of such corporations the power to execute a lease, and the fact that the United Railways Company was the purchaser of said railways, cannot be held to invest it with the same powers that were conferred upon said expressly named corporations. The principle of strict construction of said ordinances forbids the implication of such extension of power. Archer v. Terre Haute, 102 Ill. 493; Elliott on Railroads, sec. 433; Railroad v. Railroad, 81 Pa. St. 104; Singleton v. Railroad, 70 Ga. 464. (5) The instrument in question is not a lease, but it resembles more "a partnership; an operating contract," or a "trust arrangement." In either case the Transit Company would be held as the agent of the United Railways Company. The essential elements of a lease--a determinate estate given the lessee, and absolute and exclusive ownership in the lessee of the term--are wanting in this instrument. Galveston v. Davis, 4 Texas Civil App. 468; Driscoll v. Railroad, 65 Conn. 230; St. Joseph, etc., v. St. Louis, etc., 135 Mo. 173; Railroad v. Cox, 102 F. 825; Archer v. Terre Haute, 102 Ill. 493; United S. Rolling Stock v. Potter, 48 Iowa 56.

George W. Easley with Boyle & Priest for respondent.

(1) We can best serve the court by classifying the cases cited for appellant, and eliminating such as deal with other questions than the operation of the road. The first class of cases to be eliminated is that in which the lease was held invalid because there was no statutory authority to execute the same. All the cases cited in subdivision 1 of appellant's brief are cases of this character, where, for want of statutory authority to execute the lease, the same was held void. It is clear that such cases can have no application to the case at bar, because the statute cited in our statement authorizes the execution of the lease, so that cases of the character cited in subdivision 1 must be eliminated from our consideration of this question. Many cases cited for appellants in subdivision 2 must also be eliminated, because there was no statutory authority for the execution of the lease. Chollette v. Railroad (Neb.), 4 L. R. A. 135; Munz v. Railroad (La.), 64 L. R. A. 222. (2) All that class of cases cited in subdivision 3 of appellant's brief must be eliminated from the consideration of this court, because the lessor is made liable by statute. Smith v. Railroad, 61 Mo. 17; Anderson v. Railroad, 161 Mo. 411, 61 S.W. 874; Maine v. Railroad, 18 Mo.App. 388; Brown v. Railroad, 27 Mo.App. 394; McCoy v. Railroad, 36 Mo.App. 445. Such cases as Quested v. Railroad, 127 Mass. 204, and Daniels v. Hart, 118 Mass. 534, must also be eliminated, because the very act authorizing the lease expressly provided that the lessor should remain liable for the acts of the lessee, notwithstanding the lease. There is nothing of that kind in the street car act of Missouri. (3) Even the Illinois courts have recently begun to distinguish between mere operation of the road and charter duties. Railroad v. Eickman, 47 Ill.App. 156. (4) Counsel also cites a line of Massachusetts cases, of which Quested v. Railroad, 127 Mass. 204, is a sample. An examination of all these cases will show that the act authorizing the lease expressly provided that it should not relieve the lessor from liability. The learned counsel likewise relies upon the case of Nelson v. Railroad, 26 Vt. 721. That case was decided by Judge Redfield, who, in the subsequent editions of his work upon Railroads, distinctly states that the effect of legislative consent was not met or decided in the Nelson case. 1 Redfield on Railways, p. 618, note; see, also Arrowsmith, v. Railroad, 57 F. 176. (5) The rule established in Missouri seems to follow the text-books. "A railway company cannot by a lease, without the consent of the statute, escape responsibility for the acts of a lessee and thus shift the burdens and responsibilities it took upon itself by accepting a charter at the hands of the State or by organizing under the general law. Freeman v. Railroad, 28 Minn. 443; Nelson v. Railroad, 26 Vt. 717; Thomas v. Railroad, 101 U.S. 71; Railroad v. Wynans, 17 How. 30; Black v. Canal Co., 22 N.J.Eq. 130. But with such consent it may undoubtedly do so. Freeman v. Railroad, supra; Mahoney v. Railroad, 63 Maine 68." Brown v. Railroad, 27 Mo.App. 400. The following cases fully sustain the doctrines of the text-books. Pinkerton v. Penn. Traction Co. (Sup. Ct. Pa.), 44 A. 284; Heron v. Railroad, 71 N.W. 706; Hayes v. Railroad, 74 F. 279; Carruthers v. Railroad, 54 P. 673; Arrowsmith v. Railroad, 57 F. 165; Mahoney v. Railroad, 63 Me. 68; Scziwak v. Railroad, 4 Pa. Dist. R. 339; Railroad v. Washington, 10 S.E. 927; Evans v. Railroad, 18 S.W. 493; Buckner v. Railroad, 18 So. 449; Lakin v. Railroad, 12 Or. 436, 57 Am. Rep. 25; Miller v. Railroad, 125 N.Y. 118; Gwathney v. Railroad, 12 Ohio St. 92; Fisher v. Railroad, 34 Hun 433; Railroad v. Mangum, 68 Tex. 342.

GOODE J. NORTONI, J., concurring. BLAND, P. J., dissenting.

OPINION

GOODE, J.

--The petition alleges that plaintiff was hurt by the negligence of defendant's servants in suddenly and violently starting a street car on which she was a passenger and while she was walking in the aisle to a seat. The action was instituted against the St. Louis Transit Company and the United Railways Company and both are alleged to have owned and been engaged in operating the car and line of railway on which it was running. The answers filed by the two defendants were both general denials. Evidence was adduced tending to prove the plaintiff was injured in the manner alleged and that it resulted from the negligent conduct of the car's crew. It is conceded by the plaintiff that the evidence proved the car was operated by the Transit Company under and by virtue of a...