And in regard to an entry of judgment against receivers, among others, for an injury caused by a failure duly to inspect a car, the court said that the original liability of the receivers who were operating the road when the injury occurred could not be questioned, and that the judgment was not against them individually, but officially, and was authorized by statute. Eddy v. Prentice, 8 Tex. Civ. App. 63, 27 S. W. 1063.

In Fuller v. Jewett, 80 N. Y. 46, 36 Am. Rep. 575, a receiver operating a railroad was held liable in damages as receiver for an injury sustained by an employee through the bursting of an engine negligently inspected by a coemployee.

An application by judgment creditors to compel a receiver to pay over funds in his hands to the credit of their judgment was denied upon its appearing that the receiver was threatened with an action for false imprisonment for a proceeding ostensibly brought by him, but really instituted in his name by the attorneys for the judgment creditors and for the benefit of the fund. The court heid that under such circumstances the receiver would be liable in his official capacity, and that the fund in court would be subject to the claim of the injured party. Morris v. Hiler, 57 How. Pr. 323.

In Louisville Southern R. Co. v. Tucker, 105 Ky. 492, 49 S. W. 314, an action for damages for the negligent killing of a brakeman, prosecuted against both a railroad company and its receiver, judgment was rendered against both, but upon appeal reversed as to the company and allowed to stand against the receiver only, as the representative of the court, on the ground that the company was not liable for his acts or those of his employees.

Similarly, in Brockert v. Central Iowa R. Co. 82 Iowa, 369, 47 N. W. 1026, a judgment for damages for injury to stock was affirmed as to a receiver but reversed as to the railroad company, when it appeared that the receiver was in possession of the railroad and operating the same at the time the injury was committed.

And in Union P. R. Co. v. Smith, 59 Kan. 80, 52 Pac. 102, it appearing that all the property of a railroad company was under the control of receivers, and that they alone were repsonsible for the acts of employees, it was held that recovery for an injury sustained by a third party through the negligence of employees could be had against the receivers only, and judgment against the railroad company jointly with the receivers was set aside and allowed to stand only against the latter.

So, in St. Louis & S. F. R. Co. v. Bricker, 65 Kan. 321, 69 Pac. 328, a judgment in an action for personal injuries was set aside as to the corporation but affirmed as to the receiver, where it appeared that the latter was operating the road at the time the injury was sustained.

Where the assignment of receivers was procured by a railroad company for its own benefit for the purpose of temporarily placing its property beyond the reach of its creditors, and of aiding and assisting it in making certain betterments and improvements on its property, and of enabling it to relieve itself from temporary financial embarrassment, it was held, in Stewart v. Baltimore & O. R. Co. 8 Ohio N. P.

jury sustained through the operation of the railroad, during the receivership, that under such circumstances the receivers would be treated as the agents of the corporation, which would be held liable for their torts the same as any other principal is liable. It is said, obiter, that where the property of the railroad corporation is seized by its creditors, and a receiver appointed on their application, then the proposition that the corporation should not be liable for torts of the receiver or its employees would have a perfectly just application.

In Brown v. Comer, 97 Ga. 801, 25 S. E. 176, one of the adherents to the rule of Henderson v. Walker, 55 Ga. 481, infra, II. d, 1, it was contended that that case did not apply, because the railroad property was put into the receiver's hands upon the corporation's own petition; but the contention was not sustained.

See also, generally, supra, II. b.

d. Liability as common carriers when operating

railroads.

In giving permission to a petitioner to sue at law to recover damages for a personal injury sustained in consequence of the negligence of the employees of the receivers of a railroad company, the court says, in Klein v. Jewett, 26 N. J. Eq. 474: "Upon principle, it would seem to be clear that no person can be permitted to exercise the rights and powers of a common carrier, especially when they embrace the franchises granted to a railroad corporation, except subject to the duties and liabilities of common carriers. Whether the receiver is regarded as the officer of the law, or the representative of the proprietors of the corporation, or its creditors, or as combining all these characters, he is intrusted with the powers of the corporation, and must, therefore, necessarily be burdened with its duties and subject to its liabilities. Both upon principle and authority I think it must be held that a receiver operating a railroad under the order of a court of equity stands, in respect to duty and liability, just where the corporation would were it operating the road, and the question whether or not the receiver is liable for negligence must be tested by the same rules that would be applied if the corporation was the actual party defendant before the court."

This statement voices the conclusions of a number of well-considered cases.

Receivers in full control of railroad property under direction of the court were held to the same responsibility as the common carrier would have been for a personal injury resulting from a known insecurity of the rails, although, being officers of the court, it was held that they were not jiable in punitive damages. Pope's Case, 30 Fed. 169.

To the same effect is Winbourn's Case, 30 Fed. 167.

In Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 350, where the evidence showed that defendants as receivers were managing a long line of railroad, the court says that, if they were in fact common carriers over that line of railroad, it was no defense to an action at law for a breach of a duty or obligation arising out ol business intrusted to them in that relation, that they were operating the railroad as receivers under appointment of the court of chancery.

In deciding that trustees of mortgage bonds operating a railroad were liable for the negli

gence or misconduct of their employees, the court said, in Sprague v. Smith, 29 Vt. 421, 70 Am. Dec. 424, that they were liable to the same extent that the company would have been, or as lessees, or any others exercising the franchise of the company for a time, would be.

Likewise, in Rouse v. Redinger, 1 Kan. App. 355, 41 Pac. 433, it was held that the same liability attaches to a receiver for injuring stock in the operation of a railroad as would attach to the company itself, or its assignee or lessee. It is said in Cooley v. Brainerd, 38 Vt. 394, an action to recover for stock killed by the operation of a railroad, brought against 'defendants as private individuals, without stating in what capacity they were using the road, and therefore not coming within the words of a statute under which that action was brought, that if it were alleged that the defendants were trustees, mortgagees, or lessees, in the exclusive possession, use, and occupancy of the road, holding it from and under a railroad corporation, it would probably be sufficient, as in such case they would stand in the place of the corporation, exercising its right, and consequently burdened with its duties.

A lessor and lessec railroad and the receivers of the lessor railroad were sued for an injury caused by the receivers' servants, in Chamberlain v. New York, L. E. & W. R. Co. 71 Fed. 636, and the court held that the receivers, who had the sole and exclusive control and management of the property of both roads, were alone to be sued for the injury, on the ground that where a court seizes a railroad, and puts it in the hands of a receiver to be operated under the direction of the court, the receiver alone is liable for wrongs and injuries committed by himself or his servants.

A receiver operating a railroad was held liable for damages to engines rented by him resulting from an omission to make proper repairs, in Turner v. Indianapolis, B. & W. R. Co. 8 Biss. 527, Fed. Cas. No. 14,260.

Upon a question of practice as to the right of a receiver to appeal, the court says, arguendo, in Melendy v. Barbour, 78 Va. 544: "No good reason can be perceived why the same rights of action may not be maintained against receivers, as a general rule, that might have been maintained against the corporation or person to whose estate and rights the receiver succeeds. In conformity with this general doctrine, it is held that where the affairs of a railway company have passed into the hands of a receiver, who is operating the road under the direction of the court, having exclusive charge of its management and of the employment of operatives and employees, the entire control of the company having passed to the receiver as fully as it was before exercised by the officers of the road, the receiver may be held answerable in his official capacity for injuries sustained, in the same manner that the corporation would have been liable."

Other cases in which this rule of liability is approved in the course of the opinions are Smith v. Eastern R. Co. 124 Mass. 154; Lyman v. Central Vermont R. Co. 59 Vt. 167, 10 Atl. 346; Wall v. Platt, 169 Mass. 398, 48 N. E. 270; Newell v. Smith, 49 Vt. 255; Murphy v. Holbrook, 20 Ohio St. 137, 5 Am. Rep. 633; Little v. Dusenberry, 46 N. J. L. 614, 50 Am. Rep. 445; Ohio & M. R. Co. v. Anderson, 10 Ill. App. 313.

A receiver was held liable to an action for damages for negligently setting fire to grass

and timber while operating a railroad, notwithstanding a statute which provided for the order in which certain specified claims should be paid out of the money coming into the receiver's hands, and which did not mention such a claim as the one sued upon. Peoples v. Yoakum, 7 Tex. Civ. App. 85, 25 S. W. 1001.

Receivers running a railroad as common carriers under appointment by a court of chancery in another state, and there held liable to actions at law for breaches of duty or obligation arising out of business intrusted to them in that relation, were held liable as common carriers in Massachusetts, in Paige v. Smith, 99 Mass. 395, on the ground that an exception from the ordinary common-law liabilities of common carriers more extensive than were allowed to receivers in the state of their appointment, and in which the accident occurred, would not be accorded them by the court of Massachusetts.

In a number of instances statutes applying in terms to railroad companies have been construed so as to include within their scope receivers engaged in operating railroads.

It was contended in Farrell v. Union Trust Co. 77 Mo. 475, that the defendant, a trustee, running and operating a railroad, was not liable for stock killed thereby, under a statute in terms applying to railroad corporations. But the court refused to sustain the contention, saying of the trustee : "He stands in the place of the company, represents the company, and, while not directly, the railroad company is ultimately, responsible, because damages recovered against the receiver in such a case he may charge to the company in his settlement. . If the defendant in this case is not responsible, then it were an easy matter for a railroad corporation to avoid all the duties imposed upon it by the statute by simply transferring the road to a trustee to run and operate it for the benefit of the company."

A receiver operating a railroad under the court's direction, or, rather, the property in his hands, was held liable to an employee injured through the negligence of coemployees, under a statute providing that "every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employees of the corporation." Sloan v. Central Iowa R. Co. 62 Iowa, 728, 16 N. W. 331.

So, in Mikkelson v. Truesdale, 63 Minn. 137, 65 N. W. 260, in holding that a receiver operating a railroad is liable to an employee who is injured by the negligence of a coemployee under a "fellow servant act" which in terms applied only to railroad corporations, the court says that a receiver cannot, while exercising the franchises and power of a corporation, claim immunity from the police regulations and liabilities which have been imposed upon the corporation by the state.

It was held in Hunt v. Conner, 26 Ind. App. 46, 59 N. E. 52, that an action for a death caused by the negligence of fellow servants, and thus within the employers' liability act, might be prosecuted against the receiver of a railroad who was carrying on the business at the time the accident occurred, although the statute did not in terms so provide.

A right of action against a trustee of a railroad running the same for the benefit of creditors, by the administrator of a passenger fatally injured by negligence in its operation, was held

In Powell v. Sherwood, 162 Mo. 605, 63 S. W. 485, it was held that an act entitled "An Act to Define the Liabilities of Railroad Corporations in Relation to Damages Sustained by Their Employees, and to Define Who Are Fellow Servants," etc., applied to a receiver in charge of a railroad.

1. Henderson v. Walker.

By the decision in Henderson v. Walker, 55 Ga. 481, and its adherents, Georgia became an exception to the rule shown by the cases last above referred to until 1895, when the statute was amended so as to include receivers.

Henderson v. Walker was an action by an employee of a receiver operating a railroad, to recover damages for injuries sustained through the negligence of a coemployee. By statute an exception is made in Georgia, in favor of railroad companies, to the common-law rule that a principal is not liable to an agent for injuries arising from the negligence or misconduct of other agents about the same business. It was contended that receivers were within the exception made by this statute, but the court refused to extend the statute by construction, declaring "that the employee of receivers is not to be treated as the employee of a railroad company, so as to entitle him to reap the fruits of a statute which offers nothing to any but the latter class of employees."

Thurman v. Cherokee R. Co. 56 Ga. 376, was held to come within the ruling, and to be controlled by Henderson v. Walker.

Central Trust Co. v. East Tennessee, V. & G. R. Co. 69 Fed. 353, held that the Federal court was controlled by Henderson v. Walker upon the point whether, under the statute and decisions of the supreme court of Georgia, a receiver is liable to an employee injured by the negligence of a coemployee.

In the argument of Youngblood v. Comer, 97 Ga. 152, 23 S. E. 509, 25 S. E. 838, leave was asked and granted to review the decisions in Henderson v. Walker and Thurman v. Cherokee R. Co., which controlled the case at bar, but a majority of the court declined to overrule them on the ground that they had been decided twenty years before, and that the legislature had not seen fit to change the rule there laid down. One judge, however, was of the opinion that the two decisions in question should be overruled.

It was contended in Brown v. Comer, 97 Ga. 801, 25 S. E. 176, an action for damages against a receiver by an employee injured by the negligence of a coemployee, that Henderson v. Walker did not apply, because the railroad company had been put into the hands of the receiver upon its own petition. But the court was not convinced that the earlier decision would have been different had the receivership in that case been compulsory.

Following Henderson v. Walker, it was held that no action would lie, in Robinson v. Huidekoper, 98 Ga. 306, 25 S. E. 440, an action for personal injuries sustained by an employee of receivers operating a railroad, through the giving away of a portion of the engine on account of weakened and loosened bolts.

And in Barry v. McGhee, 100 Ga. 759, 28 S. E.

2. Turner v. Cross.

Texas proved itself another exception to the rule by its strict construction of its state statute shown in Turner v. Cross, 83 Tex. 218, 18 S. W. 578, reported in 15 L. R. A. 262, holding that a receiver of a railroad is not a "proprietor, owner, charterer, or hirer" of the road, within the meaning of a statute making persons of the class described liable for the death of any person by their own negligence or that of their servants or agents. This decision has controlled numerous subsequent Texas actions for personal injuries resulting in death, against receivers operating railroads, when the cause of action arose prior to April 11, 1892, for on that date the statute was amended so as to confer the right of action expressly against receivers, and thus remedy the situation produced by the decision in Turner v. Cross and its adherents.

Yoakum v. Selph, 83 Tex. 607, 19 S. W. 145, an action for personal injuries resulting in death caused by the negligence of operatives of a railroad, against receivers in possession thereof, was the first case, subsequent to Turner v. Cross, held to be controlled by it.

Then, in Texas & P. R. Co. v. Collins, 84 Tex. 121, 19 S. W. 365, a similar action brought originally against a receiver, but, upon his discharge, sought to be continued against the railway company, it was held that no recovery could be had unless the receiver was primarily liable, and that (adhering to Turner v. Cross) the common-law rule that a recovery could not be had for injuries resulting in death had not been changed by statute in so far as receivers of railway companies were concerned.

Houston & T. C. R. Co. v. Roberts (Tex.) 19 S. W. 512, and Bonner v. Thomas (Tex. Civ. App.) 20 S. W. 722, in brief opinions, were held bound by the same rule, in the latter case, however, the court noted that the law had been amended so as to confer the right of action against receivers.

The court says, obiter, in Texas & P. R. Co. v. Bledsoe, 2 Tex. Civ. App. 88, 20 S. W. 1135, an action against a railroad company for damages for personal injuries, resulting in death, received while the road was in the hands of receivers, that "under such circumstances a recovery, it is well settled, cannot be adjudged against the receivers;" citing Turner v. Cross.

Then, in Texas & P. R. Co. v. Thedens (Tex. Civ. App.) 21 S. W. 132; Campbell v. Davis (Tex. Civ. App.) 22 S. W. 244; Brown v. Record (Tex. Civ. App.) 23 S. W. 704; Dillingham v. Scales (Tex. Civ. App.) 24 S. W. 975; and Dillingham v. Blake (Tex. Civ. App.) 32 S. W. 77, cases decided subsequent to the statutory amendment, but in which the causes of action arose before,-the rule of Turner v. Cross is held to control.