Turner v. Cross

• Citation: 18 S.W. 578
• Parties: TURNER v. CROSS <I>et al.</I>
• Decision Date: 05 February 1892
• Court: Supreme Court of Texas

18 S.W. 578

TURNER v. CROSS et al.

Supreme Court of Texas.

February 5, 1892.

Appeal from district court, Williamson county.

Action by S. S. Turner against H. C. Cross and George A. Eddy, as receivers, for damages on account of injuries resulting in the death of her son. Judgment for defendants, and plaintiff appeals. Affirmed.

J. W. Parker, for appellant. Fisher & Townes, for appellees.

STAYTON, C. J.

Appellant brought this action to recover damages for an injury received by her son, which she alleges was caused by the negligence of the receivers, and resulted in his death, and it is agreed that the only question to be decided is: As the law (article 2899, Rev. Civil St.) stood on the 22d day of December, 1889, is the receiver of a railroad liable as such for injury negligently inflicted upon and resulting in the death of an employe, when the injury is sustained while the railroad is being operated by the receiver? In other words, is the receiver of a railroad operating the road, within the enumeration of the statute, either as proprietor, owner, charterer, or hirer? The court below held not, and therefore sustained a demurrer to a petition, the sufficiency of which is not otherwise questioned. It must be conceded that the action cannot be sustained unless it is given by the statute, and, as it is not claimed that the receivers are liable personally, the only statute which has application to the case is the following: "An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: (1) When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, or hirer of any railroad, steam-boat, stage-coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence, or carelessness of their servants or agents." Rev.St.art. 2899. The action is not against the railway company whose property was in the hands of the receivers, and no inquiry arises whether in a case brought against the company the receivers, under any circumstances, might be deemed its servants or agents. To maintain the action it is necessary to hold that a receiver operating a railway under the appointment and control of a court is, within the meaning of the statute, "the proprietor, owner, charterer, or hirer of any railroad." By "hirer" we understand to be meant one who by contract acquires the right to use a thing belonging to another, and by "charterer" we understand to be meant one who by contract acquires the right to use a vessel belonging to another; and, as the statute embraces subjects to which these terms may be applied, we are of opinion that they were used in their ordinary sense, and we do not understand appellant to contend for any other meaning for them. But it is contended that the receivers were, within the meaning of the statute, "proprietors" or "owners," while appellees contend that these words cannot be applied to any person not holding property in his own right, although conceding that proprietorship or ownership, within the meaning of the statute, may exist without absolute title. It is insisted by appellees that the statute in question is in derogation of the common law, and must therefore be construed strictly; but the rule here invoked has been abolished by statute, which provides that "the rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes, but the said statutes shall constitute the law of this state respecting the subjects to which they relate, and the provisions thereof shall be liberally construed, with a view to effect their objects and to promote justice." Rev. St. Gen. Prov. § 3. The statute in reference to the construction of statutes contains the following: "The ordinary signification shall be applied to words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such art or trade, or with reference to such subject-matter." "In all interpretations the court shall look diligently for the intention of the legislature, keeping in view at all times the old law, the evil, and the remedy." Rev.St.art.3138. These are but statutory declarations of rules of construction which had long been recognized by courts, and the statute but emphasizes their importance.

It is the duty of a court to give to language used in a statute the meaning with which it was used by the legislature if this can be ascertained; and to do this, if the words used be not such as have a peculiar meaning when applied to a given art or trade with reference to which they are used in the statute, the only safe rule is to apply to them their ordinary meaning, for the legislature must be presumed to have used them in that sense in which they are ordinarily understood; and if, so applying them, the legislation in which they are found seems to be harsh, or not to embrace and give remedies for acts for which remedies ought to be given, the courts, for such reasons, are not authorized to place on them a forced construction for the purpose of mitigating a seeming hardship, imposed by a statute, or conferring a right which the legislature had not thought proper to give. It is the duty of a court to administer the law as it is written, and not to make the law; and however harsh a statute may seem to be, or whatever may seem to be its omission, courts cannot, on such considerations, by construction sustain its operation, or make it apply to cases to which it does not apply, without assuming functions that pertain solely to the legislative department of the government. It may be difficult to perceive a good reason why an action should not exist for an injury resulting in death, caused by the negligence of a receiver or his servants while operating a railway under order of court, as for an injury to a passenger not resulting in death, and subject to the same restrictions as to the manner and fund from which a judgment recovered should be satisfied; but this furnishes no reason why the right of action should exist in the one case and not in the other, where in the one the right does not exist unless given by statute, while in the other the right of action exists without a statute conferring it." If a receiver, within the meaning of the statute, is either a proprietor" or "owner," then the ruling on the demurrer was wrong. If he is not, it was right. A receiver is an officer of the court that appoints him, when the law takes possession of the property to which the receivership relates, and in cases of receiverships of railway property under the orders of the court appointing them, receivers often operate railroads, and assume the duties, burdens, and liabilities ordinarily imposed by law upon common carriers, in addition to the ordinary duties attaching to the position; but at all times they are only the agencies of the court, subject to its orders, and having no personal interest in the property in their hands resulting from the existence of the receivership, though responsible officially for the proper management and custody of property confided to their care, and, as other persons, personally responsible for their own unlawful acts working injury to others, but not so responsible for the negligence or unlawful acts of servants they may be compelled to employ in the business confided by the court to their management and control. When lawfully appointed, they are not the representatives of the company or persons when property may be placed in their possession and under their management, though they, in some cases, may be subjected to liability for charges arising under the permission of the courts appointing them, or from the negligence of themselves and their employes.

Examples of such charges upon railway companies' property in the hands of receivers are of almost daily occurrence in these cases in which the receipts of railway business, which are the property of a railway company in the hands of a receiver, are appropriated to the liquidation of claims arising from breach of duty as common carriers; but can such relations as they bear to property placed in their custody and management justify a holding that they are either the "proprietors" or "owners" of a railroad, within the meaning of the statute? One who has the legal right or exclusive title to anything is said to be a "proprietor." Webst. In many instances, if not usually, the word is the synonym of the word "owner." Abb.; Bouv.; Webst. The "owner" is said to be "he who has dominion of a thing, real or personal, corporeal or incorporeal, which he has the right to enjoy and to do with as he pleases, even to spoil or destroy it, so far as the law permits, unless he be prevented by some agreement or covenant which restrains his right." Bouv. "One who owns; a rightful proprietor; one who has the legal or rightful title, whether he is the possessor or not." Webst. Both words convey the idea of property in the thing in right of the person who is said to be the proprietor or owner, and exclude that of a mere possessor in the right of another, although the possession may be coupled with the duty or obligation to take care of, or even to use, the thing in that other's right. Both words are doubtless often used to express right to property in a thing less than absolute or exclusive right, but when this occurs it will ordinarily appear from the context, and in all such cases the person holds for himself and in his own right; and, as stated in brief of counsel: "The right of such a person to the...