Missouri, Kansas & Texas Railway Co. v. Freeman

W.A. Freeman died from smallpox alleged to have been communicated to him by the negligence of the railway company, its servants and agents, and this action was brought by the defendants in error to recover damages for such death, and was prosecuted to the judgment brought in review by this writ of error. It appears from the facts found by the Court of Civil Appeals that this railway company had agreed with its employes, in consideration of a monthly sum contributed out of their wages, to furnish them, when *Page 397 sick or injured, surgical and medical attention. In conjunction, it and a connecting carrier, the Missouri, Kansas Texas Railway Company, a corporation of another State, maintained at Sedalia, Mo., an hospital, in which care was taken of its sick and injured employes. One of its servants, Alonzo Dickson, was injured, and went to this hospital for treatment. There he was brought in contact with persons having smallpox, but left before there was any development of the disease on him, returned to Hunt County, Texas, and resumed work for his employer, the plaintiff in error. The smallpox soon made its appearance upon him, and those of its employes intrusted by plaintiff in error with such matters arranged for the detention and treatment of him and other servants similarly affected in a pest camp under the control of a local surgeon in the employment of the company. Upon this surgeon assuming charge, the officials of Greenville having the care of the public health, and who were instituting quarantine measures for the isolation and detention of persons infected with smallpox, relinquished the custody of Dickson to such surgeon and his subordinates. The surgeon employed an incompetent and irresponsible person and placed him in charge of Dickson in the camp. This person left the camp without having changed or disinfected his clothing, went upon the streets of Greenville, met Freeman and communicated to him the disease from which he died. The courts below have found these facts and the further one that, in selecting so unreliable a person to take care of the sick servants, the surgeon, in charge by authority of the railway company, was guilty of negligence in the performance of the duty assumed, which was the proximate cause of Freeman's death. This, in brief, is the state of facts upon which the judgment rests. A further statement will be found in the opinion of the Court of Civil Appeals, and in the report of the case of Missouri K. T. Ry. Co. v. Wood, 95 Tex. 223. The principal question involved is whether or not a right of action for a death thus caused is given by the statute. Right of action for death is given in the following provisions of article 3017, Revised Statutes: "1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer, hirer of any railroad, steamboat, stage-coach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents. "2. When the death of any person is caused by the wrongful act, negligence, unskillfulness or default of another." Article 3018 further provides: "The wrongful act, negligence, carelessness, unskillfulness or default mentioned in the preceding article must be of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury." This statute was first adopted in 1860, was amended from time to time, revised in 1879 and again in 1895. The amendments do not affect the question before us. In the revision a different arrangement of the *Page 398 provisions was made and some words were added. As thus revised the statute has received a construction which materially enters into the present discussion. Whether or not the same construction would have been made of the original statute is a question beside the present purpose. The construction spoken of is that expressed in the case of Hendrick v. Walton, 69 Tex. 192, in which it was held that persons generally were not made liable by the second subdivision of the revision for deaths caused by the "wrongful act, negligence, unskillfulness or default" of their servants and agents; from which it follows that the only responsibility for deaths resulting from the misconduct of servants or agents is that declared in the first subdivision against the classes of persons there named. The difference between this statute and Lord Campbell's Act and those of American States adopting its provisions is therefore obvious. Those statutes fix the liability upon all persons without discrimination when the death is caused by "wrongful act, neglect or default," such as would have given a cause of action to the person injured if he had lived, and make all masters and employers responsible for such misconduct of their servants or agents; while ours make none accountable for the misconduct of servants and agents except certain ones classified according to the business in which they are engaged. This is not extended by either article 3018 or the original provision of which it is the revision. It gives no cause of action against anyone not included in article 3017, but gives one against such as are included, when the injury which caused the death would have given one to the person injured had he lived. We think it clear therefore that no liability is shown in this case under the second subdivision of article 3017. Corporations may be responsible for deaths under this provision, but only where they result from "what may be deemed their own wrongful acts or omissions as distinguished from the acts or omissions of their servants or agents." Fleming v. Texas Loan Agency, 87 Tex. 241. The negligence which, according to the findings, caused the death of Freeman was that of the local surgeon, the agent or servant of the company, in intrusting the pest camp to the care of an unreliable nurse who, by reason of his incompetency, communicated the disease. To make such negligence that of the employer requires the aid of the rule respondeat superior, and this, as we have seen, is eliminated by the statute from this class of actions except to the extent it is made applicable to those falling within the first provision. Without that rule the negligence is to be viewed as merely that of the servant. But it is suggested that the duty of selecting competent nurses was that of the company, and the failure to perform it was its negligence notwithstanding its attempt to assign it to its agent or servant, and that, hence, the death was due to its "negligence, unskillfulness or default." There is a confusion here, resulting from an attempt to bring into consideration a principle of the law of master and servant which does not apply, the person whose death was caused not having been a servant. By the law regulating the relation of master and servant, unless modified by statute, *Page 399 the master is not responsible to the servant for an injury inflicted by a fellow servant; but the master is responsible for his own negligence resulting in injury to the servant. It is a duty of the master to the servant to use care to secure competent and reliable fellow servants, and an omission to perform that duty is, as to the servant to whom it is due, the master's omission or neglect, notwithstanding any attempt he may have made to have it performed by another; and an injury resulting to a servant from such omission is attributable to the master's negligence. It may be that the death of a servant thus caused would be one "caused by the wrongful act, negligence, unskillfulness or default" of the master. If so, it would be because the death resulted from a nonperformance by the master of the duty in favor of the servant growing out of their relation. This, however, is a question not now before us. These distinctions have no place in determining the liability of a master for injuries done by the negligence of his servant to a third person not a servant. For such injuries, other than death, the master is by the common law made responsible upon the principle, respondeat superior, regardless of any question as to his care in selecting the servant, or as to the competency or fitness of the servant (3 Thompson Com. on Law of Neg., sec. 3167); but the Legislature in giving the action for death has excluded that principle except so far as it is introduced in the first provision of article 3017. To hold that a death from such neglect of a servant as that in question, in the management of his master's business, was caused by the negligence of the master, in the sense of the statute, would at once make the master responsible for all deaths caused by negligence of servants or agents. Of course we are speaking only of mere servants and agents and not of those who act for a corporation in its corporate capacity. International G.N. Ry. Co. v. McDonald,75 Tex. 45; Houston T.C. Ry. Co. v. Cowser,57 Tex. 306. Plaintiff's action must be sustained, if at all, under the provisions of the first subdivision of article 3017. Its terms, taken literally, create a right of action against any persons who are the proprietors, owners, etc., of any of the species of property named, for deaths caused by the unfitness, negligence or carelessness of their servants or agents, whether or not such service or agency and the negligence therein and the resulting death had any connection with or relation to such ownership. If this application were given to it, a person who owned a steamboat or stage-coach, and was also a farmer or merchant, would be liable for a death caused by the negligence, etc., of his servant or agent in the other business; or a railroad company which has, as many in this State have, acquired lands by donation from the State or from individuals, which are not used in or in any way connected with the business of carrying goods or passengers, would be responsible for deaths caused by surveyors and other agents and servants employed about such lands, acting in the scope of their employment. If this were so there would be no reason for the kind of classification made by the statutes under which liability for conduct of servants and agents depends upon the *Page 400 ownership of particular kinds of property for a particular purpose. Those who are made accountable are designated as the owners, etc., of properties which are the means used for the conveyance of goods or passengers and the class of persons meant are evidently carriers. It is to be observed that not merely railroad companies or persons operating railroads, as in the statutes of some States, but all persons natural and artificial, who are the owners, etc., of any vehicles of conveyance of the specified kind, are included in the statute. The liability is given against the "owner," as such, and is based upon the ownership, because the properties are employed in the business of conveying goods or passengers. This inclusion of all who bear this relation to such properties, and exclusion of all others, force the conclusion that the nature of the business common to all constitutes the basis and reason for the classification. From this it follows that the servants and agents for whose misconduct liability is created are those engaged in prosecuting, in some way, that business; and as, in law, one person acts as the servant or agent of another only when he acts in the scope of his employment, it follows, also, that the death contemplated by the statute must be caused by the servant while prosecuting the same business. Reasons may be seen why the Legislature may have thought it just and expedient to thus select carriers, as a class, and impose upon them alone, in the conduct of their business, this responsibility; but none could be found for making a farmer or merchant accountable for the acts and omissions of his farm laborers or clerks merely because he happens to be the owner of a steamboat or stage-coach when no such responsibility is laid upon other farmers and merchants. The same rule must determine the liability of all of the class mentioned in the statute, and if that of the owner of one of the other vehicles is to be restricted to those deaths which occur in his business of conveying goods or passengers, it follows that the same limitation exists upon the liability of owners of railroads, the difference in its scope being only in degree, arising from a difference in the extent of its business. A statute of Kentucky gave a right of action when "the life of any person, not in the employment of a railroad company, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or negligence or carelessness of their servants or agents." In the case of Claxton's Admr. v. Lexington, etc., Ry. Co. (13 Bush., 636), it appeared that a corporation owning a railroad also owned and operated a mine connected by spurs with the railroad, and that a person had been killed by a car and by servants employed exclusively in the mining business. The case was held not to come within the statute, the court saying: "The Legislature has seen proper to invest this company with a twofold character. For the purpose of constructing and operating a line of railway, it is a railroad company; but for the purpose of mining, and of delivering the products of its mines on the line of the railway for shipment, it is a mining company; *Page 401 and the tramways and cars in use at the time the alleged negligent killing was done, are the usual and necessary attachments to mining operations, and were in no sense incidents to the railroad owned by the appellee. The agents and servants in charge of the tramway were engaged in mining operations, and not in managing, controlling or operating the company's railway. It follows, therefore, that while the appellant is able to bring his case within the letter of the section in question, it is evidently a case not contemplated by its provisions. There is no more reason why the appellee should be compelled to answer, as the proprietor of a railroad, for an injury caused by the negligent management of a tramway attached to its mines, than that it should be required to answer for the death of a party resulting from the negligence of its agents or servants while engaged in prospecting for coal, iron, or other minerals on some of its lands wholly disconnected from and not even bordering on its line of railway." See, also, Aiken v. Western R.R. Co.,20 N.Y. 376. It will be seen that the statute here construed declared the liability against the proprietors of railroads in terms as broad as those used in our statutes with reference to the classes made liable for deaths. In the cases of Daley v. Boston, etc., R.R. Co.,147 Mass. 113, and Commonwealth v. Boston, etc., R.R. Co., 126 Mass. 68, the statute of Massachusetts, the language of which is similar to but somewhat more definite than ours, was considered, and the actions were sustained, because, in the first named case, the death occurred in "railroad operations," and in the second, upon a track used by the railroad company which was "reasonably incident to the business in which the corporation was lawfully engaged." In the Daley case the court uses this language: "The words `operating a railroad' describe the kind of corporation intended to be subjected to the liability there imposed, and not the work immediately in the process of performance by it. Even if they could be held to limit the liability to occasions where the railroads are being actually operated, they would not limit it to incidents occasioned by locomotives, moving trains, etc., or only upon its tracks. The handling of freight, the unloading and loading of its cars, or the transfer, as in the case at bar, of freight from a vessel to its cars, are railroad operations." The decisions in these cases hold the companies responsible for deaths which were caused in connection with the business of railroading and are not authority for a more extensive liability. The intimation that such a company is made liable, merely because it is such, for deaths that may occur entirely outside of and disconnected with its business as a railroad company, if that is the meaning of the opinion, was an obiter dictum, and, in our opinion, is not supported by the true construction of the statute. On the other hand, we regard it as equally clear that the court was right in saying that statutes like that of Massachusetts and Texas can not be so construed as to limit the liability for deaths to such as are occasioned by locomotives, moving trains, etc., *Page 402 or only upon the tracks of the railroad. Lipscomb v. Houston T.C.R.R. Co., 95 Tex. 5. We are thus brought to the question whether or not the business in which the surgeon was engaged, when he was guilty of the negligence assumed to have been the cause of Freeman's death, was such as the statute contemplates. There was a remote connection between the keeping of a pest camp and the railroad business proper, consisting wholly in the fact that the railroad company was engaged in taking care of one of its servants. Servants are, of course, necessary to the prosecution of the railroad business; but contracts and arrangements such as that made by this company with its employes are not essential and not peculiar to that business, but collateral to it. It was not different in its nature from that which would exist between the business of a natural person, owning and operating vehicles for the conveyance of goods and passengers, and a lodging engaged by him for a sick servant in compliance with a contract to take care of servants when ill. If liability for death is imposed upon the railroad company in this case, it would, by the same rule, exist against the natural person in the case supposed for a death caused by his servant in managing such a lodging. It is doubtless to the interest of the railroad companies and commendable in them to have hospitals and similar places for the care of their servants. In a sense, this may be promotive of their business of operating their roads. So they might find it to their interest to have schools of instruction for the training of employes, or libraries and places of resort for the cultivation of correct habits. For the extension of their trade they might think proper to have advertising bureaus and like establishments. Any of these would have some connection with the railroad business, but would be only collateral aids to it. It would be difficult to suppose a business in which a railroad company might engage which would not have some sort of connection with its ownership of its railroad properties; but the statute, as we have seen, makes it responsible not for all deaths which its servants may cause, but for such only as are so caused in its railroad business proper. That business is so comprehensive and embraces so many incidents, essential and nonessential, that an attempt to state a more definite general rule which would include all cases of liability, and exclude all others, would be hazardous. The doctrine of ultra vires would not furnish a solution for all cases. In the case of corporations, it would be easy to suppose instances in which, while acting beyond their lawful powers, they would yet be liable for deaths caused by their servants while so acting; and others in which they would not be liable although the deaths were caused by the default of servants while lawfully prosecuting some collateral undertaking. In the case of individuals the doctrine of ultra vires would, of course, have no application. Railroad companies as legal personages and owners of property, endowed with the power of contracting, may make many contracts and do many things which natural persons may do, but it does not follow that these are properly a railroad *Page 403 carrying business. Authorities which hold that such companies may lawfully do this or that thing have, therefore, little tendency to show that the conduct of their servants acting for them therein comes within the purview of this statute. Without going further into detail, we think it evident that if such a relation as that which existed between this detention camp and the railroad were held to make the keeping of the camp a part of the proper business of the company as owner of the railroad conducting a carrying business, it would be found impracticable to fix a limit at which we could stop short of the broad proposition that such companies and individuals, merely because they own and operate railroads, or some of the vehicles mentioned in the statute, are responsible for all deaths caused by their employes in any business. Such a construction of the statute would, as we have seen, take away all foundation for the discrimination which the Legislature has made between those engaged in the business specified in the statute and other persons and corporations, making the former responsible for deaths occurring in the prosecution of collateral businesses when others engaged in like businesses are not held to a like accountability. The construction which limits the liability to deaths occurring in connection with the railroad business proper is by no means a narrow or strict one. On the contrary a much narrower one than we as yet feel inclined to recognize might be put upon the language of the statute. When the purpose of the Legislature to give such actions only for deaths caused by employes of those engaged in a certain business is so plain the courts have no right to include other cases; and the most liberal construction which, in our opinion, the statute justifies is that which we have indicated. Any indefiniteness in the rule grows out of the indefiniteness of the statute. This is no justification for the courts to stretch the statute to cover cases not embraced by it. Turner v. Cross, 83 Tex. 218. When our statute was first adopted the railroad business in this State was in its infancy and many of its subsequent extensive developments were unthought of. Inland transportation was principally carried on by other instrumentalities. There is nothing in the statutes, or the history of our legislation concerning railroads, to indicate that when the Legislature spoke of "the proprietors, owners," etc., of "a railroad," it regarded as a part of the property specified, or as an incident of it or of the business for which it was employed, any such institutions as those here in question; and our statutes have indicated, with some particularity, too, many, at least, of the things which were regarded as coming properly within the scope of the business of such companies. Rev. Stats., arts., 4367, 4478, 4479, 4480, 4483. It is not intimated that the specifications of the statute are exclusive of everything not expressly mentioned, the purpose of this reference being to show that nothing in our legislation outlining the powers, rights and duties of railroad companies shows any legislative contemplation of such undertakings as those under consideration as incidents of their business. In *Page 404 the case of this plaintiff in error versus Wood, in which questions were certified to this court and answered, there was set up a claim for the death of plaintiffs' child, in addition to personal injuries to plaintiffs not resulting in death. Nothing was said in the certificate concerning the claim for death, and the questions certified were determined by this court wholly upon common law principles governing actions growing out of torts, actionable by that law. When the cause again came before this court upon application for writ of error, the question as to the right to recover for the death of the child, not being fundamental in that case as it is here, was not so presented as to require a determination of it, and it was not in fact determined. The result of that case is not therefore regarded as a precedent to sustain this judgment. In the Lipscomb case, before referred to, the death for which the railroad company was sought to be made liable was inflicted by a guard alleged to have been employed in its depot for the protection of goods which it held as a carrier. Its duty as such was to safely keep and deliver to its owners goods so held. The business was therefore of the character which the statute defines. That here in question was not. The plaintiff has no cause of action and the judgment is therefore reversed and the cause dismissed. Reversed and dismissed. DISSENTING OPINION.