San Antonio & A. P. Ry. Co. v. Adams

• Decision Date: 24 October 1895
• Citation: 32 S.W. 733
• Court: Texas Court of Appeals
• Parties: SAN ANTONIO & A. P. RY. CO. v. ADAMS et al.

32 S.W. 733

SAN ANTONIO & A. P. RY. CO. v. ADAMS et al.

Court of Civil Appeals of Texas.

October 24, 1895.

Appeal from district court, Lavaca county; T. H. Spooner, Judge.

Action by Francis Adams and another against the San Antonio & Aransas Pass Railway Company to recover damages for causing the death of plaintiffs' son. Judgment for plaintiffs, and defendant appeals. Reversed.

S. C. Patton, for appellant. H. J. Huck, for appellees.

WILLIAMS, J.

The son of appellees was killed October 29, 1891, while in the service of the receivers of the property of appellant, and this suit was brought October 27, 1892, against the appellant, seeking to hold it responsible for the damages resulting to plaintiffs. Under the law then in force, receivers of railways were not liable for damages resulting from the death of persons killed through negligence of their employés, and, in order to show a cause of action against the corporation, the plaintiffs alleged that the appointment of the receivers had been secured by the corporation by collusion with the creditor, at whose suit the appointment was made, for purposes of their own, and that such receivers were in charge of the property, as the agents of the defendant company, when Frank Adams was killed. The pleadings setting up the facts relied on to show a liability were excepted to, but no ruling upon the exceptions appears in the record. We are of the opinion that the plea stated facts sufficient, under the rule laid down in Railway Co. v. Gay, 86 Tex. 606, 26 S. W. 599, to charge the company with liability for the negligence of the receivers as its agents. But the facts alleged are intermixed with statements of matters of evidence, arguments, conclusions of law, etc., which render it unnecessarily lengthy and prolix. Though we would not reverse the case upon this ground, as there was no ruling on the exceptions, we think it proper, as the judgment will be reversed upon other grounds, to call attention to it, and to suggest that the plaintiff be required to replead before another trial is had. Rule 2 for district courts. Upon the subject of the responsibility of the corporation for the negligence of the persons acting as receivers, the court charged as follows: "The power of a court to appoint a receiver being based on the fact of real or imminent litigation between the parties, in which it becomes necessary to take charge of the property by a receiver, in order to preserve it for the benefit of all persons interested, therefore the appointment of persons as receivers who are interested in the act of appointment of a receiver, or the appointment of receivers by collusion or fraud of the parties interested in the property, would be in contravention of the law, illegal, and void; and, in fact and in law, said persons, so appointed, would not be the receivers of said corporation, but would be the agent or agents of said corporation, and said corporation would be liable and responsible for any damages incurred by the negligence of their agent." The charge gives to "the appointment of persons as receivers who are interested in the act of appointment of a receiver" the effect of rendering void the appointment, and of making the person so appointed the agent of the...