7. RAILROADS 194(8)-LIABILITY OF PURCHASER OF ROAD-JOINDER OF DEFENDANTS.

Rev. St. 1909, § 1734, authorizing one having a cause of action against several, and entitled to one satisfaction thereof, to bring suit thereon against all, permits receivers of a railroad and purchaser thereof who has contracted to pay liabilities incurred by the receivers in operation of the road to be sued jointly for establishment and enforcement of a claim for damages in operation by receivers; joint cause of action not being necessary.

8. RAILROADS 194(8) ACTION AGAINST SEVERAL-UNREAL OR PRETENDED DEFEND

11. RAILROADS 207 RECEIVERS
AGAINST AFTER SALE OF RAILRoad.

SUIT

Liability of receivers of a railroad for fail

Liabilities incurred by receivers of a railroad while operating the road, which the purchaser of the road contracts to pay, include liability under Rev. St. 1909, § 3150, for overflows from absence of lateral drains and open-ure to perform their statutory duty in operaings through the roadbed. tion of the road not terminating till their final discharge, they may be sued after sale of the road.

22(1)

5. VENUE
CODEFENDANTS
AMENDMENT OF PLEADING-FOUNDATION OF
SUIT.

The summons having been issued under the second amended petition, which was against a corporation and individuals, so that the petitions preceding are not to be regarded as prior foundations of the suit, the fact that the first amended petition was against the corporation alone can have no effect on the question of jurisdiction over the individuals residing in county other than that of the suit.

6. RAILROADS 194(6)-PURCHASE AT RECEIVERS' SALE PAYMENT OF RECEIVERS'

LIABILITIES.

One of the conditions of purchase imposed by decree of sale of railroad being agreement of purchaser that, if liabilities incurred by receivers while operating the road are not paid, the road may be taken from purchaser and sold to pay, held, the purchaser in effect contracts to pay such liabilities.

An instruction directing a verdict in action under Rev. St. 1909, § 3150, against a railroad for flooding from insufficient drains and opening, ignoring the question of it being from an unprecedented rain, is erroneous.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

both violations, and to submit his case to the jury upon whichever one the evidence disclos

It cannot be said that, taking the instruc-ed was the cause of the damage. Hence the tions as a whole, there was no error where one instruction in and of itself authorized a verdict against a railroad for overflow from insufficient opening, without regard to whether the flood was unprecedented, though another instruction submitted that question.

fact that plaintiff included in his petition allegations of a failure to maintain lateral ditches as a cause of the overflow ought not to be regarded as basing the petition wholly upon that. The petition does allege a failure to construct and maintain suitable openings

Appeal from Circuit Court, Ray County; across and through the railroad as the cause Frank P. Divilbiss, Judge.

of the overflow. The statute gives a right of action if either caused it. The petition alleged both did it, and therefore the fact that the case was submitted to the jury up

Action by Arch M. Riffe and others against the Wabash Railway Company and others. Judgment for plaintiffs, and defendants ap-on the failure to construct and maintain suitpeal. Reversed and remanded.

J. L. Minnis, of St. Louis, S. J. & G. C. Jones, of Carrollton, and Lavelock & Kirkpatrick, of Richmond, for appellants.

Geo. W. Crowley, A. M. Clark, and M. M. Milligan, all of Richmond, for respondents.

able openings did not create a difference be tween the pleaded cause of action and the one submitted. The petition hereinabove referred to is the second amended petition, but, as it is the only one under which summons was issued and service had, we may regard it as the original foundation of the suit. Even if it could not be so regarded, and even though the first petition alleged only a failure to maintain lateral ditches, nevertheless plaintiff had the right to include, in his second amended petition, the failure to construct and maintain openings through the roadbed. Only one cause of action existed, namely, the right to recover loss from overflow caused by defendant's failure to obey the statute, though there are two ways in which such failure may arise. However, the first petition charged a failure in both respects; so that, even if we could otherwise look to the first petition, as defendant suggests, in order to confirm defendant's view that plaintiff's pleading did not in fact rest upon anything more than the failure to maintain lateral ditches, nevertheless no such confirmation is to be found.

TRIMBLE, J. In June, 1915, plaintiffs' crop north of and adjacent to the right of way of the railroad hereinafter mentioned was overflowed. This suit was instituted to recover $1,200 damages. The jury returned a verdict for $398, and defendants appealed. [1-3] Plaintiff's land is about a quarter of a mile west of Rollins creek, which flows south to the railroad, which crosses said stream, practically at right angles, over what is known as bridge No. 575, and from thence said creek flows in a southerly direction, emptying into the Missouri river. The land north of the railroad and west of the creek, including plaintiff's, is higher than the land south of the railroad. Consequently all water, surface included, flowing against the railroad at the place in question would be obstructed by the roadbed unless suitable and sufficient openings across and through the [4, 5] Objection is made to the jurisdiction right of way were constructed and maintain- of the court over the defendants. To undered, as required by section 3150, R. S. Mo. stand this properly it should be stated that, 1909. The only opening available for the prop- when the cause of action accrued in June, er care of water along the railroad adjacent 1915, the railroad, then belonging to the Wato the land in question was the channel of bash Railroad Company, was in the hands the above-named creek under said bridge No. of the defendant receivers, under an order 575. Therefore, if said channel opening were and appointment of the federal court. In reduced so as to be insufficient for said pur-October, 1915, and before the present suit pose in ordinary times, then there would be a failure to have and maintain the statutory openings. And if plaintiff's land was, in an ordinary time, overflowed either because of the failure of the railroad to construct and maintain lateral ditches to connect with said stream, or because the railroad has reduced the stream opening under the bridge so that it was no longer sufficient, then, under section 3150, the plaintiff had a cause of action for the loss sustained. The fact that a cause of action would arise from either one of these failures to obey the statute is mentioned here to show that plaintiff, in bringing his suit under the statute, had a right to allege

was instituted, there was a sale under the receivership of the railroad to the defendant Wabash Railway Company. Under the terms of the decree of sale the liabilities incurred by the receivers while operating the road were taken care of; one of the conditions of purchase being an agreement on the part of the purchaser that, if such liabilities were not paid, the road itself could be taken from the purchasers and sold to pay the liabilities incurred as aforesaid. Plaintiff's claim comes within that category. The first petition was filed April 8, 1916, and was against the Wabash Railway Company alone. The second amended petition was filed June 9,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

80

(Mo.

the bid is not the full measure of the purchas"The decree on its face shows that payment of

1917, in which the receivers were joined as pendent obligation separate from the propparties to the suit, the receivership and the erty purchased and distinct from the privisale to the Wabash Railway Company, to- lege of buying same, still such privilege of gether with its obligation to pay the liabili- purchase and the subsequent continued ownties hereinabove referred to, all being proper-ership of the property were coupled with, and ly set forth along with a statement of the made dependent upon, the payment of such cause of action as having arisen in June, 1915, receivers' liabilities. As said in Jones v. Chiagainst the receivers by reason of their fail-cago, etc., R. Co., 97 Neb. 306, 310, 149 N. W, ure to obey the statute in the respects here- 813, 814: inabove mentioned. As stated before, it was under the second amended petition the summons was issued. Hence the petitions pre-er's liability." ceding it are not to be regarded as prior foundations of the suit, and for this reason the fact that the first petition was against the Wabash Railway Company alone can have no effect upon the question of jurisdiction about to be considered. The suit was brought in Ray county, through which the railroad runs, and summons was issued to said county for the defendant Wabash Railway Company and to St. Louis for the receivers of the Wabash Railroad Company. Service was obtained in these respective places. The situation, then, is this: At the time suit was brought, the railroad had been sold to, and was in the hands of, the Railway Company. It did not commit the wrong, but was only the purchas-S. 1909, permits plaintiff to sue the parties er at a sale wherein one of the conditions of the purchase was that, in addition to the payment of the successful bid, the liabilities incurred by the receivers while in charge of the road should be paid. Now, defendants'

claim is that jurisdiction in Ray county could not be obtained over the receivers in St. Louis by joining with them the purchaser railway company and getting service on it in Ray county. The receivers, who were the wrongdoers, were not jointly liable with the purchaser railway company; and the theory is that the latter is not a real defendant in the case; furthermore, it seems to be urged that the railway company did not contract to pay those liabilities of the receivers which at the time of purchase had not been reduced to judgment, or made liens, but, as to them, merely bought the property subject

thereto.

[6, 7] As to this last-mentioned feature of defendant's contention, we entertain the view that under the foreclosure decree and the special master's deed the purchasing railway company did contract to pay the liabilities incurred by the receivers. Manifestly, under the terms of the decree, no purchase of the road would have been allowed, and none was authorized, without an agreement on the part of the purchaser that, in addition to the amount bid, the property purchased should stand good for all of such liabilities, and that, too, with no proviso in the decree that the amount expended in the payment of such liabilities should not exceed the value of the road. While the purchase under the decree may not have imposed upon the corporate entity of the purchaser an affirmative, inde

In other words, plaintiff had a cause of action against the receivers and also one against the purchasing railway company for the same loss; the cause of action against the latter being dependent upon the validity of the claim against the former. While these causes of action are not joint, that is, the wrong done to plaintiff was not jointly created by the receivers and the purchaser, yet plaintiff had the right, by establishing the validity of his claim against the receivers, to enforce payment thereof against the purchasstances it would seem that section 1734, R. er railway company.

Under these circum

jointly, even though he has not, as stated above, a joint cause of action against them. Cooney v. Pryor, 203 S. W. 629, and cases

therein cited.

[8-12] As we view the case, the purchaser

railway company is not an unreal or mere the controversy, but that it has a real and pretended defendant having no interest in substantial interest, in fact the most subbe the one who will pay it. It is not like stantial, since, if the claim, is valid, it will those cases where a party having no interest in the case is made a defendant in order to obtain jurisdiction in that venue over other parties living elsewhere. Nor is it like those judgment against the defendant upon whose cases wherein the plaintiff fails to obtain a primary liability the liability of the others depends, as in mechanic's lien suits against the contractor and the owner of the propin jurisdiction is obtained over the defendant erty. Nor is the case at bar like those whereliving outside the venue by joining him with a resident defendant, and then, as soon as this is accomplished, dismissing as to the latter and proceeding to judgment against the former.

fraudulent purpose in the joining of the two
There is no element of trickery or
classes of defendants in this case.
the resident defendant, the railway company,
Nor was
released in any way. Although the verdict
of the jury mentions only the receivers, still
the liability of the railway company flows as
a matter of law, not of fact, from the es-
tablishment of the claim against the receiv-
ers.

to include the company in its verdict.
Hence it was not essential for the jury
although the judgment authorizes execution
against the receivers only, yet the railway
And

[14, 15] While plaintiffs' instruction No. 1 could not be understood as requiring open

company is not released. On the contrary, | might have also been liable for negligence the judgment shows on its face that the rail- under section 3149, R. S. 1909. way company is not released, but that, if it does not pay the judgment, the same will be enforced in the manner provided in the fed-ings sufficient to carry off all water, no materal court's decree of foreclosure. The plaintiff did not, after securing local jurisdiction through making the resident railway company a party defendant, release the latter in any way. It remained in court and fought the establishment of the claim to the very last, and is here fighting it. As said before, it has a real and substantial interest in the matter litigated, and hence the trial court's jurisdiction should not be denied, as it is in cases where the jurisdiction was obtained only through the method of employing a mere straw defendant. The railway company was rightfully made a defendant under section 1732, and service was properly obtained under section 1760. The cause of action, which is the foundational basis of the liability of all the defendants, and without which no liability against any of them could be predicated, "accrued" in Ray county. Hence the suit could be brought there. Section 1754, R. S. 1909; State ex rel. v. Jones, 270 Mo. 230, 192 S. W. 980. The fact that the re

ceivers had sold the railroad before the suit was instituted makes no difference. They were liable for failure to perform their statutory duty, and their liability as such receivers does not terminate until their final discharge. 33 Cyc. 721, 722; 34 Cyc. 411. And they were suable in a state court. 34 Cyc. 424.

[13] The evidence amply tended to show that the receivers for several years, and as late as 1915, reduced the opening under the bridge aforesaid by putting rock in the bottom of the stream at that point and "concreting" it; that this greatly lessened the ordinary carrying capacity of the stream at said point, which theretofore had been sufficient. The receivers created no other openings in lieu of the one thus reduced. Hence, if the opening, after it was reduced, was insufficient to carry off the water in ordinary times and freshets, then there was a failure to obey the statute in reference to the maintenance of sufficient openings, and hence instruction No. 1 for plaintiff did not submit the case upon an issue not pleaded, nor did it introduce matters foreign to the issue. There was ample evidence tending to show that the filling up of the channel caused the oyerflow, and that such opening as was maintained was not sufficient to drain the water in ordinary times. The filling in and concreting of the creek under the bridge so as to impede the waters and cause the overflow and the failure to provide other openings in lieu thereof would render the receivers liable under section 3150 even though they

ter how great or unprecedented the flood, but included the question of whether the overflow arose from extraordinary, unusual, and unprecedented rainfall, nevertheless instruction No. 2 also covered the case and directed a verdict without requiring the jury to find that the overflow was not from unprecedented rainfall. This was error. Cooney v. Pryor, 203 S. W. 630, 631. We cannot say that the instructions when taken as a whole cured the error, for the jury could well have followed No. 2 and found a verdict, and we have no way of knowing that they did not. The instruction was not merely indefinite or uncertain in a matter which the other instructions rendered definite and certain, but, within and of itself alone, authorized a verdict, and in that respect was confusing, and also conflicted with defendant's instructions. Hence it cannot be said that, taking all the instructions and reading them as a whole, no error existed by reason of the defect in said instruction No. 2.

and the cause is remanded for a new trial. For this reason, the judgment is reversed,

All concur.

ELLISON, P. J. Plaintiff's action was instituted to recover damages of defendants for the overflow of his lands and destruction of his crops. He recovered judgment in the trial court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 207 S.W.-6

The judgment is reversed, and the cause remanded. All concur.

Defendant is a corporation operating a |gations; yet the railway company was to railroad through Ray county, and plaintiff | pay them or lose the road. owns land adjoining parts of its right of way. When plaintiff's action accrued, the railroad corporation was in the hands of a receiver appointed by the federal court. There was a sale of the road under this receivership to the defendant railway company, under the terms of which sale the defendant purchaser took and accepted the property upon the express condition that it should be charged with the payment of all unpaid current liabilities, indebtedness, and obligations of the receivers, incurred by them in the operation of the railroad.

There was evidence tending to support plaintiff's claim for damages, which, since the verdict in his favor, we must accept as the facts in that behalf; and we will direct our attention to the second instruction given for him. In cases of this kind there is no liability for an extraordinary and unprecedented rainfall. The instruction does not contain that exception, and yet directs a verdict. It submitted the case without explanation or qualification and would naturally mislead the jury. It falls directly under the decisions of Ellet v. Railroad, 76 Mo. 518, 534, and Cooney v. Pryor, 203 S. W. 630, and cases cited.

The action was brought in Ray county through which the defendant railroad runs. The receivers resided in St. Louis. Service was had on the railroad in Ray county, and a summons was issued to St. Louis and served on the receivers in that city. In this situation, defendant makes the point that, since the injury happened to plaintiff when the road was in charge of the receivers, the railroad defendant, purchasing afterwards at the receivership sale, is not liable, and therefore should not have been made a defendant, thereby permitting a summons to be sent to St. Louis to bring in the receivers.

It is insisted that, in these circumstances, the trial court did not have jurisdiction. This phase of the defense is likewise answered in a second Cooney Case decided with the one cited above; Cooney v. Pryor, 203 S. W. 629.

BAILEY v. WABASH RY. CO. et al. (No. 12824.)

(Kansas City Court of Appeals. Missouri. Dec. 2, 1918.)

INSTRUCTION

IG

1. TRIAL 253(3)
NORING DEFENSE.
A defense in action against railroad for
flooding land from embankment sliding into
there was evidence, instruction covering entire
creek being unprecedented rainfall, of which
case and directing verdict ignoring that question
is erroneous.

2. WATERS AND WATER COURSES 179(6)—
FLOODING LAND EXTRAORDINARY RAIN-
FALL EVIDENCE.

Appeal from Circuit Court, Ray County; Frank P. Divilbiss, Judge.

"Not to be officially published."

Action by James Bailey against the Wabash Railway Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

J. L. Minnis, of St. Louis, S. J. & G. C. Jones, of Carrollton, and Lavelock & Kirkpatrick, of Richmond, for appellants.

George W. Crowley, M. M. Milligan, and Garner, Clark & Garner, all of Richmond, for respondent.

BLAND, J. This is an action to recover damages for the overflow of plaintiff's lands resulting in injury to his land and the destruction of his crops.

But it is now urged that we were in error in the latter case in stating that the defendant railroad company assumed the obligations incurred by the receivers. This objection is disposed of against the defendant by the opinion of Trimble, J., in a like case to this promulgated at this term. Riffe v. Railway, 207 S. W. 78. In the Cooney Case it was pleaded that the purchasing railway "assumed" the liability of the receivers. It is true that in every sense it did not broadly The facts show that what is known as assume all obligations of the receivers. But | Foster creek in Ray county, Mo., runs paralin effect it did. As stated in the Riffelel with the roadbed of the Wabash RailCase, there was not what might ordinarily way's (formerly the Wabash Railroad's) right be called a personal assumption of the obli- of way in an easterly and westerly direc For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes