McGhee v. Willis , 134 Ala. 281 ( 1901 )

MoOLELLAN, O. J.

The integrity of plaintiff’s appointment as administrator of Legg eoul’d not be collaterally questioned in this suit on the ground that the decedent was not a resident of and; left no estate in Jackson county, as was attempted to be done by the 4th plea. The demurrer to- the plea was properly sustained.

Tbe 5th plea presented a good defense to the further prosecution of the action against McGhee and Fink, the sole defendants. They were sued as receivers of the Memphis & Charleston Railroad Company for damages occasioned by fatal injuries to plaintiff’s intestate, alleged to' have been negligently inflicted by the servante of the defendants in tbe operation of the railroad by them as sucli receivers. The plea, was that since the commencement of this suit the defendants had been fully and finally discharged from their receivership' by the courts which appointed them, said courts being named, and had turned over to the Southern Railway Company, their successors, all property which they held as such receivers. By exhibits which are made part of the plea it is made to appear that the Southern Hallway Company had become the- purchaser of all property which defendants held as receivers at a sale, duly confirmed, made in the ca,se in, which they were appointed receivers, and that -they had been discharged from all duties and liabilities as such receivers and their1 bonds as such surrendered to them. The action being against them solely in, their official capacity as receivers — no personal fault or liability being laid against -them — no judgment could be rendered against them in this action. The court erred in sustaining the demurrer to this plea. Bond, Receiver v. Mississippi, 68 Miss. 648, and authorities there cited; Beach on Receivers, §§ 725, 802; High can Receivers, 268, 398b; 6 Rapalje & Mack’s Dig. Ry. Law, pp. 1224-5; Trust Co. v. Central Railroad, 2 McCreary, 181; Reynolds v. Stockton, 140 U. S. 254, 271-2.

The complaint avers that Legg, the intestate, was. employed by defendants as yard master at Stevenson, and that he was required, in connection with other duties, to couple.and uncouple cars, etc. As we are unable to say as matter of law that one who is yard master may not have the duty of coupling and uncoupling ears imposed upon him, and that the averments of the complaint in this connection are false, we cannot appreciate the argument made, in support of the 6th plea. It was palpably a bad plea.

Upon another trial the fact that tire intestate and the engineer or hostler1, Potts, were in the employment of the receivers as distinguished from the railroad coin-pan]' of which they were receivers should be made to appeal*.

In u,o aspect of the case would it have been proper to give -the affirmative charge requested by the defendant on the theory of contributory negligence proved. If Legg at the time of his injuries, was between the third and fourth cars, there is no ground for saying that his presence there was uncalled, for and negligent. And being in control of the train and of the operations of it then going forward, it was, to- say the least, a question for the jury whether his presence between the second and third cars, if they found he ever was there, was negligence on his part. Moreover whether he was at the one place or -the other and though he may be, for the argument, conceded to have .been negligent in being between the cars at all,-or at the particular spot with reference to the dr'awheads and bumpers which he did occupy, yet iti was still open to the jury to find that the engineer was guilty of such negligence, in moving his-engine or allowing it to be moved so as to bring the two parts of tire train together, knowing that Legg was between them and that he had a right to assume that the engine would remain stationary while he was between them, as would impose a liability upon his employers notwithstanding any negligence on the part of Legg in being where he was. — Central of Georgia Railway Co. v. Foshee, 125 Ala. 199; Tanner's Extr. v. Louisville & Nashville Railroad Co., 60 Ala. 621; Louisville & Nashville Railroad Co. v. Brown, 121 Ala 221; Central of Ga. R’y. Co. v. Lamb, 124 Ala. 172.

This is not ai case of dependent relations of the deceased, but one in which tire jury from, a consideration of the life expectancy, health, strength, earning capacity, etc., etc., of the intestate are to say what the life, if not untimely cut off, in its fullness and fruition would have been worth to distributees of his estate when death should finally come in the course of nature. The amount is not capable of definite or even approximate statement in evidence, but is to be found by tire jury as best they may from all the circumstances, capacities and characteristics of the life as it existed up to- the mortal injury. The evidence adduced in this case was properly submitted to tire jury as supplying requisite data for the -estimation of damages by them,, and surely no sum awarded within that claimed in the complaint — $2,000—could be said, on the evidence, to be excessive.

We deem it unnecessary to- discuss the several charges refused to defendant in this case in- detail. We find no- error in the rulings of the court. Most of these charges have reference to the supposed contributory negligence of Legg, and their refusal was justified by considerations adverted to above: They take mo account of the evidence going to show that the injury resulted' from Potts’ negligence operating upon a condition merely that may have been produced by negligence of Legg, nor of the law that in such case the negligence of the injured person does not cause or contribute to the injury. Such of the refused charges as are not of the character just referred to are faulty in affirming the absence of evidence on a given point when there was evidence on it, the 11th charge for instance, or in declaring it t!o have been Legg’s duty to. watch for the running back on him of the engine and cars, when it was open to the jury to find that he had a right to assume that the engine and cars would remain stationary, the 12th charge for instance; or are abstract in respect of some fact assumed, etc., etc.

For the error committed in sustaining the demurrer to defendant’s 5th plea, the judgment must be reversed. The cause is remanded.

Reversed and remanded.