Moorshead v. United Rys. Co.

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

96 S.W. 261

119 Mo. App. 541

MOORSHEAD v. UNITED RYS. CO. et al.

St. Louis Court of Appeals. Missouri.

May 22, 1906.

Rehearing Denied June 5, 1906.

1. STREET RAILROADS—LEASES—ORDINANCES.

A municipal ordinance authorizing enumerated street railway companies and their successors and assigns to severally sell, convey, or lease their property rights, privileges, and franchises to any of the companies enumerated, or to a company designated, its successors and assigns,

and authorizing the company acquiring the property rights and franchises of the enumerated companies to hold the same during the term of the ordinance, authorizes a purchaser of the property and franchises of the enumerated companies to lease the same to the designated company without the special consent of the municipality, notwithstanding Const. art. 12, § 20, forbidding a street railway transferring its franchise without first obtaining the consent of the municipality.

2. SAME—CONTRACTS BETWEEN COMPANIES— CONSTRUCTION — CREATION OF PRINCIPAL AND AGENT.

A street railroad company entered into a contract with another street railroad company, which recited that the former, in consideration of the covenants of the latter, leased its railways, etc. The contract devested the former company of the possession and use of its properties for 40 years in consideration of a specific rent to be paid by the latter company and the performance of other duties in the nature of rent, and provided for the restoration of the property to the former at the end of that term and for re-entry if the latter defaulted in the performance of its covenants during the term. The contract did not provide that the latter should conduct the business in the name or for the benefit of the former, except as in so far as the former was benefited by the consideration to be paid by the latter. Held not to establish an agency, whereby the former company was principal and the latter agent.

3. SAME—CREATION OF PARTNERSHIP.

The contract did not make the two companies partners.

4. SAME—LEASE.

The contract was a lease.

5. SAME.

A contract entered into by one street railway company with another street railway company provided that in consideration of the covenants made by the latter company the former leased its railway to the latter. The latter company agreed to pay an annual rental, to operate the railway of the former at its own expense and make the necessary repairs, to pay all the floating debts of the former, together with assessments of all kinds, and to apply all money not needed for current liabilities or interest turned over to it by the former, or on hand at the date of the lease, or received by the former thereafter from the rent of useless property to the improvement of the demised property. Held, that the former company was not bound to turn over to the latter company any money received by the former from any source, so that whatever rent the latter paid would not be repaid to it.

6. SAME—OPERATION—COMPANIES AND PERSONS LIABLE FOR INJURIES.

Since Rev. St. 1899, § 1187, expressly authorizes a street railway company to lease its property, and since section 4160 provides that when technical words having a peculiar meaning are used in a statute they shall be understood according to their technical import, a street railroad company leasing its property and franchises to another street railroad company is not liable for an injury to a passenger resulting from the negligence of the employés of the latter company; the word "lease" importing a contract by which one person devests himself and another person takes possession of property for a term.

Bland, P. J., dissenting.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Katie A. Moorshead against the United Railways Company and another. From an order sustaining a motion filed by defendant United Railways Company for a new trial after verdict for plaintiff, she appeals. Affirmed.

R. P. & C. B. Williams, for appellant. Boyle & Priest, for respondent.

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 the line of railway on which it was running. The answers filed by the 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 written instrument executed by the two companies and purporting to be a lease. The only evidence relied on to fasten liability for the accident on the United Railways Company was this contract. The jury were instructed to return a verdict against both the defendants if they found the issues for the plaintiff. A verdict against both having been returned, the court sustained motions filed by the United Railways Company for a new trial and in arrest, on grounds equivalent to an express ruling that it was not liable to the plaintiff. Similar motions filed by the Transit Company were overruled. The result was that plaintiff appealed from the order sustaining the motion of the United Railways Company and the Transit Company appealed from the judgment against it, but afterwards dismissed its appeal. The ordinances of the city of St. Louis were put in evidence, one of which is relied on as giving the city's consent to the leasing by the United Railways of the line on which plaintiff was hurt, to the Transit Company. The title and two paragraphs of that ordinance will be copied.

The title is as follows:

"An ordinance for the greater convenience and further transportation of passengers on the railways of the Cass Avenue & Fair Grounds Railway Company, Citizens' Railway Company, Southwestern Railway Company, Southern Electric Railroad Company, St. Louis Railroad Company and Baden & St. Louis Railroad Company, respectively, and for that purpose authorizing change of motive power, the connection of railway tracks respectively, and the running of cars of one or more of said companies on the tracks of one or more of the other companies, and of such companies whose tracks may be intersected by the tracks of either of said companies, with authority to run ambulance, funeral, mail and express cars, and also authorizing if found desirable for said purpose, the sale, conveyance or lease of the rights, privileges, franchises and property of one or more of said companies, and of the companies whose tracks may be so intersected, to another of said companies or to the St. Louis Transit Company, its successors and assigns, and the acquisition thereof, with authority to hold, enjoy and operate the same for a period expiring with the term of the franchise of the Southern Electric Railroad Company, as provided in city ordinance No. fourteen thousand, eight hundred and thirty-seven, and to regulate the speed of cars, and authorizing the Southwestern Railway Company to extend its tracks on Gravois avenue from its intersection with the Morganford road to Bates street, and there to connect with the tracks of the Southern Electric Railroad Company, and extending the time for the completion of its tracks from Grand avenue on Chippewa street and Gravois avenue to the Morganford road, and the Southern Electric Railroad Company to extend its route on Loughborough avenue, Gravois avenue and Bates street, and to operate the same."

The first and third sections of the ordinance read:

"Whereas, it will be to the great advantage of passengers to have the tracks of the Cass Avenue & Fair Grounds Railway Company, Citizens' Railway Company, Southwestern Railway Company, Southern Electric Railroad Company, St. Louis Railroad Company and Baden & St. Louis Railroad Company, respectively, connected, and the cars of said companies respectively, run on the track or tracks of others of said companies: Therefore, the St. Louis Railroad Company is hereby authorized to connect its tracks on Broadway with the tracks of the Citizens' Railway Company at Morgan street and Franklin avenue, and to connect its tracks on Broadway and Walnut street with the tracks of the Cass Avenue & Fair Grounds Railway Company, and its tracks at Broadway and Elm street with the tracks at that point, and to connect its tracks at or near Broadway and Keokuk street with the tracks of the Southern Electric Railroad Company; and authority is given to the Southwestern Railway Company to connect its tracks with the Southern Electric Railroad Company at Chippewa street and Jefferson avenue; and thereupon with the consent of the St. Louis Railroad Company and said Citizens' Railway Company, Cass Avenue & Fair Grounds Railway Company, Baden & St. Louis Railroad Company, Southern Electric Railroad Company and the Southwestern Railway Company, respectively, the cars of said companies respectively, may be run on each other of said companies' tracks respectively, and upon the tracks of any railway company with which any of the tracks of said companies may intersect, and as may be agreed upon between them respectively, and with such companies whose tracks may be so intersected, and for that purpose authority is hereby given to make desirable curves and switches and connections therewith, and the cars shall be run at the same rate of speed on the tracks on which they may run as is now provided by ordinance for the running of cars thereon."

"Sec. 3. For the better effecting the purpose of this ordinance, the said Cass Avenue & Fair Grounds Railway Company, Citizens' Railway Company, Southwestern Railway Company, Southern Electric Railroad Company, St. Louis Railroad Company...