the American doctrine, whenever a decision upon the point is called for.

The general doctrine stated above is controlling in cases where a transaction, otherwise legal, is invalidated by the failure of the lessee to comply with a statutory requirement.R

$ 8. Lease unauthorized. Liability of lessor to servants of lessee.

The general doctrine that an unau

Co. v. Eastern Counties R. Co. (1851) 9 Hare, 306, 68 Eng. Reprint, 520, 7 Eng. Ry. & C. Cas. 643, 21 L. J. Ch. N. S. 837.

8 Ricketts v. Chesapeake & O. R. Co. (1890) 33 W. Va. 433, 7 L.R.A. 354, 25 Am. St. Rep. 901, 10 S. E. 801 (railroad company held liable for an assault by a conductor controlling the train of a licensee, a foreign company, which had not taken the steps which the statute prescribed as conditions precedent to a lawful use of the road); Freeman v. Minneapolis & St. L. R. Co. (1881) 28 Minn. 443, 10 N. W. 594 (lessor of road leased to foreign company which had not complied with provisions of the enabling statute was held liable for an injury caused to a traveler by a defect in a highway crossing).

1 United States courts.

In Hukill v. Maysville & B. S. R. Co. (1896) 72 Fed. 745, it was held by a court sitting in Kentucky that no cause of action against the lessor was stated on the face of a petition which averred in substance that an engineer had been struck by a plank projecting from the roof of a car standing on the track adjacent to the one on which his engine was being moved. It was pointed out that the distinction thus drawn between the liability of the lessor to the public and to servants of the lessee was not considered or suggested in the opinion of the court in Hukill v. Chesapeake & O. R. Co. (1895) 65 Fed. 138, because it was unnecessary for the purposes of the decision. The conclusion reached was that. "as the joinder of the Maysville & Big Sandy Railroad Company is used as a reason to oust the jurisdiction of this court," the application for a remand of the case to the state court must be denied.

In Williard v. Spartanburg, U. & C. R. Co. (1903) 124 Fed. 796, a judge sitting in South Carolina, after having

thorized lease does not relieve the lessor company from liability in respect of the torts of its lessee (see § 7, supra) has been held to be inapplicable, where the action is brought by a servant of the lessee to recover for an injury caused by negligence in respect of the operation of the leased road.1

On the other hand, it has been laid down that the lessor company is not exempt from liability in cases where referred to some of the cases in which it had been held "that the public can hold the lessor company responsible for injuries resulting from defects in the roadbed, from insufficient plant, and, in some states, even from acts of negligence of the lessee," continued as follows: "But the present action is brought, not by one of the public injured by the operation of the lessee railroad, but by an employee of the lessee, injured in the performance of his duty through the negligence of an employee of the lessee, and not from any structural defect in the road. The action is based on a tort quasi ex contractu, growing out of the contract of service and a breach of duty under that contract. There is no such contractual relation between the employee of the lessee with the lessor, and consequently no breach of duty upon which an action could arise." A motion to remand the case to the state court was accordingly denied. A servant of a lessee "needs no protection as one of the general public, because he can enter the service, or not, as he chooses. He is under no compulsion to take employment from an irresponsible company, and he certainly knows whom to sue for a wrong inflicted through his employer's neglect, for the latter is certainly liable to him in such case. The reason of the rule which holds the lessor liable fails in the case of an employee of the lessee, and we think that to follow it in a case like this would be to give it an arbitrary, and not a reasonable, application.'

Indiana.

In Baltimore & O. & C. R. Co. v. Paul (1895) 143 Ind. 23, 28 L.R.A. 216, 40 N. E. 519 (injury caused by defective appliances and incompetence of engineer), the Culberson Case (Tex.) (see infra) was followed. The position taken was that "whatever the attitude of the operating company,

the cause of the injury complained of was a structural defect. The passages quoted in the footnote show that the consideration mainly relied upon by the courts by which the forthat also is the attitude of the appellee, since he was an operative of the operating company." The court also observed that, if the plaintiff's employer operated the road under a lease, "a presumption of the invalidity of the lease would not affect the question" of the lessor's liability. Louisiana.

In Travis v. Kansas City, S. & G. R. Co. (1907) 119 La. 489, 10 L.R.A. (N.S.) 1189, 121 Am. St. Rep. 526, 44 So. 274, where the plaintiff's husband was crushed to death in a collision between the locomotive he was working on and a lot of dead cars that stood in the darkness on the yard of the defendant company, the gravamen of the claim was that the accident occurred through the negligence of the defendant, in having failed, while constructing the road, to make provision for lighting the yard, and through the negligence of both companies in not having lighted said yard. Held, that the action was not maintainable. The syllabus of the court is as follows: In the absence of charter or statutory permission to lease its road, a railroad company is held liable for the breach on the part .of its lessee of any of those duties imposed upon the lessor company by its charter, or by law, in favor of the public; that is to say, of carrying freight and passengers safely, and of operating with due care to the safety of the public generally. But in considering the liability of the lessor company a distinction is made between an employee and the public generally. The employee cannot recover for the breach of a duty arising under the contract of employment, as, for instance, the duty of providing a safe place to work in. The duty of the master to furnish the servant a safe place to work in is nothing more than one of the implied obligations of contract. It is not a duty arising from the general relation which the railroad occupies towards the public. The duty to light the yard of the railroad company is not a duty owing to the public by the lessor company, but merely one arising out of the contract of employment. The question of 28 A.L.R.-10.

mer of these propositions has been approved is that the servants of the lessee company are not members of the public. But this view as to the nature of their position is not accepted

what light shall be furnished to the employee to work by on the premises of the employer is one strictly between the employee as such, and the employer as such.

Texas.

East Line & R. River R. Co. v. Culberson (1888) 72 Tex. 375, 3 L.R.A. 567, 13 Am. St. Rep. 805, 10 S. W. 706 (conductor killed when attempting to couple cars); Evans v. Sabine & E. T. R. Co. (1892) Tex. Civ. App. 18 S. W. 493 (injury caused by the negligence of a fellow servant of the complainant in the management of a car); Baxter v. New York, T. & M. R. Co. (1893) Tex. Civ. App. 22

S. W. 1002 (car improperly loaded). 2 In Trinity & S. R. Co. v. Lane (1891) 79 Tex. 643, 15 S. W. 477, 16 S. W. 18, the lessor was held to be liable for an injury occasioned to a brakeman who had been thrown from a car by a jolting, due to an unevenness of the track. The court referred to its previous suggestion in the Culberson Case (see note 3, infra) that cases of this type might constitute an exception to the doctrine there laid down. This case was followed in Texas & P. R. Co. v. Moore (1894) 8 Tex. Civ. App. 289, 27 S. W. 962 (injury caused by low overhead bridge); Galveston, H. & S. A. R. Co. v. Daniels (1894) 9 Tex. Civ. App. 253, 28 S. W. 548, 711 (engineer of lessee killed by collapse of bridge).

3 In East Line & R. River R. Co. v. Culberson (Tex.) supra, the court argued thus: "The lessor, by accepting its charter, assumes the obligation to carry passengers safely over its line. If it intrusts that duty to another company, and a passenger is injured, it is responsible. It binds itself to carry all freight offered to it, and to deliver it safely. Should its lessee fail to do this, it is liable. It assumes to operate its road safely and carefully, so as not negligently to destroy or damage property, and not to injure persons who have the right to pass on or near the track. Should its lessee negligently do damage to property, or inflict personal injuries upon wayfarers crossing the road, this is failure of duty on its part, and it is re

sponsible for the wrong. But the duties which are owed by a railroad company to its servant are not duties owed to him in common with the public, but grow out of the contract of service. He assumes the relation of servant to his employer voluntarily, and out of it arise the reciprocal obligations from one to the other. It seems to us that the relation of the servant of the company operating the road to the owner is very different from his relation to his employer, and that the relation of the owner of the road to him is different from its relation to the general public. His contract is not with the company owning the road; and it may be asked, Does the latter owe him the duty of a master to his servant, or guarantee that the master with whom he has voluntarily contracted will perform its obligation to him? It may be that if the injury had occurred by reason of a defect in the roadbed or track, and not by reason of a defect in the engine, the company charged with the duty of keeping up the road would be liable. But if the injury was caused entirely by another company operating the owner's road, and was inflicted upon one of its own employees, by reason of a defect in machinery entirely under its control, it is difficult to see upon what principle of policy or justice the lessor should be held liable, merely because it owned the road. In the case proposed to be made by the evidence offered, it seems to us that the liability of the .

em

ployer [of the deceased] would have been precisely the same on the defendant's road as if the train had been running upon its own road at the time of the accident. The act of the Missouri, Kansas, & Texas Company in operating the road without a license from the legislature, if such was the fact, was merely illegal in the sense that it was unauthorized; and the object in holding the lessor responsible in such a case is certainly not to impose a mulct or fine by way of punishment. The reason for the rule is the protection of the public. who need the protection. The passenger and the shipper of goods have no option, but must avail themselves of the services of the lessees, whether the lease is authorized or not. The law will not permit the owner of the road to shirk its duty to them by turn

ing over its road to another company; nor will it permit it to deny its liability where it has allowed such other company, without authority of law, negligently to injure wayfarers over the track or property along the line. There is no privity between the persons injured in such case and the operating company. It is not so with an employee who voluntarily enters the service of the latter company with a knowledge of the facts, and participates knowingly in the wrong, if wrong it be."

The opinion delivered in the above case was pronounced "very satisfactory" in Hukill v. Maysville & B. S. R. Co. (1895) 72. Fed. 745, where these remarks were made: "The lessor company, by virtue of its character, assumed the obligation to perform certain duties for the public in carrying freight and passengers, and in observing statutory precautions for the protection of the public from danger in the operation of its railroad. When it unlawfully shifts to another company the burden of the discharge of these duties to the public, any loss resulting to any member of the public from a failure by its lessee to discharge them may be made the basis for a claim for damages against the lessor company. The duty owing from the lessee company to its employees is, however, one which arises wholly from contract, and is not imposed by the charter of incorporation. The lessor company was not obliged to employ as a servant any particular member of the public. A person entering the service of the lessee company, therefore, acquired no right against the lessee except by virtue of the terms of employment. Such employee came into no privity of contract with the lessor company. No case has been cited to us in which it is held that the servant of the lessee company, operating under a void lease, can recover against the lessor company for injuries sustained by the negligence of the lessee company in the operation of the road. The only cases where liability in tort is enforced against the lessor company are those where the person injured is a member of the public, with the right to rely upon the discharge of the public duties assumed by the lessor company in the operation of the road."

4 See North Carolina R. Co. v. Zach

to be taken as constituting a special class of persons, separable from the general category which embraces all persons who do not stand in any contractual relationship to the lessor, is open to the serious, if not fatal, objection that, with regard to injuries caused by tortious acts, the law does not ordinarily recognize more than two descriptions of claimants, viz., those who bear that relationship to the tortfeasor and those who do not. Furthermore the theory is apparently inconsistent with the predication of the lessor's liability in respect of injuries caused by defective structures. The reason specified for imputing this liability is that the maintenance of the track and other portions of the permanent plant is a "duty owed to the public." So far as regards injuries of this particular kind, therefore, the servants of the lessee are treated as members of the public. But there seems to be no satisfactory ground upon which they can be assigned to that category when suing for injuries of this particular description, and excluded from it when their claims are founded upon injuries for which the lessor is declared not to be responsible. Negligence in respect of the operation of the road is certainly no less a breach of a duty owed to the public than negligence in respect of the maintenance of structures. See § 16, infra.

If the servants of the lessee company are members of the public quoad the lessor, there is apparently no escape from the conclusion that they are entitled to hold the latter responsible for their injuries under such circumstances as those involved in the cases cited under the preceding paragraph, unless that conclusion is deemed to be repelled by the consideration adverted to by the supreme court of Texas, viz., that they "voluntarily enter the service of the lessee and participate knowingly in the wrong" of ary (1914) 232 U. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914C, 159, 9 N. C. C. A. 109, and Chicago & G. T. R. Co. v. Hart (1904) 209 Ill. 414, 66 L.R.A. 75, 70 U. S. 654-reviewed in § 11, note 5, infra, wherein

operating the road under an illegal lease. But the soundness of the reason thus specified for denying the right of action is by no means indisputable. The disabling consequences of participation are not predicable in the absence of proof that the illegality of the lease was known, actually or constructively, to the claimant, and all, or virtually all, the claimants in cases of the description with which we are now concerned, belong to a class of persons to whom such knowledge cannot fairly be imputed.

The present writer ventures to express the opinion that the arguments under discussion are fundamentally defective in this regard, that they do not evince any proper appreciation of the logical consequences of the fact that an unauthorized lease is void for all purposes. All the authorities are agreed that, in point of law, the effect of such a lease is to render the lessee company and its servants the agents of the lessor, so far as the operation of the road is concerned. It seems difficult to deny that the necessary result of the situation thus created must be the subjection of the lessor company to a liability for the torts of those agents which is, at least, as extensive as that which it would have incurred if it had voluntarily and directly employed them for the purpose of operating its road. If this should be regarded as being the scope of its liability, the further inference is possibly indicated that it would be entitled to avail itself of the defense of assumption of risk under any circumstances which would render that defense admissible as against persons employed by it as servants or agents on the ordinary footing. In this point of view a portion of the decisions denying the right of action would be correct on the facts as shown. On the other hand, those which have affirmed the responsibility of the lessor for injuries caused by defective structures servants of the lessee were characterized as members of the public. That this is the category to which they belong is also taken for granted in all the cases in that subsection.

would be sustainable on the ground of the lessor being subject to a non-delegable duty in respect of furnishing the claimants with a reasonably safe place of work. But it might be contended with some apparent plausibility that a lessor company which is a party to an illegal lease should be deemed to be wholly precluded, on the ground of that illegality, from availing itself of this defense.

$9. Lease authorized by statute not containing an exemption clause. Doctrine that lessor is liable for the torts of the lessee.

The position taken by some courts

1 United States courts.

The Illinois doctrine (see infra) was treated as controlling in Chicago, B. & Q. R. Co. v. Willard (1910) 220 U. S. 413, 55 L. ed. 521, 31 Sup. Ct. Rep. 460 (case held to be removable to state court on the ground that, as the lessor and lessee were jointly liable, there was no "separable controversy").

A note appended to the report of M'Alister v. Chesapeake & O. R. Co. (1907) 85 C. C. A. 316, 157 Fed. 740, 13 Ann. Cas. 1068, shows that the reasons assigned by Cochrane, Dist. J., for refusing to remand the case to the state court, were these that one of the defendants, a Kentucky company, had power to lease its railroad to the other defendant, a Virginia company (McCabe v. Maysville & B. S. R. Co. (1902) 112 Ky. 861, 66 S. W. 1054); that the allegation in plaintiff's amended petition to the effect that her decedent was injured "at or near a public crossing" was an admission that he was a trespasser on the railroad track, and that the lessor company was not liable for injury caused to a trespasser by the negligence of its lessee. The decision of the district judge was affirmed by the court of appeals. A second motion to remand the case was denied by the same district judge. The effect of the Kentucky cases was stated as follows: "If the cause of the injury was the omission of a public duty, i. e., of a duty owed to the public generally, then the lessor is liable; but if not, and it was the omission simply of a duty owed the person injured, growing out of the particular relation between him and the lessee, then the lessor is not liable, notwithstanding

is that, in an action brought by a person other than a servant of the lessee company to recover damages from the lessor for an injury resulting from a tort committed by the lessee or its agents while the contract is in force, a statute authorizing the lease should not be construed as exempting the lessor from liability, unless such exemption is expressly provided for, either in the statute itself or in some other enactment applicable to the transaction.1

he may be said to be a member of the public." In this point of view the nonliability of the lessor was deemed to be deducible from the consideration that the death of the plaintiff's decedent "was caused by the omission of a duty owed to him alone, i. e., of not wantonly running him down, after his presence on the track was discovered." The theory thus propounded was not adverted to in the reversing judgment of the Supreme Court, the ratio decidendi being that the construction placed by the district judge upon the petition was erroneous, and that the allegations, if supported by appropriate testimony, would require the submission of the case to the jury. (1917) 243 U. S. 302, 61 L. ed. 735, 37 Sup. Ct. Rep. 274. The conclusion arrived at in this point of view was that, since the amended petition, alleging negligent operation of the train of the Virginia company (lessee) at a public crossing, stated, under the doctrine of the Kentucky cases, a joint cause of action against that company and the Kentucky company (lessor), the claim that there was a separable controversy justifying removal by the Virginia company was not sustainable. The case was cordingly remanded to the state court. It is worth noting, as a remarkable instance of the "law's delay," that this merely preliminary stage of the proceedings was reached about fifteen years after the first petition for removal was filed!

ac

The doctrine of the South Carolina cases was applied in Case v. Atlanta & C. Air Line R. Co. (1915) 225 Fed. 862 (passenger injured).

The foregoing cases all proceed upon the theory that the decisions of a