
    Wm. N. Hicks v. The I. & G. N. R’y Co.
    (Case No. 5062.)
    1. Damages — Railway company — Receiver.— No action lies against a railway company for injuries inflicted by the negligence of those operating the road, if at the time of the injury it is controlled and operated exclusively by a receiver appointed by a court of competent jurisdiction, with directions to manage and control it as a common carrier. The doctrine announced in I. & GK N. R’y Co. v. Ryan (infra, p. 42), that the mere fact that, at the time the injury was inflicted, the railway belonged to the company, was not sufficient of itself to render the company liable for a tort inflicted by the servants of one who controlled it as a receiver, re-affirmed.
    2. Same — Purchaser of railway.— The liability for damages inflicted by the negligence of the servants of one appointed by a competent tribunal as a receiver of a railway company is, when such receiver is invested with control to the exclusion of the company, the liability of the receivership, and may be enforced against any fund in his hands resulting from the trust subject to its payment, or against the property of the company while controlled by him. A subsequent purchase of the road by the company from one who bought it at a sale made by the receiver under a proper order of court (there being no collusion in the sales), would not render the company liable in damages for torts inflicted by the receiver while operating the road. In-such case the property passes to the purchaser, freed from the claims against the receiver.
    3. Case distinguished.— This case distinguished from Ohio & Mississippi R’y Co. v. Nickeless, 78 Ind., 888.
    Appeal from. Rusk. Tried below before the Hon. A. J. Booty. On the 15th day of July, 1879, appellant filed in the district court of Rusk county an original amended petition against appellee, charging it with gross negligence-in its management, whereby physical injuries resulted to him.
    On the 6th day of January, 1880, defendant filed an amended original answer, in which it demurred generally and specially, pleaded general denial, and specially that at the time the injuries complained of by appellant were inflicted the railway was in the hands of B. S. Hays, as receiver, by order of the circuit court of the United States for the western district of Texas, and that appellee had no control thereof, and other matters not necessary to state.
    Appellant filed a first supplemental petition, in which he excepted to that part of the amended answer which set up the receivership of B. S. Hays, etc., and in addition averred that on 15th day of April, 1879, B. G. Duval was appointed special master by said circuit court to sell all the property of every description vested in the receiver B. S. Hays; that pursuant to an order to that effect he sold the road, etc., on 31st July, 1879; that the sale was confirmed by the circuit court on 4th August, 1879; that Duval, on 14th day of October, 1879, conveyed the property to John S. Kennedy and Samual Sloan as trustees; that on 1st November, 1879, those trustees conveyed the property to the International & Great Northern Bail-road Company; that said railroad company was the owner of the road and all the property vested in the receiver before his appointment, and was during the receivership the owner of the property; that the appellee had during all that time been composed of the same persons, and had been the same corporation and organization, and was liable for all the debts, claims, etc., which accrued against it before, during and since the existence of the receivership, and that the receiver was discharged by the United States circuit court on 31st December, 1879, and immediately turned over the railroad and all the other property to appellee, etc.
    Other matters were pleaded not necessary to notice, nor in view of the opinion is it necessary to state the lengthy charge of the court. Verdict for the defendant.
    
      Wm. Stedman and Jones & Wynne, for appellant,
    on the proposition that the receiver was a trustee for appellee as well as receiver, and that the railroad company^" and not the receiver, was liable for torts committed during his receivership, cited Ohio & Mississippi R’y Co. v. Allen Nickeless (Sup. Ct. of Ind.), and Field on Corporations, sec. 419, p. 456. They also contended that if the same persons who owned the railway, before it was placed in the hands of the receiver, afterwards acquired its ownership by purchase, then the company was liable for injuries resulting from negligence while the road was operated under the receiver. (This idea was embodied in the special charge refused, referred to in the opinion.) Citing St. Joseph & Denver City R’y Co. et al. v. James Smith, as Treasurer, etc., 19 Kan., 225.
    
      F. B. Sexton, for appellee,
    cited: High on Receivers, secs. 1, 178, 254-56, 269-72, 395-98; Ohio & Miss. R. R. Co. v. Davis, 23 Ind., 553; Davis v. Gray, 16 Wall., 218; Wiswall v. Sampson, 14 How., 65-6; Jones on Railroad Securities, sec. 516; Wood on Master and Servant, sec. 412; Bell v. I. C. & L. R. R. Co., 53 Ind., 57.
   Stayton, Associate Justice.

This action was brought by the appellant against the appellee to recover damages for injuries which he alleged were received through the negligence of the appellant or its servants.

It appears that at the time appellant was injured, the railway of the appellee, with all its appurtenances, was in the exclusive control and management of R. S Hays, who had been appointed receiver of the property of the appellee by the circuit court of the United States, at the suit of certain of its mortgage bond holders. The receiver, by the order appointing him, was directed to operate the road as a common carrier, and the appellee was enjoined from in any manner interfering with his management.

Some time after the suit was instituted application was made to the judge of the United States court in which the receiver was appointed, for leave to sue the receiver in the district court for Rusk county. Permission so to sue was refused, probably on account of the delay in making the application.

There is nothing in the record in this case, as there was in the case of the I. & G. N. R. R. Co. v. Ryan, decided at the present term (62 Tex., 42), tending to show a liability on the part of the appellee, unless it can be held that the mere fact that, at the time the appellant is alleged to have been injured, the railway on which he was injured was the property of the appellee, is sufficient to render it liable for an injury resulting from the negligence of the receiver or his servants.

In the case above referred to, that question was considered, and for the reasons there given, and upon the authorities there cited,, without again going into the consideration of the question, we hold that the charge of the court complained of in this case was not erroneous. That charge was as follows: You are further instructed that if you believe from the evidence, that, about the 1st day of April, 1878, that all the property of the International & Great Northern Railroad Company was, by order of the circuit court of the United States for the western district of Texas, placed in the hands of R. S. Hays as the receiver of said railroad company, and that at the time of said injury for which plaintiff sues, the said Hays was still acting as the receiver of said railroad company under the order of the circuit court of the United States for the western district of Texas, then the plaintiff cannot recover, and if you so find, you will find for the defendant.”

This charge was general in its terms, but considered in the light of the uncontroverted facts in proof, which showed that the railway was under the exclusive control and management of the receiver at the time appellant was injured, it was not erroneous.

Any liability which may have existed to the appellant was a liability of the receivership, to be enforced against any fund in his hands subject to its payment. The claim which appellant sought to enforce was not one personally binding on the railway company, although its property while in the hands of the receiver may have been subject to its payment; this being true, the facts that all the property was subsequently sold by the receiver, under proper orders of the court that appointed him, and was purchased by other persons, who subsequently reconveyed the same to the railway company, could not create an obligation on the company which before such reconveyance did not exist.

If the claim of the appellant had been one for which the company was primarily liable, as the appointment of a receiver did not destroy its corporate existence, it would still be liable. The claim, however,, as before said, was not one for which the appellee was liable as a corporation; and it could not become liable by the repurchase of property which it had formerly owned. By the sale made by the receiver, it not being shown to be collusive, the title to the property, the income of which while in the hands of the receiver must have been subject to the payment of appellant’s claim, had it been established against the receiver, passed to the purchaser freed from the claims of those persons holding claims against the receiver, and so the appellee, under the facts shown in this case, took it.

It is not shown in this case that the appellee undertook in any way to satisfy such claims as persons held against the receivership, as it was shown in the case before referred to.

It does not become necessary for us to consider in this case whether the appellant might have brought his suit in a court of law to establish his claim against the receivership, without the consent of the court that appointed the receiver.

[Opinion delivered June 17, 1884.]

The special charge asked by the appellant was correctly refused; for it assumed a state of facts not made by the evidence and pleading, and in many respects, already considered, was erroneous.

The case of Ohio & Mississippi R’y Co. v. Nickeless, 73 Ind., 383, relied on by appellant, has been carefully considered, but we do not see that it has application to this case. It appears in that case that a cause of action existed against the railway company, and that it pleaded in abatement of the action the fact that the road, together with the other property, at the time the suit was brought, was in the hands of a receiver, and that by the orders of the court appointing the receiver, it was forbidden to pay any debt or to adjust any claim. To this plea a demurrer was sustained, and properly sustained ; and the defendant seems to have considered the ruling so manifestly right, that the ruling was not brought in question on appeal by a considered assignment of error.

In the ruling of the court below, in that case, we have simply the ruling that a railway company may be sued for a debt due by it, notwithstanding its property may be in the hands of a receiver at .the time the suit is brought. We see no error in the judgment and it is affirmed.

Affirmed.  