Atkinson v. Dismuke & Brother , 11 Ga. App. 521 ( 1912 )

Russell, J.

(After stating the.foregoing facts.) 1. We will decide the points raised in these two separate writs of error together, pointing out, as we go along, those exceptions which are made in the one and not in the other. We shall deal first with the evidence, for the reason that in both motions for a new trial it is insisted that the evidence was not sufficient to authorize the plaintiffs to recover, and that • even if the plaintiffs were entitled to recover some amount, the amount could not be definitely ascertained from the evidence, and that 'even if it be granted that a definite amount could be arrived at, the verdict was excessive. If either of the first two of these contentions were sustained, the defendants would be entitled to a new trial, regardless of the other points in the case. We will deal with the evidence first for the further reason that some of the positions most strenuously maintained, so far as the receiver is concerned, and which were presented after the conclusion of the evidence, in the motion to dismiss and in the motion to nonsuit, were also raised by demurrer at the beginning of the trial.

So far as the evidence relates to the Fitzgerald, Ocilla & Broxton Bailroad Company (which we will hereafter designate the “lessee company”), it appears that it was operating a line of railroad the track of which ran within a few feet of the storehouse in which the plaintiffs’ goods were stored; and the breaking out of the fire in the vicinity almost immediately after the passing of one of its engines, under circumstances which almost necessarily enforce the conclusion that the fire was caused by sparks from this engine and nothing else, in the absence of any explanation, would have authorized the jury to impose upon the lessee company liability for the resulting damage. We bear in mind that under the ruling in the case of Gainesville &c. Railroad Company v. Edmondson, 101 Ga. 747 (29 S. E. 213), liability does not necessarily follow from the destruction of personal property of another by sparks emitted from a passing engine, if it be shown that the appliances, agencies, and instrumentalities used by the railroad company were of the kind in general use and were used with due care; but in the present case the nature of the fire was such as to support the inference that the engine used-by the lessee company was not equipped with such appliances as were and should be in general use, and there was no testimony on the part of the defendant, nor was there evidence introduced by the plaintiffs which would rebut this inference. We conclude that the liability of the lessee company was established by some evidence; and if it was enough to satisfy the jury, we can not, in the state of the record, say it was too little.

As to the indefiniteness of description in the testimony as to the articles described, and the lack of definite proof of their value, while more specific identification of the stock of goods, and more definite testimony as to its value, might have been produced, still we can not say that the jury would not have the right to believe the witness if he had sworn that his stock was one of general merchandise, with the fixtures usual for such stock, and that its value was $15,000. Such a general statement might tend to affect the credibility of a witness, and yet if the jury were satisfied that it was the absolute truth, the objection that the testimony was vague .and indefinite would amount to nothing. It was, no doubt, for this reason, among others, that the court overruled the demurrer addressed to the same point; and we find no error in this ruling.

Having reached the conclusion that the evidence is sufficient to fix liability upon the lessee company, the liability or non-liability of the receiver of the lessor, company must depend upon one of two facts, — the lease must have been made by the receiver, or it must have been adopted by him. As already ruled by this court in Harrell v. Atkinson, 9 Ga. App. 150 (70 S. E. 954), in accord with what we deemed to be the uniform current of authority, a receiver can not be held liable for a tort of the corporation of which he is receiver which was committed prior to his appointment as receiver, but in the present case the tort, if it was committed at all, was inflicted seventeen months after the Atlanta, Birmingham & Atlantic Bailroad Company was placed in the hands of the receiver. There is no contention that the receiver made the lease, but it is undisputed, in the evidence, that the Atlanta, Birmingham & Atlantic Bailroad Company bought all of the assets of the Atlantic & Birmingham Railroad Company, the original lessor, and that during the seventeen months subsequent to the appointment of the receiver he had the right to collect $559.60 each month, as rental, from the Fitzgerald, Ocilla & Broxton Bailroad Company, and that the receiver had made, so far as it appears from the record, mo effort to have himself relieved from the contract of rental, or to call the attention of the United States court to the fact that he was exposed to the liability for the negligence of the lessee company imposed by the code upon any railroad company which occupies the relation of lessor. The documentary evidence sustained the .allegations of the petition, that the Atlantic & Birmingham Bail-road Company, prior to the sale of its property and franchise to the Atlanta, Birmingham & Atlantic Bailroad Company, had leased the branch railroad, upon which the damage hgre involved was •occasioned,'to the Ocilla & Yaldosta Bailroad Company, which in turn, after the Atlantic & Birmingham Bailroad Company had been purchased by the company now represented by the receiver,^ transferred that lease to the Broxton, Hazlehurst & Savannah Bail-road Company, which in turn transferred it to the Fitzgerald, Ocilla & Broxton Bailroad Company. Each of these transfers must' be presumed to have been known to the Atlanta, Birmingham & Atlantic Bailroad Company and to its receiver, because the deed of •conveyance from the Atlantic & Birmingham Bailroad Company to the Atlanta, Birmingham & Atlantic Bailroad Company specifically refers to it, and knowledge of the assets of his cestui que trust must always be imputed to a trustee or receiver, where there is evidence of such circumstances as would put an ordinarily reasonable man on notice. Under our view of the law, the liability •of the lessee company was established; and, the lease being proved, .and the adoption of this lease by the receiver satisfactorily if not incontestibly established, it follows that the verdict is not without evidence to support it, and the grounds assigning various reasons why such is not the case were none of them sustained.

2. Our conclusion that the verdict is authorized by the evidence effects a disposition of the case, but in view of the fact that' this conclusion is at variance with the contentions of the receiver, .as insisted upon by demurrer (both general and special), by motion to dismiss, and by various assignments of error in his motion for a new trial, and as it is our duty to rule upon all of the points presented, we shall briefly state the reasons why, in our judgment, the trial court did not err in overruling the demurrer or in refusing to dismiss the petition, or in charging the jury upon the precise point to -which the exceptions relate. The contention of the receiver, that in no event can he be held liable for damage' resulting from fire set out by an engine of the Fitzgerald, Ocilla & Broxton Bailroad Company, rests upon two propositions: (1) that the fire was not due to the act of the receiver or the act of any of his agents or servants in carrying on the business connected with the Atlanta, Birmingham & Atlantic Bailroad Company, and (2) that if he can be held liable at all, no liability can attach in the-present case, because the lease was made, not by himself, as receiver, nor even by the railroad company which he is operating' and whose estate .he is administering under orders of the United States court, but by the predecessor in title of that corporation. To-quote from the brief, “such act or transaction took place long-before his appointment, and was in no sense an act or transaction of his in carrying on the business- of the Atlanta, Birmingham & Atlantic Railroad Company;” and counsel rely upon the rulings, in Hollifield v. Wrightsville & Tennille Railroad Co., 99 Ga. 365 (27 S. E. 715), Glover v. Thayer, 101 Ga. 824 (29 S. E. 36), and Harrell v. Atkinson, supra, in support of his position. These cases, are not on the point now before us, because in each of them there-was a distinct absence of any affirmative act on the part of the-receiver. In the Harrell case, supra, we held, that the receiver could not be held liable for a tort committed by the corporation before his appointment as receiver, and that where it appeared that the cause of action arose before the receivership, the point might be raised by general demurrer or motion to dismiss. But under the allegations in the 'present petition, the cause of action arose seventeen months after the receiver was appointed.

A correct decision of the vital question raised in this ease must, turn upon the issue as to whether the receiver of a corporation being operated under the orders of the court is subject (just as. was the corporation itself prior to the receivership) 'to the provisions of section 2228 of the Civil Code (1910), and, in the next case, upon whether the facts set up in the petition and its amendment are sufficient- to evidence an affirmative act on the part of the-receiver prior to the alleged tort, whereby he voluntarily assumed liability for torts of the leasing company, imposed by law upon a railroad company which leases to another a portion of its line of railroad. We confess we have not reached a conclusion without some difficulty, largely on account of some of the language used in the case of Glover v. Thayer, supra. It is to be borne in mind, however, that in that case the receiver was in possession of the property of a telegraph company, as an officer of the court, and it was not liability for tort which was sought to be fixed upon him, but rather the effort was made to apply a debt 'alleged to be due by the receiver to the telegraph company, in payment of a judgment which Thayer had obtained against the latter. In the case at bar the pleadings allege and the evidence shows that the railroad company which the receiver is operating is the owner of another railroad, which the receiver permitted to be operated, without objection, by a corporation which holds it under a contract of lease, entered into between its predecessor in title and the railroad company which sold it, subject to the lease, to the railroad corporation operated by the recéiver; and if the mere fact that a railroad is being operated by a receiver will relieve a railroad corporation, which has disposed of a portion of its railroad, from the general operation of section 2228 of the Civil Code (1910), and from liability for torts committed by the lessee or leasing company, then it would only be necessary for a railroad corporation to lease its unprofitable lines to insolvent railroad companies (which might be created for the very purpose of leasing them), 'and thereafter, in a friendly suit, have itself placed in the hands of a receiver, with the knowledge that so long as the receivership continued, the leasing railroad company would be immune from any liability for the torts of the nominal lessee, no matter how great might be the negligence and carelessness with which the latter was operated to the jeopardy of the traveling public. “A corporation charged with a duty to the public' can not, by sale or otherwise, dispose of its property or franchises so as relieve itself from liability for acts done or omitted, without legislative sanction expressly exempting it from liability.” Civil Code (1910), § 2228. Under this section, if the Atlanta, Birmingham & Atlantic Bailroad Company had not been placed in the hands of a receiver, it would clearly be liable for any torts shown to have been committed by the Fitzgerald, O cilla & Broxton Bailroad Company as its lessee; for, under its purchase of the railroad and franchises of the Atlantic & Birmingham Bail-road Company, it became as much the owner of that portion of the railroad from Oeilla to Irwinville (which had been leased) as of any other portion of the line which it purchased, and would have been primarily chargeable for all of the' duties of such a corporation to the public, as if the road had not been leased; and as the railroad was purchased subject to the lease, the provisions of section 2228 were nevertheless applicable. As was well said by the Supreme Court in Gregory v. Georgia Granite Railroad Co., 132 Ga. 590. (64 S. E. 687), “In accepting the grant of rights and franchises from, the State a railroad impliedly assumes the duty of a common carrier. 'The consideration of the grant is the undertaking of the corporation to perform this public duty. 4 Elliott on Railroads, § 1392. A railroad can not divest itself of these public duties, nor shirk its liabilities, by simply allowing another corporation to take possession of its track and operate cars thereon. Ga. R. Co. v. Haas, 127 Ga. 193 (56 S. E. 313, 119 Am. St. R. 327); Civil Code, § 1864.” In view of the reason for this rule, it is immaterial that there is a contract of lease. The effect upon the carrier which owned the railroad and had been granted the franchise would be the same even if the tort was the act of a mere licensee. Euling upon the liability of the railroad company which owns the track, Chief Justice Bleckley used the following language: “There is no less skepticism in law than in theology. This court is called upon again and again for a further revelation of some legal truth which lias already been revealed. After the cases of Macon & Augusta R. R. Co. v. Mays, 49 Ga. 355 [15 Am. Rep. 678], Singleton v. Southwestern R. R. Co., 70 Ga. 464 [48 Am. Rep. 574], and Chattanooga, Rome & Columbus R. Co. v. Liddell, 85 Ga. 482 [11 S. E. 853, 21 Am. St. Rep. 169], it would seem that there could be no reasonable doubt of the liability cf a chartered railroad company permitting another company to run trains over its railway, and thus use its franchise, to respond for any damage occasioned by negligence, whether its own or that of its lessee or licensee.” Central R. Co. v. Phinazee, 93 Ga. 488 (21 S. E. 66). Under our statutes, a corporation which owns a railroad and the franchises may be exempted by express legislative sanction from liability, but no such statute has been passed in behalf of the company whose receiver is the plaintiff in error in the present case. There can be no reasonable doubt that, as a general rule, a receiver of a railroad company, while not suable for torts committed prior to his appointment, in this State stands in the shoes of the corporation whose franchises he is operating, subject to all liabilities which may be created subsequently to his appointment.

3. It is insisted, however, by the learned counsel for the plaintiff in error, that, in order for liability to attach to a receiver, he must do some affirmative act. Under our construction of section 2228, the receiver in this case was liable for any negligence of the company exercising the franchises of the Atlanta, Birmingham & Atlantic Bailroad Company, subsequent to his appointment, though ' not liable (for the reasons stated in Harrell v. Atkinson, supra) for the results of any acts of negligence prior to that time, though the corporation itself might be liable. But if we are wrong in this, and the receiver was unable to set aside or breach the contract, still it appears that -for seventeen months he made no effort to obtain the intervention of the court by which he was appointed and relief from the situation in which he found himself. We think, therefore, that it could be assumed, from the allegations of the petition, and that the jury were authorized to infer from the proof, that the receiver adopted the contract -entered into between the Atlantic & Birmingham Bailroad Company and the lessee company. Even if we narrow the matter to this view of the case, it is well settled that where a receiver has a reasonable time in which to adopt or to rescind a contract, and does not adopt the latter . course, he will be presumed to have elected to adopt the contract, and will be subject to the same'liabilities as if the contract had been originally his own act. So much in response to the argument and citations of the learned counsel for the plaintiff in error. In our opinion the receiver stood in the shoes of the lessor company, and he is liable, not because of the lease (the existence of which, for reasons which we have stated, is immaterial), but because the company of which he is receiver owns the railroad over which the engine which caused the damage was operated, and' because the law puts upon the lessor the burden of responsibility for the acts of the lessee. As receiver he was liable to the same extent that the Atlanta, Birmingham & Atlantic Bailroad Company was liable, because, under the provisions of section 2188 of the Civil Code, “The liability of receivers, trustees, assignees, and other officers operating railroads in this State, or partially in this State, for injuries or damages to personal property, shall be the same as the liability now feed by law governing the operation of railroad corporations in this State for like injuries and damages.” Ball v. Mabry, 91 Ga. 781. If any affirmance, ratification, or other act on the part of the receiver, in approval of the alleged lease, was necessary, as is contended by the plaintiff in error, we think such an affirmance can reasonably be inferred from the fact that the receiver permitted the Fitzgerald, Ocilla & Broxton Railroad Company, whose road connects with the railroad which he is operating and is a part of it, to operate its trains under his very eyes for seventeen months, without protest or objection, over tracks owned by the company of which he is receiver.

4. The fact that the judge declined to charge the jury as requested is not, in our opinion, sufficient ground for reversal, although we think the charge requested should have been given substantially in the language in which it was presented. A party is entitled to have the law applied to the particular facts in testimony, and the presentation of the law concretely applied to the points directly at issue is greatly preferable to a mere statement of the law in the abstract. This court has frequently pointed out that instructions of the former character are much more intelligible to a jury of laymen than the mere statement of an abstract legal proposition. We think, therefore, that the jury should have been told that Dismuke & Brother were not entitled to any amount, unless they had proved that the Fitzgerald, Ocilla & Broxton Bailroad Company actually caused the fire by the negligent acts, or some of them, set out in their petition, and the jury should further have been told, as requested, that a railroad company is not responsible and can not be made to pay for causing a fire, unless the fire was the result of its negligent acts or omission. However, although these instructions, which apply the law directly to the evidence in the case, should have been given, still we think the request was substantially complied with when the judge instructed the jury, more than once, that the plaintiffs could not recover unless they proved every material allegation in the petition, this statement, too, being made after the judge had read to the jury the material portion of the petition and stated the material contentions of both parties.

5. It is insisted on the part of the receiver that the court erred in charging the jury as follows: “In passing upon this case, I charge you. that you should determine what your verdict is as to the Fitzgerald, Ocilla & Broxton Eailroad Company, and, when you have done this, determine whether or not the allegations as to the other defendants have been established. If they have, then you will be authorized to find a verdict against them also, of course, for whatever you determine to find against the Fitzgerald, Ocilla'& Broxton Eailroad Company.” This instruction is not subject to the objection made to it that the jury were thereby instructed that if they found the Fitzgerald, Ocilla & Broxton Eailroad Company liable, then the receiver would be liable also, or that the jury were instructed that the receiver was liable without regard to the special defenses set up by him. The meaning of the charge (and we are certain the jury must have so understood it) was that in no event would the receiver be liable, unless the Fitzgerald, Ocilla & Broxton Eailroad Company was found tó be liable; and that if liable at all, the amount of the receiver’s liability would be the same as that found against the Fitzgerald, Ocilla & Broxton Bail-road Company. Moreover, in another part of his charge the judge gave a clear instruction to this effect; so that the jury could not have been misled by this instruction, which in no event conveyed the meaning stated in the assignment of error.

Judgment affirmed.

Pottle, J., not presiding.