33 Mich. 257 | Mich. | 1876
The plaintiff, a child, was in August, 1869, taken as a passenger on the East Saginaw city railway, and whilst being carried as such passenger was severely hurt through the negligence of the company’s conductor. Eor such injury an
The corporation then brought the case'here on writ of error, and we affirmed the judgment in July of the same year. — 27 Mich., 603. An execution was issued and returned nulla bona, and the plaintiff, having thus failed to collect of the corporation, instituted this action against Brown to enforce collection of him as owner and holder of a considerable amount of unpaid capital stock, and the jury having found against the plaintiff by express direction of the court, he now claims a revision of the proceedings on writ of error and bill of exceptions. The suit, of course, does not assume to proceed for a common-law cause of action against Brpwn, but is prosecuted again st him on the strength of certain provisions of the act under which the company were incorporated, and being the amended act of February 13th, 1855, entitled “ an act to provide for the construction of train railways.” — Ch. 76, C. L.
The main question is, whether the claim of a passenger under such circumstances, after judgment against the carrier and execution returned unsatisfied, affords a ground of action against the stockholder. All admit that the point depends upon the construction due the provisions before mentioned, and these provisions are found in the eighteenth and twentieth sections of the act.
• The, eighteenth section reads as follows: “The stockholders of every company incorporated under this act shall be jointly and severally liable in their individual capacity for all labor performed for such company; and shall also be liable for the debts of such company, for an amount equal to the amount of any unpaid stock in such company, held by them at the time such debt was contracted and suit commenced thereon, to be recovered of any stockholder who is such when the debt is contracted, or any subsequent stockholder.”
“But no suit shall be brought against any individual stockholder for any debt of such company as provided in the last two preceding sections, until judgment on the demand shall have been obtained against the company, and execution thereon returned unsatisfied in whole or in part, or until the company shall have been dissolved; and any stockholder who may have paid any debt of such company, either voluntarily or by compulsion, shall have a right to sue and recover of such company the full amount thereof, with interest, costs and expenses; and any such stockholder, who may have paid as aforesaid, shall have a right to bring an action against, and recover of the rest of the stockholders, or any one or more of them, the due proportion thereof which such stockholder or stockholders ought to pay; and if such action for contribution shall be brought against more than one stockholder, the judgment and the execution thereon shall specify the amount to be recovered and collected from each defendant.”
As understood, the position of plaintiff.’s counsel is, that it makes no difference in respect to the right to sue the stockholder, whether the cause of action against the company is a pure tort, committed by the company through its servants, or one sounding exclusively in contract; and that the judgment recovered against the company is conclusive, or at least prima facie sufficient, to ground an action against the stockholders under the provisions in question.
On the other hand, defendant’s counsel insists, that the cause of action against stockholders is identical with that against the corporation, and that to bring stockholders under
In pursuing this course we must suppose that the mind of the legislature being specially drawn to the subject of departing from the regulations of the common law in regard to the liability of corporators, and conceiving a purpose to make certain members responsible for company liabilities, the extent of the departure and the class of liabilities, if less than all, and the limitations and conditions, if any, would naturally be indicated with some distinctness, and we should expect to find in the terms and arrangement of the statute, without straining or refinement, the real sense of the legislature. Whether in our judgment the legislature went too far, or did not go far enough, is not for us to consider. The scope of our duty is to ascertain just how far the law makers went, and then to pause precisely where they did. In studying the provisions here with this object, we are forced to think that the expressions used to denote the conditions of the stockholders’ liability are to be taken in their natural and ordinary sense.
Passing these general remarks, we are to consider, in the first place, whether it was meant that a judgment, for whatever cause, against the company should be deemed in itself a definite ground of action against • the stockholder. The
We may secondly consider whether the plaintiff’s claim against the corporation in its un adjudicated state was intrinsically a debt contracted by the corporation. Because if it was, he had a contingent right of action, by force of the statute, against Brown as holder and -owner of unpaid stock; and if it was not, he had no such right.
In observing upon this point we cannot help seeing that the legislature evidently designed to limit the liability of stockholders to a portion only of the kinds of liabilities the company would be subject to incur; that necessarily contemplating there would be claims arising out of - contract, and also out of wrongful and tortious acts, and deciding to
The law then draws a line and fixes a limit, and that line excludes claims springing directly from a pure tort.
For example, suppose a person entitled to do so had attempted to cross .the railway track, and, although himself exercising due care, had been run against and injured by the cars by means of the admitted negligence of the company. Had such a case happened, the injured person would have had no eventual remedy against stockholders in their individual character, on the strength of the provisions we are- considering. His cause of action against the corporation would not have consisted of, or rested on, a debt contracted. It would have been for a plain tort and without any thing of contract inducing it, and without any mixture
But the original cause of action of the plaintiff against the corporation in the present case was a different one in its surroundings, in its antecedent and concomitant facts, and it is this difference which causes all the difficulty there is.
A contract relation did actually exist between the plaintiff and the corporation, and the claim of the plaintiff, and the liability of the corporation, were caused by conduct of servants of the corporation in the course of performance of the company’s undertaking. This conduct was at the same time a breach of the contract and a tort.
The company wore carriers of passengers, and the plaintiff was being carried by them upon an undertaking to carry him safely. They did not carry him safely, but, on the contrary, caused him a severe personal injury. For that .injury he was at liberty to sue, either in assumpsit for the breach of contract, or specially on the case upon the negligence of the company. And it may be. said with some reason that the distinction between the form of action and the cause of action should be borne in mind, and that the case ought not to be varied because the law allowed a remedy in form ex delicto as well as ex contractu. On the first view of the subject I was not satisfied that the plaintiff’s claim might not be considered, on the theory hero indicated, a debt contracted, within the sense of the statute, but a closer inspection of the subject has removed that impression.
It is certainly correct to say, that the circumstance that the plaintiff’s grievance was of such character that the law gave him an option as to the form of remedy, and allowed him to proceed in assumpsit or special case, and that the same facts were adducible and proper to support either form, cannot rule the question, or lead to a solution of it. And it is equally true that the circumstance that the wrong was
Keeping in mind the abstract quality of the fact on which the right of the plaintiff to call on the company for redress depended, and passing the artificial methods of redress, and also the circumstance that the fact of injury was done in the course of carrying out the company’s undertaking, we are enabled to perceive clearly that it was a downright tort which called for atonement, for satisfaction, and was not a contracted debt, to be collected if practicable from the company as promissor, and if not practicable, then from stockholders.
There was a liability of the corporation for a real wrong, a tort in a setting of contract, and the plaintiff had the right to enforce such liability in any form of procedure which by law was open to him. He was in a situation to obtain, not a debt the company had engaged for, but such damages for the tortious injury done to him as a jury might find it just and reasonable to award. The enforcement of payment of a contracted debt through a suit at common law is quite similar in principle, when fictions and artificial dis
No doubt the case is a hard one, but we cannot extend the stockholders’ liability further than the legislature have done. Whether the actual circumstances will warrant any mode of proceeding other than an execution, suited to bring about a satisfaction of the judgment, we are not called on to consider.
The judgment is affirmed, with costs.