87 Tenn. 698 | Tenn. | 1889
The bill charges that defendant Greer recovered a judgment in this Court for eight thousand dollars, for personal ' injuries, against complainant, the Memphis and Charleston Railroad Company, aud that defendant is about to enforce the collection of the same; that Greer was, at the time of the injury for which he recovered said judgment, in the employ of complainant as a freight conductor in charge of a freight train; that there was, at this time, a rule of said company in force prohibiting any person from riding on its freight trains, unless by special permit from the superintendent or train dispatcher, and that this rule was known to Greer; and that it was his duty, as conductor, to enforce it; that at the time Greer was injured, one Powell, a kinsman of Greer, was riding on the freight train of which Greer was conductor, without the requisite permit and in violation of said rule, and with Greer’s consent; and that Greer knew he was, in permitting this, violating the rule of the company, which it was his duty to enforce; that in an accident which happened to said train ' Powell was injured; and that he had sued the complainant in the courts of Mississippi, for said injuries, in • the sum of five thousand dollars; and that
The bill further alleges that the defendant' is wholly insolvent, and prays that he be enjoined from collecting five thousand dollars of said judgment, until the termination of the Powell case, and that, in the event judgment should be recovered by Powell, it shall be satisfied out 'of the five thousand dollars impounded.
Complainant tendered with its bill the excess of the judgment, with interest and costs, in favor of Greer, over five thousand dollars, and the Chancellor granted a fiat for the injunction, conditioned upon the execution of a bond in the penalty of ten thousand dollars and the payment into Court of said excess; all of which was done, and the injunction issued.
Defendant demurred, and assigned eleven grounds.
By consent of parties the East Tennessee, Virginia, and Georgia Kailroad Company was allowed to file an aprended and supplemental bill, which set up that it was the lessee of complainant’s road and was operating the same, and was the real party in interest in respect of all matters involved in the litigation. It also repeated, in substance, the allegations of the original bill.
A new injunction bond was given,' and it was agreed that the injunction already executed might remain in force. The Defendant Greer was paid the excess over the five thousand dollars; and upon the execution by him of a refunding bond in the
The cause was heard upon demurrer; and the Chancellor dismissed the bill, and decreed that the refunding bond be canceled, and from this decree complainant appealed. .
The grounds ' of demurrer, fourteen in number, are too numerous to be set forth in detail, and, besides, the same question is presented under separate assignments in but slightly varying aspects. Summarized and grouped, they present the following propositions, in substance :
First. — "Whether the bill can be maintained under the head of equitable set-off, because of the want of any present subsisting demand against the defendant; the demand set up in the bill being a mere possibility, a contingent liability, that may never be fixed.
Second. — As the bill is predicated upon a liability to Powell for a wrong, this, by implication, is an admission that complainant has been guilty of negligence; ‘ and therefore it should not be permitted to maintain its bill to make defendant liable to it for losses which it has sustained by its own wrongful conduct.
Third. — That complainant cannot make defendant answerable to it for such losses incurred by injuries to Powell, unless it alleges that the injuries
Fourth. — That though it be alleged that defendant violated his duty, yet this was not the cause of the injury, but that some other independent act of complainant was the proximate cause, and that therefore complainant, being itself a wrong-doer, cannot call upon defendant for contribution.
The theory of the bill is that one of the duties of defendant’s employment was to prevent persons from riding on the train of which he was in charge, and that, in violation of his obligations to the company, defendant permitted Powell to be in the position where he was injured, and thus created relations between Powell and complainant by which complainant might become liable to him. The contention is that, no matter what might have happened to the train, no liability could have arisen to Powell but for the wrongful and conscious violation by defendant of a rule which was intended" to protect the company from exactly such responsibility, and for the enforcement of which, as one of his express duties, he was employed.
Story on Agency, Sec. 217c, says: “ Whenever an agent violates his duties or obligations to his principal, whether it be by exceeding his authority or by positive misconduct, or by mere negligence or omission in the proper functions of his agency, or in any other manner, and any loss or
The above, in substance, is quoted and approved in Walker v. Walker, 5 Heis., 427.
The same author, after citing cases where the agent was held liable for violation of duty, although other causes intervened to produce the injury, says, Sec. 219: “ In all these cases, although the misconduct or negligence of the agent is not the direct and immediate cause of the accident or loss, yet it is held to be sufficiently proximate to entitle the principal to recover for the loss or damage, for otherwise the principal would be without remedy for such loss or damage, since the same objection would apply in almost all cases of this sort.”
Wharton on Agency, Sec. 253, says: “ If the loss was immediately attributable to casus, or the intervention of third parties, this constitutes no defense, if the principal was exposed to such by
Sutherland on Damages, Vol. III., page 8, says, in regard to liability of agents for violation of instructions of principal, as follows: “The instructions may relate to measures deemed expedient by the principal to secure himself against a contingent or possible loss. If these instructions are disregarded the agent will not be heard to say that he is not liable by reason of the uncertainty of the loss if it happens, for it is a loss in contemplation of the parties; the instructions were intended to make exemption from such possible loss certain. After the disregard of such instructions the loss, when it occurs, is- morally the direct consequence of the agent’s breach of duty, whatever may be the immediate physical cause.”
It is said that this principle cannot be applied in this case, because Powell’s injury must have occurred through some negligence of complainant, for otherwise complainant could not be liable to him, and that such negligence, and not the act of Greer, was the proximate cause; and, moreover, Greer, though in default himself, and contributing to the loss of complainant, cannot be held liable to complainant, where its negligence was concurrent and contributed to the injury.
Railroad companies operate trains by subordinate
Freight trains are not adapted to the carrying of persons, either with speed, safety, or convenience. The hazard is far greater upon them than upon passenger trains, which are specially designed and operated for transporting persons. This division, in the manner of performing railway service, is based upon practical experience which has demonstrated that it is in the interest both of the carrier and the general public. It is general in all countries where railways have reached an advanced stage of development. Complainant has limited the use of its freight trains, except in cases where special permit is given, to the transportation for which they are designed, and in view of the greater risk to life and limb upon such trains, and the consequent liability, it imposed upon defendant the duty of excluding persons from the train of which he was conductor, and of preventing the consummation of the contractual relation of common carrier with its attendant liability. The risks intended to be guarded against may have been, and most probably were, those which might result from the negligence of its own servants.
The conductor, in violation of his duty, placed Powell in the position where he was injured, and if such injury was the result of an accident caused by the negligence of complainant’s other servants, he thus, by defendant’s act, acquired the right to recover damages from -complainant. The negligence of the company’s other servants in causing the accident would not have injured Powell but for the misconduct of defendant. But for the act of defendant the train might have been annihilated through the negligence of complainant’s other servants, and yet no injury could have been sustained
The obligation imposed by a rule of law upon complainant as to third parties has nothing to do with the contractual responsibility of defendant. The effect of such a rule as is contended for would be to deprive a principal absolutely of the benefit of a contract, having for its purpose the employment of an agent to protect him, by guarding him in a way fully within his power, against the establishment of conditions, which bring strangers within the radius of injuries ■ that may
It is further argued that, as both complainant and defendant were neglectful, complainant cannot sustain this action, because there can be no contribution between wrongdoers. They do not occupy this relation to each other, for, if they did, then .Powell would have had a right of action against Gfreer, which he did not, as Greer had done him no wrong. He, by virtue of his agency, put him under the protection of his principal, with its legal consequences, and that is what is now complained of. It is not contribution but indemnity that is asked for, from an agent, for a loss occasioned by his misconduct. The action is for a breach of contract, and not against a eo-tort-feasor.
The Chancellor dismissed the bill on the ground that it could not be sustained under any head of equity jurisdiction except that of equitable set-off, and that the essential element of a present, subsisting claim is wanting, and hence complainant has no remedy, however meritorious his right may eventually turn out to be. It is true that complainant has no present, fixed demand, and it may defeat Powell, and hence never have one; but if the allegations in the bill be true as to the contract with defendant, and his violation of duty, then' it is manifest that complainant, in litigating the claim of Powell in Mississippi, is making a contest in the interest of defendant. The action of complainant, which redounds to the benefit of
It appears, therefore, in this ease, that while complainant might have paid the claim of Powell, and thus have acquired such a subsisting right against defendant as would have justified impounding .the fund until it could have been adjudicated, it has pursued a course which is far more to the interest of defendant, and is making a fight in his behalf.
The peculiar relations between the parties, growing out of the facts surrounding the demand, might justify the application of the doctrine of equitable set-off, for, as stated in Parker v. Britt, 4 Heis., 249, “ courts of equity will extend the doctrine of set-off in all cases where peculiar equities intervene between the parties.”
The bill will lie as a quia timet bill, to prevent irreparable . injury, on account of the insolvency of defendant. Such • a bill wsfs sustained when it was brought by a vendee to enjoin the sole devisee of his vendor, from disposing of the devised property, upon the allegation that he had been sued for the land purchased, and might lose it by a paramount title, and that if the property should be aliened
Complainant is not a surety of defendant, and there is no privity between defendant and Powell, and yet it is answering for the default of defendant — a default in respect of which defendant is primarily liable to it the same as he would be under a contract of suretyship. As between them their obligation stands on as high ground, and rights under it should be protected to the same extent. It would be contrary to natural justice to permit Greer, who is insolvent, to collect his entire judgment from defendant, and make way with the money, and, by the interposition of such defenses, defeat the right, and leavS complainant to pay Powell for an injury occasioned by Greer’s wrongful act, and in violation of his contract, - which was to protect complainant against the possibility of answering for such accidents to passengers. Defendant has collected all of the money, and has given a refund
The decree of the Chancellor is reversed, the demurrer is overruled, the refunding bond remains in full force and effect, and the cause is remanded for further proceedings.