Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 49
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1884.] RYAN v. HAYs. 49
Opinion of the court.
under identically the same facts, the same relief is denied under
the unwritten law, which as fully imposes the duty and liability.
Kansas & P. R. R. Co. v. Wood, 24 Kan., 619; 0. & M. R. Co.
v. Fitch, 20 Ind., 498; MlcKinney v. 0. M. R., 22 Ind., 99; 46 Ind.,
277; 51 Ind., 269.
In the present state of the law, we decline to lay down a rule so
broad as is suggested above, and deem it more consistent with proper
judicial action to follow the rules fixed by an almost unbroken line
of decisions, made by courts eminent for their learning, by which
the ordinary rules for the determination, whether the relation of
master and servant exists, have been applied, in cases in which
receivers had been appointed with powers to operate and even to build
railways. Moreover, there are some difficulties, technical to some
extent though they be, which induce us to follow, unless the legislature
shall by statute otherwise provide, the rule which the great
weight of adjudicated cases seems to establish, which is, that neither
a receiver nor his employees are ordinarily the servants of a railway
company operated by such person appointed by a court. There are,
however, cases in which the rule cannot be applied.
Does the resolution of the stockholders, taken in connection with
the other facts shown by the record, show a liability of the company
to the plaintiff?
We do not desire to consider the question whether, when persons
holding claims against railway companies, secured by mortgage,
take the property out of the hands of the owner, who is bound to
the public to operate it, and place it in the hands of a receiver,
through an order of court giving to him full power to operate it as
the owner was bound to do, can be called upon to yield from the
proceeds of the sale of the mortgaged property, if necessary, a sum
sufficient to discharge all current charges while so operated, including
such sums as may be necessary to pay for freight lost or damaged
or injuries done to passengers through the negligence of a receiver
or his employees, This question is not directly involved in this case.
There is high authority to the effect that, for such purposes, the
mortgagors cannot ordinarily be compelled to relinquish any part of
the proceeds of the mortgaged property. Davenport v. The Receivers,
2 Woods, 520; Fosdick v. Schall, 99 U. S., 235; Huidekoper v.
Locomotive Works, 99 U. S., 258.
It has been held that the earnings of a railway company, while
its road was in the hands of and operated exclusively by a receiver,
were chargeable with the value of goods lost in transportation
while the road was so operated. Cowdrev v. G. N. & H. R. R. Co.,
VOL. LXII -4
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/71/: accessed April 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .