The Solomon Railroad Company v. Jones

• Decision Date: 01 July 1883
• Citation: 2 P. 657,30 Kan. 601
• Parties: THE SOLOMON RAILROAD COMPANY v. JACKSON S. JONES
• Court: Kansas Supreme Court

2 P. 657

30 Kan. 601

THE SOLOMON RAILROAD COMPANY v. JACKSON S. JONES

Supreme Court of Kansas

July 1, 1883

Error from Mitchell District Court.

ACTION brought by Jones against The Railroad Company, to recover damages for bodily injuries, alleged to have been received by plaintiff while in the employment of the defendant company. January 6, 1882, verdict and judgment for plaintiff for $ 4,250. The defendant brings this judgment here for review. The opinion states the facts.

Judgment reversed and case remanded.

J. P Usher, and Chas. Monroe, for plaintiff in error.

A. H Ellis, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action brought by defendant in error, plaintiff below, to recover damages for personal injuries received, as alleged, while in the employ of defendant. The facts are, that on November 19, 1879, plaintiff was employed in surfacing the track on the line of defendant's railroad. On the morning of that day, he started from Beloit in a hand-car with other laborers. He was working the handle of the car, and after going a short distance the handle broke, in consequence of which he fell out in front of the car and was run over and injured. The case came on for trial in December, 1881, before a jury, and resulted in a verdict and judgment for plaintiff in the sum of $ 4,250. The entire testimony was preserved, and the whole case is before us for review. We shall notice only three questions, they being the only ones of sufficient importance to require examination.

1. Was the verdict against the evidence? and in this plaintiff in error asserts two propositions: one, that the relation of employer and employe is not shown to have existed between defendant and plaintiff, and therefore the defendant was in no wise responsible for what took place; the other, that the testimony does not warrant a finding of negligence against anyone.

2. Did the court err in admitting a certified copy of a petition in mandamus, filed in this court?

3. Did the court err in the seventh instruction, given at its own instance? Of these in their order.

Did the testimony warrant a finding that the relation of employer and employe existed between the parties, so as to render the company liable for any negligence in causing the injuries? This question must be answered in the affirmative. The claim of the railroad company is, first, that the road was constructed under a contract, and that the contractor and not it was responsible for any negligence in the construction; and second, that the road as constructed was on the 10th of November, nine days before the injury, turned over for operation to the Kansas Pacific railway company, and that it and not the defendant was responsible for any negligence subsequent thereto. It appears that the company was organized in August, 1877, and that D. M. Edgerton was the president, and continued to occupy that office until sometime after the injury complained of. He was also vice president of the Kansas Pacific railroad company. On August 17, 1877, at a stockholders' meeting, the president was by resolution authorized to make all necessary arrangements and such contracts as he might deem best, subject to the approval of the board of directors, for the construction of the road from Solomon City to Beloit. In May, 1878, mortgage bonds to the amount of $ 10,000 per mile were authorized. J. P. Usher subscribed 20,000 shares of stock. Outside of this and one or two township and county subscriptions, there were only 15 or 20 shares of stock issued, and these were paid for in services. On the 15th of May, 1878, there was executed a contract by Edgerton, the president, on behalf of the railroad company and J. P. Usher, by which the latter agreed to construct the road, and the company in payment therefor was to give its entire issue of mortgage bonds, all local aid voted or subscribed to the company, and credit said Usher with full payment of his subscription of 20,000 shares. This contract was by Usher formally assigned to Edgerton, the president. On July 1, 1879, at a meeting of the directors, the contract between the president and Usher and his assigns was ratified and confirmed, the contract and the assignment to Edgerton being fully entered on the minutes of this meeting. The records of the directors' meetings also show a resolution authorizing the president to operate the railroad of the company, or to make any agreement or contract he may deem advisable with the receivers of the Kansas Pacific railway company and others for the operation of the road; also another resolution thanking the president for his successful completion of the road; also another resolution authorizing the president to receive from the county of Ottawa the bonds voted by it; also another resolution that H. C. Clements be appointed agent to receive and receipt for all moneys due or to become due from the government of the United States for the transportation of mails, troops, and supplies. These last two resolutions were of date September 30, 1879. These are all the matters that appear upon the records of the directors' or stockholders' meetings in reference to the constructing of the road, or the operation of the same, or in reference to the contract with Usher, and its assignment to Edgerton. Of course, an implication arises from the existence of the contract, that the work was done by the contractor; but there are other facts to be considered. The plaintiff and other laborers testified that they were employed by the defendant. It is not pretended that the employes were notified of this contract, nor that its existence was in any manner made public. The ostensible and active agent was the president of the corporation. Some of the superintendents and principal men in the construction testified that they were in the employ of the Kansas Pacific company, had no other employment, and were sent by it to take charge of the construction of this road. Some of the payments were in Kansas Pacific checks, and some were made by Edgerton personally. There was no report to the company defendant of any arrangement made by the president with the Kansas Pacific for the construction or operation of the road, and no approval by it of any such arrangement. A separate time-table for the road was issued, signed, it is true, by parties who were officers of the Kansas Pacific. There was testimony of some parties that the road was turned over to the Kansas Pacific on November 10, but no notice was given to the employes of a change of employers; and while wages were reduced on the 10th, notice of this reduction was not given till the 1st of December. The company's resolution indicated that something was due and to become due from the government for the transportation of troops, mails, etc.; it authorized the president to apply for and receive the county bonds due it; it congratulated him, as president, on the completion of the road. From these and some other minor matters, it seems to us that the actual facts of the case were that the Kansas Pacific was the real builder and owner of this road; that for reasons not disclosed, it caused the creation of the corporation defendant, and in its name built the road. But there are two good reasons why the jury were justified in holding the defendant as the party responsible in this matter.

Where a corporation is organized for the purpose of doing any work, the work will be presumed, in the absence of any showing to the contrary, to be done by it, and it will be held responsible for all that transpires. Especially is this true of a railroad corporation, for to it alone has the state given the privilege of exercising the right of eminent domain. And where the state grants a franchise of such importance, it has a right to assume for itself and all citizens that the party receiving the franchise is executing the work, and responsible for all that is done in such execution. Indeed, without some authority from the state it cannot transfer the franchise, or divest itself of responsibility; so where all that is patent to the public is the franchise, and the work done under it, the public has a right to treat the beneficiary of the franchise as responsible for the work.

Again, where the president of a corporation appears as the active agent in the execution of a work, all parties employed by him have a right to assume that he is acting for the corporation, and that his acts are its acts and binding upon it. It is not to be presumed that he is an independent contractor. Perhaps a different rule might obtain in the case of a third party, one having no contractual relations with the work. As to that question, it will be time enough to consider it when it arises. Here the plaintiff stood in contractual relations to the work. Nothing was public save the...