Norfolk & W. R. Co v. Cottrell

• Decision Date: 30 June 1887
• Citation: 3 S.E. 123,83 Va. 512
• Court: Virginia Supreme Court
• Parties: Norfolk & W. R. Co. v. Cottrell.

3 S.E. 123

83 Va. 512

Norfolk & W. R. Co.

v.Cottrell.

Supreme Court of Appeals of Virginia.

June 30, 1887.

1. Service of Process—Agent of Corporation—Railroads.

The vice-president and the general superintendent of a railroad company are agents of the corporation, within the meaning and legislative intent of the Virginia statute (Acts 1883-84, p. 701) providing for service of process against a corporation on its president, or other chief officer; in his absence, on any agent thereof, or on any person declared by the laws of that state to be an agent of such corporation.

2. Instructions to Jury—Conditions.

Where the court instructed the jury that if they should believe from the evidence that the plaintiff made the signal to stop in proper time for the train to be stopped, or reduced to a safe speed at the moment of coupling, and if they should further believe that, on account of the want of care on the part of the person having the management and control of the train, the defendant's cars were run together in such a violent and rapid manner as to confuse and frighten the plaintiff, held that, there being no assumption of anything as a proved fact, and the existence of every fact being properly left to depend upon the finding of the jury, from the evidence, the instruction was not erroneous. 8. Master and Servant—Risks of Employment—Contributory Negligence—Minor-

Plaintiff, a brakeman in the employ of a railroad company, who, although a minor, was allowed by his father to find employment for himself, had his hand crushed by being caught between the dead-blocks while coupling cars. According to his own testimony, he thought the cars were coming too fast, and signaled to stop them, but although they did not stop, and hestill thought that they were moving too fast, he stepped in between, and attempted to make the coupling. He understood the construction of draw-heads and dead-blocks, and knew that it was dangerous to get the hand between the dead-blocks. Held, that the plaintiff in accepting the employment, assumed the risks incident to it, and that his injury resulted from such risks, or his own negligence, and that the company was not responsible.

Appeal from hustings'court, Roanoke city.

Griffin & Watts, for plaintiff in error John E. Venn and G. W. Hans-brough, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the hustings court of Roanoke city at the June term, 1886.

The case is as follows: John H. Cottrell, the defendant in error, was a brakeman on the road of the plaintiff in error in November, 1885, when, on the nineteenth of the said month, his hand was mashed off by being caught between two cars. The circumstances attending this accident were that, it being necessary to couple together some cars standing on the main track of the road, and get them arranged and then moved out of the way of the regular trains on the road, one train being shortly due, an engineer named Jones was called, with his shifting engine, already steamed up and ready for work, from a side track, and set about this business. The conductor of the shifting engine was present with his lantern, it being still in the night-time, and also the fireman; and the defendant in error, Cottrell, was on hand to do the coupling. There were five stock cars among these standing cars mentioned above, there being some merchandise cars, which divided the stock cars; three standing west of all the others, and two east of the merchandise cars, next to a gondola car, which was at the east end. The object in view was to put these stock cars together. The merchandise cars were first removed to a siding, when, the engine returning with the gondola and two stock cars, the conductor ordered Cottrell to couple the two stock cars to the three stock cars, as the engine closed them up, coming west, and ke (the said conductor) assumed the duty of uncoupling the two from the gondola when the coupling had been made which fastened the stock cars together. The engine came on with the moving cars, the coupling was made by Cottrell, and the gondola uncoupled, or, as the phrase is, the cars were cut loose by the conductor. When Cottrell, coming close to the conductor, was asked, "How are you fixed, "—aphrase which is said to mean, "Did you make the coupling or not, "—Cottrell replied, "I am ruined, " and held up his mashed hand, which was afterwards cut off by the surgeons, it being destroyed by the injury it had received. Cottrell sued the company, and recovered a judgment for $6,000, from which the plaintiff in error applied for and obtained a writ of error to this court.

The first error assigned here is the refusal of the court below to dismiss the action on account of the insufficiency in the return of the sergeant upon the original process in the case. The return is that it was executed by delivering a copy to Charles G. Eddie, vice-president, at his office in the city of Koanoke, he being a resident of said city, —the president being a non-resident, and absent, etc., also by delivering a copy to Joseph H. Sands, general superintendent of the Norfolk & Western Railroad Company, in the city of Roanoke, Virginia, —said Sands being a resident of said city, —January 16, 1886.

Our statute (Acts 1883-84, p. 701) provides for service on the president, or other chief officer; in his absence, on certain named officers, and if there are none such, or they are absent, then "on any agent thereof, or on any person declared by the laws of this suite to be an agent of such corporation;" which act is as follows: "It shall be sufficient to serve any process against or notice to a corporation on its mayor, rector, president, or other chief of-flcer, or in his absence from the county or corporation in which he resides, or in which is the principal office of the corporation against or to which the process or notice is, if it be a city or town, on the president of the council or board of trustees, or, in his absence, on the recorder, or any alderman or trustee; and, if it be not a city or town, on the cashier or treasurer, and, if there be none such, or he be absent, on a member of the board of directors, trustees, or visitors. If the case be against a bank of circulation, and be in a county or corporation wherein the bank has a branch, service on the president or cashier of such branch bank shall be sufficient; and if the case be against some other corporation, whether incorporated by the laws of this state, or any other state or country, transacting business in this state, or any agent thereof, or any person declared by the laws of this state to be an agent of such corporation; and, if there be no such agent in the county or corporation, publication of a copy of the process or notice, as an order is published under the eleventh section of this chapter, shall together be sufficient. Service on any person under this section shall be in the county or corporation in which he resides, or in which the principal office of the company is located; and the return shall show this, and state on whom and when the service was, otherwise the service shall not be valid."

The defendant in this case was a railroad company; not a town nor a bank. The president was a non-resident, and absent. The vice-president was not the president, nor was he any other person who was chief officer of this company. The chief officer in this case is the president. But the return does not stop with evidence of service of a copy on this officer. It proceeds, "to Jos. II. Sands, general superintendent, " etc. He is not the chief officer of the company; but does he not come within the general terms of the statute which provides for service "on any agent of the corporation, " and do not these words include the vice-president as well? If such be not the chief officer, they are agents of the company. But it is earnestly argued that it must appear that these officers, in the order named in the statute, are either not in existence, —that is, that there are none such, —or that they are absent, before any one named in the statute subsequently can be made available. For example, if the president or other chief officer is not absent, then there is no authority in the law to serve on the cashier; and, if the cashier be not absent, then there is no authority to serve on the treasurer; and that without the absence of all these, there can be no valid service on the members of the board of directors: and unless these are all absent, or not existing, the service on an agent is not authorized.

"Whatever may be the force of this reasoning as to a city, or town, or bank of circulation, the law provides, after naming these, as we have seen, "and if the ease be against some other corporation, whether incorporated by the laws of this state, or any other state or country, transacting business in this state, on any agent thereof;" and further, as if to exclude the argument that such and such an officer was not what the company called an agent, it provides, "or any person declared by the laws of this state to be an agent of such corporation."

While this statute appears to be cumbrous in style, and somewhat involved, it should not be so construed as to render its provisions inoperative, but so as to render the legislative intent effectual. It is obvious from the terms of the statute that the intent of the legislature was to provide a method by which it would be no longer difficult to properly execute the process of the courts upon the corporations in the state; and so we find the most general terms employed, —"any agent." The term "agent" is one of very wide application, and includes a great many classes of persons to which distinctive appellations are given, —as factors, brokers, attorneys, cashiers of banks, clerks, consignees, etc.; indeed, any one who undertakes to transact some business, or to manage some affair, for...