KANSAS CITY SOUTHERN R. CO. v. REINMAN

KANSAS CITY SOUTHERN R. CO. v. REINMAN
1917 OK 55
162 P. 726
63 Okla. 69
Case Number: 7164
Decided: 01/09/1917
Supreme Court of Oklahoma

KANSAS CITY SOUTHERN R. CO. et al.
v.
REINMAN.

Syllabus

¶0 1. Railroads--Lien for Supplies--Persons Entitled--Hiring Mules to Contractor. One who hires his work mules to a construction company for a stipulated price to be used exclusively by the latter or its servants in grading or constructing the roadbed for a railway, pursuant to its contract with the railroad company, is not entitled to a lien for such hire upon the roadbed, buildings, equipment, etc., of said railroad by virtue of section 3868, Rev. Laws 1910, which provides: "Every mechanic, builder, artisan, workman, laborer or other person, who shall do or perform any work or labor upon, or furnish any materials, machinery, fixtures or other thing towards the equipment, or to facilitate the operation of any railroad, shall have a lien therefor upon the roadbed, buildings, equipments, income, franchises, and all other appurtenances of said railroad, superior and paramount, whether prior in time or not, to that of all persons interested in said railroad as managers, lessees, mortgagees, trustees, beneficiaries under trusts or owners."
2. Same--Liens--Work or Labor--"Other Things"-- Statute. Under section 3868, Rev. Laws 1910, providing a lien in favor of one who shall furnish any "materials, machinery, fixtures or other thing towards the equipment, or to facilitate the operation of any railroad," the words, "other things," have reference to things furnished similar to those denoted by the preceding words, and do not include the hire of work mules furnished by the claimant to a contractor for use in railroad construction, pursuant to a contract between the hirer and the railroad company.

Kyle & McCombs and James B. McDonough, for plaintiff in error.
W. L. Curtis, for defendant in error.

KANE, J.

¶1 This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error Ferguson Contracting Company, defendant below, for the recovery of a sum of money alleged to be due for the hire of several spans of work mules, the Kansas City Southern Railway Company being made a party to the action for the purpose of having any judgment obtained against the contracting company declared a lien against the property of the railway company. Hereafter for convenience the defendant in error will be designated as the "plaintiff," the Ferguson Contracting Company, "the Contracting Company," and the Kansas City Southern Railway Company, the "Railway Company." The plaintiff in his petition alleges, in substance, that he hired certain teams of mules to the Contracting Company to be used by it for the purpose of grading, regrading, and construction work, pursuant to the terms of a certain contract between the Construction Company and the Railway Company, for which hire it agreed to pay said plaintiff the sum of $ 675, which said sum is long past due and wholly unpaid, although demand has often been made therefor and refused. Upon trial of this issue there was judgment against the Contracting Company in favor of the plaintiff for the amount claimed, and a decree was also entered, fixing the amount of the judgment as a lien against the property of the Railway Company. The Railway Company excepted to the part of the action of the court fixing the amount of the judgment as a lien against its property, and in due time filed this proceeding in error in the Supreme Court for the purpose of having the same reviewed. The evidence shows without material controversy that plaintiff was a resident of the state of Arkansas, in which state the alleged contract of hire between himself and the contracting company was entered into; that under this contract of hire the plaintiff retained no control over the mules and performed no labor with them, and in no manner directed their labor, either through himself or any one in his employ or service. The plaintiff had nothing whatever to do with the performance of any labor in any manner, either with the mules or personally for the Railway Company. Counsel for the Railway Company contend that:

"Under that state of the evidence it is respectfully submitted that there can be but one disposition of the case, and that is a reversal on the ground that the statute does not authorize a lien for the rent of mules."

¶2 The statute in question (section 3868, Rev. Laws Okla. 1910) provides:

"Every mechanic, builder, artisan, workman, laborer or other person, who shall do or perform any work or labor upon, or furnish any materials, machinery, fixture or other thing towards the equipment, or to facilitate the operation of any railroad, shall have a lien therefor upon the roadbed, buildings, equipment, income, franchises, and all other appurtenances of said railroad, superior and paramount, whether prior in time or not, to that of all persons interested in said railroad as managers, lessees, mortgagees, trustees, beneficiaries under trusts or owners."

¶3 Various phases of this statute have received consideration by this court in the following cases: Kansas City Southern R. Co. v. Wallace,

¶4 All the Justices concur.