82 Iowa 369 | Iowa | 1891
I. It appears without question that the defendant, E. L. Dudley, was, at the suit of the Central
It is said that the possession and control of the receiver was as the representative of the company ; that, instead of operating the road through its officers and agents, it was doing so through its receiver. To so hold is to deny liability on the part of the receiver; for, if the operation of the road was by the company, it could not be by the receiver. Officers and agents of the company were subject to its control, and their possession and. acts were its possession and acts; but not so as to the receiver. His possession and control were under orders of the court only. True, the company, like the creditors, had an interest in the manner in which the property was controlled and operated, and might move the court to order the manner of its management; but that interest and that right to ask orders of the court did not make either the company or the creditors the corporation or person operating tips
It is suggested that, as the damages must be paid out of the assets of the company, it is immaterial which defendant the judgment is against, or that it be against both. If, as we have seen, the statute only makes one liable, that is a sufficient reason why the other should not be charged, and an additional reason is that the receivership may be properly and separately managed and accounted for from the affairs of the company. Another reason given why the company should be held liable is that a case might arise wherein the injury occurred while the road was being operated by the receiver, and he be discharged before an action could be brought. It is probably enough to say that such is not this case. We may add that the remedy of the injured party is ample, in that he may prove his claim to the court appointing the receiver, and have an order
We think the undisputed record leads to the conclusion that the Central Iowa Railway Company was not operating the railway at the time of the alleged injury, and is not liable therefor. We do not determine whether the railway company is a proper or necessary party to this action, as that question is not discussed, but only that it was error to enter judgment against the company for damages. We do not hold that the railroad company was not rightly joined in this action, and that relief authorized by law, as the enforcement of a lien under section 1309, or the like, cannot be granted in the action. But no such relief was sought in this case against the railroad company.
II. We next notice the claim of the receiver that there is no issue upon which to base a judgment against
III. The appellee’s right to recover double damage is questioned, upon the ground that there was no
IY. The appellant’s further contention is that the evidence does not sustain the verdict. On the former
In this case, in addition to the testimony as to the position of the animal and the injuries upon her body, there is testimony tending to .show that two trains passed west early that Monday morning; that the ■signal for stock on the track was heard ; that the track-men came for help to take the mare out; that horses’ tracks were found in the snow, showing that some horse had come onto the grade east of the cattle-guard, and traveled west to within twelve or fifteen feet of the .guard, where the tracks ended; and that no track were seen about the guard. The testimony as to the tracks is not contradicted, though there is much conflict as to whether two trains passed, and as to whether •any signals were sounded. With this testimony as to the trains, the injuries upon the left side of the animal, and the position in which she was found, we cannot say there was no testimony from which the jury might find that the animal was struck by a passing train. Indeed, there is no other explanation of why the tracks of the animal were not traceable up to the cattle-guard. It is true the engineer of the passenger train that went west
It is sufficient to say, without further discussion of the testimony, that it at least so supports the verdict that, under rulings of this court, the verdict as to the-defendant, E. L. Dudley, should not be disturbed on that ground. Our conclusion upon the whole record is-, that the judgment of the district court should be reversed as to the Central Iowa Railway Company, and affirmed as to E. L. Dudley, receiver. We may repeat that no question is made as to plaintiff’s right to bring-this action against the receiver, and we assume, therefore, that he does so by authority of the court appointing the receiver. Modified and affirmed.