fendants is o\Terruled, and the injunction is accordingly ordered, with leave at any time hereafter, when the common stockholders shall have been admitted into their rights as ordered and decreed in the main case, to move for a modification or dissolution of the same. The supplemental bill will be dismissed as to the Port Huron & Northwestern Railway Company, with costs to be taxed against complainants. The remaining costs itl both cases will be taxed against the Flint & Pere Marquette Railroad Company.
P. Ry. Co.et al.
lntervenor,) v. WABASH, ST. L. &
(Cz'reuit Court. S. D.lllinoia. 1888.) :. , 1.
An expressman and baggageman was killed in a collision, while in the dis, 'charge of hill duty on defendant's passenger train; through the negligence of the employes of defendant's freight train. Held, that they were not fellowservants. 1 . . Intestate left a widow, but no children or descendants of children. He was about 80 years old; ha.d been earning $55 a month; had been in defendant's employ several years; was temperate, industrious, living with and supporting his wife. He left uo estate, and his widow was without means of support. . Damages assessed at $4,000.
DEATH BY WRONGFUL ACT-DAMAGES.
In Chancery. W. Black, for intervenor. George B. Burnett, for receiver.
AU,EN, J. In the matter of the intervening petition of Julia A. Ballou, administratrix, to be allowed damages for the death of her husband, William A. Ballou.' On the 16th day of August, 1887, the intervening petition of Julia A. Ballou was filed in this case, for the purpose of obtaining damages for the alleged unlawful killing of her husband by the Wabash, St. Louis & Pacific Railway Company. Subsequently the case was argued before the district judge, and submitted upon the following agreed state of facts: "It is hereby stipulated and agreed by the parties to this action that a jury be, and the same is hereby. waived. and said cause submitted to the court for determin!'tion upon the follOWing stipulation as to facts: That the said Julia A.. Ballou was duly appointed administratrix of William A.. Ballou by. the county court of Vermillion county, TIl.· on the 2<1 day of July. 1887; said county court of Vermillion county having jurisdiction of said proceedings for the making of said appointment. That the said William A. Ballou, deceased, came to his death on the 28th day of October, A.. D. 1886. from an injury received in a cullision on said Wabash"St. Louis &, Pacific Railway, on the date
. 1 As to who are fellow servants, see Wolcott v. Studebaker, 34 Fed. Rep. 8, and note, McMaster v. Railway Co., (Miss.} 4 South. Rep. 59.
CENTRAL TRUST CO. V. WABASH, ST. L. <It P. RY. CO.
last aforesaid, in the county of Madison, in the state of Illinois; and that said deceased was not guilty, in the matter which resulted in his death, of any negligence or misconduct Whatever, nor was he in any measure responsible for the collision in which be was killed. That the facts in ref..rence to said collision and to employment and position of the deceased are as follows, to-wit: That the deceased was an expressman and baggageman in the employment of the receivers of said Wabash, st. Louis &I Pacific H.aiIway, train No. 46, engine No. 1168, which passenger train was at the time running east between Gillham and Edwardsville ,Tunction, in Madison county, Ill., at the rate of about thirty mill'S per hour. He was in his car in the performance of his regular duties. This was about 11:55 at night. Said passenger train had the right of way upon t.he track. Under the rules and regulations of the receivers, it was· the duty of the employes in charge of the second section of freight train 77, going west, to side-track and hold said train at Edwardsville Junction, until said passenger train 46 arrived at said station, and passed said freight train; but instead of so doing said freight train was by said servants propelled out upon the main .track moving west at the rate. of twenty miles an hour, and at some time between 11:45 and 12 o'clock at night met and collided with said passenger train, the result of the collision being the instant killing of said deceased. Both of said trains were the property of said ra!!road, being operated by the servants and employes of said receivers, and sub. ject to their control. Said deceased had no control whatever over the motion or op\!rating of either train, and said collision was occasioned by the negligence of the said servants of the said rail way company in charge of the said freight train being upon the main track of the said milroad on the time of said passenger train, which, at the time, had the right to the road. and in violation of the rules and regulations of the receivers of said railway company,as hereinbefore stated. That said William A. Ballou died intestate, leaving the administratl'ix, his wife. and no children or descendants of children surviving him. That at the time of the death of the said William A. Ballou he was about thirty years of age; was then earning $55 per month wages; had been in the employ of the company for several years; was temperate and industrious. That he left 110 estate. That up to the time of his death he was living with his said wife, supporting her, and that she had and bas no estate or means of support. And it is further stipUlated that, if there be a finding in this case upon the facts above stipulated in favor of the administratrix, the court shall assess such damages in favor of the intervenor for the pecuniary loss sustained, as in the opinion of the court is warranted by the facts and stipulations and the law." Under the agreement no issue of fact is presented, but the sole question is whether liability under the law attaches to the receiver of the railway corporation for causing the death of William A. Ballou under the admitted facta and circumstances connected with the killing; The court is relieved from the examination of any question of contributory negligence, for, according to the stipulations, deceased at the time of his death was on the east-bound passenger train, in the discharge of his duties as expressman and baggageman, and wholly free from any fault whatever. The liability of the receiver of the railway corporation is denied because of the relation deceased sustained to it at the time of his death j and the court is earnestly asked to apply the rule that the employer is not liable to one servant or laborer for an injury resulting from the carelessness or negligence of another servant or co-laborer. This rule has undergone many interpretations and expositions in England
and this country, sometimes but happily the flexibility of the priliciples of the common law enables courts generally to adjust the of the principle in harmony withjustice and sound reason. OneqftPll CR\'les announcing the doctrine was decided in Englandin 1837, (Priestley,v. Fowlm',B Mees. & W. l,}and followed in this country in 1842 by the case of FarweU v. Railroad Oorp., 4 Metc. 49, in which Chief Justice SHAW lays down the rule that "he who engages in ofaridther for theperformarice of specified duties for takes upon himself the natural and ordinary risks and PerilS to the performance of such services, and" iIi legal contempllltiQn, the compensation is adjusted accordinjrly. And we are not aware'ofany principle which should except the perils arising from the carele'BllDtlss or ignorance of those who are in the same employment. These ;are 'perils which the servant is tlslikely to know, and against as guard,. as the master." This statement of to bll tpo broad to wel} express the lawupon the subjE!Ct as it in this country at this time, for it itieffect wholly exempts tne'master from responsibility for any injury resulting from the negligence of any fellow-servalltwho, may be engaged in the same employ1n!'lIl.t:, ' Reference should be haei, in determining the liability of the the nature or c;:haracter of the duties of the servant or agent a.t the of the imputed or admitted llegligence;and a distinction Dlust, be, drawn and maintained between a servant or agent with the powers of the principal or master, and one who is simply employed to perforIll plare ve details. In the former case the agent or servant· repmaster, and his negligence is the negligence of the master as he was personally present: while in the latter a different 9btain. 'rhe language of CHURCH, C. J. t in Flike v. Railroad ,00.,.53 N.. Y. 549, sustains this view: ; '1 TMtr\le rule, I apprehend, isto hold tpe corporation liable for negligence .9r'Want.of prQper care in l'espect to, such acts and duties as it is required to ,alld discharge as master or prhrcipal, without regard to the rank 01' title of the agent intrusted with the performance.. As to such acts, the agent occupies the place of the corporation, and the latter should be deemed present, liable for the mannerIn which they are performed,"
yIn O:>rcoran v. 'Holbrook, 59 N. Y. 517, Flike v. Railroad Co., is fully
The supreme court of Illinois, in a recent case, when considering the question as to what was essential to constitute a co-employe, jn order that the master might be exempt from liability on account of injuries Bustained by one resulting from the negligence of the other, in an able opinion by Chief Justice SUHOLFIELD, held" that ruling reqUires ,that the servants of the same master, to be co-employes so as to exempt the masier from liabili.ty on account of injuries sustained by one resulting from ,the' negligence. of the other, shall be directly co-operating with each otoorin's:particular ·business, i. the same line of employment; or-that thekusual duties bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution.' The idea is that the' relation between the servants.
CENTRAL TRUST CO. V.WABASH, ST.L. '" P. RY. CO.
must l)e such that each as to the other,' by the exercise of ordinary caucan either or remedy the negligeht acts of the other, or protect himself against the consequences; and, of course, where there is no right or opportunity of supervision, or where there is no independent wilJ, and no right or opportunity to take measures to avoid the negligent acts of another without disobedieL1ce to the orders of his immediate superior, the doctrine can have no application." Rolling-Mill Co. v. Johnson, 114 Ill. 57. In Railroad Co. v. Keary, 3 Ohio St. 201, the supreme court of that state, in discussing the distinction to be made in their relation to the common principal between servants of :J, corporation exercising no supervision over others engaged with them in the same emp]oyment, and agents of the corporation clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence, said: "For this pnrpo.se the conductor is employed, and In this he directly represents the company. They contract for and engage his care and skill. They commission him to exercise that dominion over the operations of the train which essentially pertains to the prerogative of the owner; and in its f'xercise he stands in the place of the owner, and is in the discharge of a duty, which the owner. as a man, and a party to the contract of service, owes to those placed under him, and whose lives may depend on his lidelity. His will alone controls everything, am) it is the will of the owner that his intelligence should be trusted for this purpose. 'fhis service is not commun to him and the bands placed under him. They have nothing to do with it. His duties and their duties are entirely separate and distinct, although both to produce the result. It is his t·o comll)and, and others to obey and execute. No service is comlnonthat does not admit a common participation, and no servants are fellow-servants when one is placed in control over the other." . The supreme court of the United States in Railway OJ. v. Ross, 112 O. S. 377, 5 Sup. Ct. Rep. 184, and in Hough v. Railway OJ., 100 U.S. 213, sustilin the doctrine laid down in 3 Ohio St. 81.tpraj and this view seems to he in harmony with authority to be found in the text-books. Mr. Wharton, in his work on the law of negligence, section 232a, serves: "It has sometimes been said that a corporation is obliged to act always by servants, and that it is. unjust to impute to it personal negligence where it is impossil.Jle for it to be neglig,'nt personally; but if this be true, it would relieve corporations from all liability to servants. The true view is that as.corporations can ouly act through superintending officers, the negligences of those officers, with respect to other sel'vants, are the negligences of the corporations." . In the light of these authorities the contention that the deceased and the conductor and engineer of the freight train were fellow-servants in the sense that would shield the corporation from liability for their' gross negligence must be rejected. The employes of the freight train it in charge represel1ted the corporation at the time of the collision, resulting'in the death Of petitioner's husband, and their admitted negligence I hold to be the negligence of the corporation to the same extent as if it·
were a natural person, actually present and superintending the train when the deceased was killed. The damages of intervening petitioner will be assessed at $4,000.
(Circuit Court, D. Indiana. March 29, 1888.)
SALE-:RESCISSION BY SELLER-TENDER OF MONEY PAID-REPLEVIN-DISPOSITION OF,}l'ENDER AFTlllR JUDGMENT.
M. bought goods on false representations as to his solvency, and, having disposed of $900 worth of them, transferred his whole stock to defendant in payment of prior debts. The seller, having tendered both to defendant and M. $400 paid by the latter on his purchase, brought replevin against both, and deposited the sum in court. Held that, defendant not being a bona fide purchaser as against plaintiff,plaintiff was entitled to said sum in part payment of the $900 worth of goods disposed of by M.
At Law. On motion for return to defendant of money brought into court to keep good a tender. . The facts are not in dispute. The plaintiff, a corporation engaged in the wholesale shoe trade at Cincinnati, had sold goods to the value of $2,540.50 to Miller, a retail dealer at Fort Wayne. Miller, when he made his purchases of the plaintiff, was insolvent,-the principal part of his indebtedness being to Trentman,-and obtained credit upon his pm:chases of the plaintiff by means of representations in respect to his solv\ ency which entitled the plaintiff, on learning the facts, to reclaim the goods, and this action (in replevin) was brought for that purpose against both Miller and Trentman; the latter having purchased Miller's entire stock of goods, paying therefor by crediting the price upon his demands against Miller. With this stock of goods Trentman came into possession of shoes or other goods sold by the plaintiff to Miller of the value of$1,640; the remainder ($900 worth) having been sold or disposed of by Miller before the sale to Trentman. Before bringing the action the plaintiff tendered to Miller, and also to Trentman, the sum of $400, paid by Miller on his purchases, and demanded of each a return of the goods. Miller having died, trial was had, and a verdict and judgment rendered against Trentman for a return of that portion of the goods found in his possession, or the payment to the plaintiff of $1,640.50, the assessed value thereof. Upon these facts counsel for Trentman say: '. "Oor contention is that, this being an action of replevin on the la w side of
the court"there could be no action maintained without a rescission of the contract under which the goods replevied were obtained. In order to such rescis. sic,m , it is settled that whatever was received upon the contract must be tend.. r.rheplaintiff has recognized this r\.lle, and proved upon the trial l!o tender' both to till; fraudulent vendee and to Trentman, who purchased the goods of him, and has followed this np by bringing the money into court. That such 'ttlnder' must ·be made and kept good· in such an action is settled in