text:
    The East St. Louis Connecting Railway Company v. The East St. Louis Union Railway Company.

      Filed at Springfield Oct. 1, 1883

      Rehearing denied January Term, 1884.

    1. Bailboad ebanchise—not an exclusive right—competing lines allowable. The mere grant of the right to build a railroad between given termini creates no implied obligation by the State to not thereafter grant the right to build other railroads parallel with it between the same termini; nor does it imply an obligation on behalf of the State that other railroads, with their tracks and switches, shall not thereafter be granted the right to cross the State in a different direction, and thus pass over its tracks and switches.
    2. The public welfare requires that the business of carrying shall be open to competition, as far as possible, and no monopoly in that regard, however limited the sphere of its operation, can be presumed to have been intended by the legislature in the enactment of the general law for the formation of railroad corporations.
    3. Under the laws of this State a railway corporation already organized and operating its road can not enjoin another such corporation, organized under the same general Bailroad act, from building a rival road between the same termini, and parallel with the track of the former, for the transaction of the same business, although its main and lateral tracks and switches may be intersected and crossed by the proposed new road, no continuous portion of its track being sought to be taken. The fact that the construction of the new road may damage the business of the old one, and cause delay in operating its trains, affords no ground for enjoining proceedings to condemn for a right of way by the new corporation. Legal damages assessed as is provided ,by law will afford the old company an adequate remedy for all the injury it may sustain.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    This was a bill in chancery for an injunction, by the East St. Louis Connecting Eailway Company, against the East St. Louis Union Eailway Company. The hill was filed in the City Court of East St. Louis, and a temporary injunction was thereupon granted. Subsequently, the venue was changed to the circuit court of St. Clair county, and on a final hearing that court dissolved the temporary injunction and dismissed the bill. This appeal is from that decree.
    It is alleged in the bill that, the complainant, on the 26th of December, 1877, duly organized under the general law of the State as a railroad corporation, for the purpose of constructing and operating a single or double track railroad from Venice, in Madison county, to the Illinois and St. Louis Bail-road Company’s dyke, in St. Clair county, with lateral tracks connecting with the various railroad tracks, elevators, mills, stock yards, river transfer tracks and landings, between said points, that now are or hereafter may be constructed; that the city of East St. Louis, on the 5th of August, 1878, granted said company, by ordinance, the right of way along .Eront street, with lateral tracks across the same; that on the 8th of October, 1878, on petition of the owners of three-fourths of the real estate fronting on said Eront street, the said city, by ordinance, granted additional privilege to complainant on said street; that the complainant, at an expense of more than $>100,000, constructed its main tracks and lateral tracks, connecting its main tracks with the various railroads and depots, elevators, ear ferry landings, and mills, as Shown in a plat which is made an exhibit to the bill, and has been for several years transacting a general carrying and transfer business for the divers railroads, elevators, ferry landings and warehouses abutting upon and adjacent to Eront street, over its main tracks and .the lateral tracks connecting therewith, transferring on an average 13,000 cars a month, realizing large sums of money therefor, all of which transferring is necessarily done over the lateral tracks upon Eront street, and that without the use of the lateral tracks, or if there is a substantial destruction of their usefulness by obstructions, the business of complainant would be almost wholly lost and destroyed, and said railroad, and the value thereof, destroyed; that on the 2d day of December, 1882, the city of East St. Louis passed an ordinance purporting to grant the right of way in Front street, together with lateral tracks across the same, to the defendant, which ordinance is made an exhibit to the bill, and alleged to be void; that on the 24th of June, 1882, the East St. Louis Union Eailway Company filed articles purporting to incorporate the same as a railroad corporation, in the recorder’s office of St. Clair county, Illinois, for the purpose of constructing and operating a single or double track railroad from the north end of Front street, in the city of East St. Louis, St. Clair county, Illinois, beginning at a point in said street one hundred and fifty feet north of Spring street, to a point one hundred and eighty feet south of Trendly street, in the city of East St. Louis, county aforesaid, with lateral tracks connecting the main tracks with the various railroad tracks, elevators, warehouses, stock yard, river transfer tracks and landings, between said points, that now are or hereafter may be constructed; that on the 22d day of December, 1882, the East St. Louis Union Eailway Company presented its petition to the county judge of St. Glair county, against the complainant, (who set the» time for the hearing thereof January 8, 1883,) for the condemnation of the right to cross the lateral tracks of complainant between the northern end of Front street and Bogy street, alleging therein that there were twelve such tracks, whereas there are eighteen; that the said Union railway threatens to follow such condemnation by condemnation across the other lateral tracks of complainant, and will at once condemn and take possession of said tracks and construct crossings over the same, unless restrained; that the location of the Union railway, as shown by the aforesaid plat, passes over the switches and frogs of seven of the lateral tracks mentioned in the condemnation proceedings, and that the construction of the crossings as located will utterly destroy said switches and entirely prevent the use of said seven lateral tracks; that its lateral tracks are indispensably necessary to the use and operation of the East St. Louis Connecting railway and the carrying on of its business; that the construction and operation of the East St. Louis Union railway over the lateral tracks of complainant, as proposed in the location of its road, and described in its said condemnation proceedings, as shown by the plat filed herewith, will render it impracticable for complainant to carry on its business and exercise its rights and franchises as a railroad corporation, and will be a substantial destruction of its property and franchises, and not for another and different or higher use, and will work an irreparable injury to complainant. The prayer is that the defendant may temporarily be restrained from proceeding with said condemnation proceedings, and from making said crossings over said lateral tracks, and that upon a final hearing the injunction be made perpetual.
    The answer denies the organization of the complainant as a railroad corporation, as alleged in the bill, and says that it is not a corporation de jure; admits the passage of ordinances Nos. 315 and 319; that persons acting under the name of the East St. Louis Connecting Eailway Company did build certain main tracks and lateral tracks on Front street, in East Si. Louis, but denies that it cost $100,000 so to do; that said persons, under the name of the East St. Louis Connecting Eailway Company, have been doing a large business on Front street, transferring ears, etc., but states the fact to be that the facilities of said persons are not sufficient for doing all the business which the public demands require to be done on said street; admits the passage of ordinance No. 378 by the city council of East St. Louis, but denies that it is null and void; alleges that the defendant is a railroad corporation duly organized by virtue of the act of March 1, 1882, and is desirous, without delay, to construct and put in operation its railroad, and that it attempted to acquire from complainant, or persons acting under the name of complainant, the right to cross certain lateral tracks which they had built on Front street, in East St. Louis, but was unable to acquire the right so to do, and thereupon filed its petition for condemnation thereof in the county court of St. Clair county; denies that the construction and operation of the railroad of the East St. Louis Union Eailway Company over the lateral tracks of complainant, as proposed in the location of its road, and described in said condemnation proceedings, will render it impracticable for complainant to carry on its business and exercise its franchise as a railroad corporation, and will be a substantial destruction of its property and franchises, and denies that such operation and construction of the railroad of defendant will work an irreparable injury to the complainant.
    The cause was heard on bill, answers and proofs. The errors assigned bring before this court the question of the correctness of the rulings of the court below in dissolving the injunction and dismissing the bill.
    Mr. E. A. Halbert, for the appellant:
    The appellant’s attorney believes that the cases of Central City Horse Ry. Co. v. Fort Clark Horse Ry. Co. 81 Ill. 523, and Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 97 Ill. 506, taken together and examined in the light of reason, certainly sustain the position of appellant as presented by this record. He cites, to sustain his views in that regard, Pierce on American Eailroad Law, pages 154-158, and the cases cited in the notes.
    Messrs. GL & G. A. Koerner, for the appellee:
    It is no objection that the building of a new road will practically destroy some switch-rails and frogs, or will require some switches to be changed. Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 97 Ill. 506; Chicago and Alton R. R. Co. v. Joliet, Lockport and Aurora Ry. Co. 105 id. 408.

      The complainant in this bill seems to think that its corporate grant, being anterior to that of defendant, is exclusive, in its character. By its terms it is not. But were it so expressed, the power to take the franchise upon making compensation still exists. 1 Redfield on Railways, (4th ed.) page 257.
    The legislature may, in all instances, determine when and where the public necessities require additional facilities, of a similar or analogous character, when the former grant is not exclusive. Charles River Bridge Co. v. Warren Bridge Co. 11 Pet. 426; Hudson and Delaware Canal Co. v. New York and Erie Ry. Co. 9 Paige, 323.
    This court has in strong terms approved of the doctrine, to the extent that the authority to construct a public thoroughfare, and the exclusive right to levy and collect .tolls for passing over it, conferred no exclusive right, in the line of travel which it was designed to accommodate, and that the legislature might authorize the construction of a rival thoroughfare for the accommodation of the same line of travel, although the effect might be not only to diminish the revenues, but absolutely to destroy the value of the first. Board of Trustees Illinois and Michigan Canal v. Chicago and Rock Island R. R. Co. 14 Ill. 314.
    We may refer also to the same doctrine approved in Matter of Kerr, 42 Barb. 119; B. and L. Ry. Co. v. Salem and L. Ry. Co. 2 Gray, 1.
    The corporate franchise of one railway may be taken for the construction of another. Richmond Ry. Co. v. Louisa Ry. Co. 13 How. 81; Newcastle R. R. Co. v. P. and Ind. R. R. Co. 3 Ind. 464.
    • The ease at bar is one where one corporation seeks to prevent the building of a rival road by enjoining it from crossing its lateral tracks. Under the authorities cited the rival road might greatly impair, or even utterly destroy, the franchise of the present road, upon making compensation. City Horse

      Ry. Co. v. Fort Clark Horse Ry. Co. 81 Ill. 523, and the other authorities cited by appellant, are strong arguments against him.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The purpose of the incorporation of appellant and appellee is the same,—that of transferring cars from one railroad to another, from the several railroads to the stock yards, and to the elevators, mills, warehouses and ferries accessible, and from these back again to the several railroads. They are incorporated under the same general law, and both have the requisite municipal authority for laying their tracks in the street. The main track of appellee does not cross that of appellant, but it lies within a few feet of it, and extends parallel with it, and crosses some of appellant’s lateral tracks and switches, etc., and some of the lateral tracks and switches which it will be necessary for appellee to construct and operate will cross the main track of appellant, and, perhaps, also some of its lateral tracks and switches. No continuous portion of appellant’s main track is taken and sought to be condemned, but crossings of and for lateral tracks and switches are alone the subject of the taking and condemnation prayed to be enjoined.

The evidence, when fairly considered, fails to sustain the allegation in the bill that the construction and operation of appellee’s railway over the lateral tracks of appellant, as proposed in the proceedings for condemnation, will render it impracticable for appellant to carry on its business and exercise its rights and franchises as a railroad corporation, and be a substantial destruction of its property and franchise. It does, however, show that appellant will be seriously hindered in the operation of its tracks, switches, etc., by the operation of appellee’s tracks and switches at the same time, and that this will greatly detract from the profits of its business, and depreciate the value of its property. In principle the case is simply one wherein one competing road is delayed in the movement of its trains by stoppages rendered necessary by crossing the tracks and switches of another, when no grant involving a contract not to be thus delayed exists, and no priority of right in that regard is otherwise shown. The mere grant of the right to build a railroad between given termini creates no implied obligation by the State to not thereafter grant the right to build other railroads parallel with it between the same termini. (Charles River Bridge Co. v. Warren Bridge Co. 11 Pet. 420; Hudson and Delaware Canal Co. v. New York and Erie R. R. Co. 9 Paige, 323; Illinois and Michigan Canal v. Chicago and Rock Island R. R. Co. 14 Ill. 314.) Nor does it imply an obligation on-behalf of the State that other railroads, with their tracks and switches, shall not thereafter be granted the right to cross the State in a different direction, and thus pass over its tracks and switches. (Chicago and Alton R. R. Co. v. Joliet, Lockport and Aurora Ry. Co. 105 Ill. 388.) The public welfare especially requires that the business of carrying, shall be open to competition as far as possible, and no monopoly in that regard, however limited the sphere of its operation, .can be presumed to have been intended by the legislature in the enactment of the general law for the formation of railroad corporations. When appellant organized as a corporation and built its road, it was charged with the knowledge that other companies had the right thereafter to organize and , build and operate their roads, precisely as appellee has organized and is seeking to build its road. The probability was within reasonable contemplation, and appellant’s stockholders acted with their eyes open, and took their chances of this kind of competition.

In Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 97 Ill. 506, where a crossing by one railroad over the switches of another was sought to be enforced, at page 523, in speaking of the statute under which these companies organized, and the general law in relation to eminent domain, it was said: “It seems plain, taking these two statutes together, that the General Assembly intended to leave not only the question of whether the taking of any given property for any given purpose named in the Eailroad act would be of such public use as to warrant the taking thereof, upon just compensation, without the consent of the owner, to be solved by the all-pervading laws of trade and commerce, but also to leave the question of the place and manner of such taking to he controlled upon the same principles. They are both left to the determination of the railroad company seeking the same, under the limitation that full compensation therefor must he made by such corporation. The legislative declaration assumes that no such corporation can afford to incur the necessary cost in this regard for a work that will not prove profitable, and hence not needed for public use, or to thus take for s'uch work property not needed therefor, especially as property rights so acquired, though fully paid for, can not be made available for any other purpose without forfeiture of all title to the same. The security against a wanton and arbitrary exercise of this power upon mere whim or caprice, and that in all cases the point and manner of taking the land selected will be that least injurious to the owner and yet suited to the public necessity, is found in the fact that such corporations will he induced by considerations of their own best interest to select, in making such crossings, that practical place and that practical mode which will be the least detrimental to the owner, because the corporation so selecting is required by law to make to the owner full compensation, and the more inj urious to the owner the place selected and the mode chosen, the greater will be the amount of necessary compensation to be paid. ”

Counsel for appellant, with seeming confidence, relies upon the decision in Central City Horse Ry. Co. v. Fort Clark Horse Ry. Co. 81 Ill. 523, and to some of the language used by the judge in argument in delivering the opinion of the court in Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. supra. In the first named case, one horse railway company was seeking to appropriate and condemn the central part of the track and fixtures, or substantially that, of a rival horse railway company, leaving the ends unaffected, and it was held this was a substantial destruction of the railway, and could not, therefore, be tolerated. But we have seen, here, there is no appropriation of, or offer to condemn, any continuous part of appellant’s main track, but the purpose is merely to take and condemn crossings of and for lateral tracks and switches,—the very thing that was held allowable in the last named case. The language in the opinion in the.last named case, to which reference is made, is this: “To -warrant the taking of the property of one party already appropriated to a public use, and placing it wholly or in part in the hands of another party for a public use, it is essential that the new use be a different use, and also that the change from the present use to the new use shall be for the benefit of the public.” This was-merely introductory to the main discussion, and, as is therein shown, not vital to the question at issue. Still, regarding it as an authoritative enunciation of a legal principle, it is just as obvious here as it was there, that the use of a railroad track for the mere purpose of crossing it is not the same as the use of it for the transportation of trains from one point to another along its line. This use takes no property from one party to give to another, but gives the one simply a limited easement in the property of the other, to be enjoyed in conjunction with the equal right of user of the other.

We see no cause to disturb the decree below. Legal damages, assessed as provided by law, will afford appellant an adequate remedy for all it will suffer by the acts of appellee. There is no ground for an injunction.

The decree is affirmed.

affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldoh

license: Public Domain

text:
    David B. Haworth v. Abijah Taylor.

      Filed at Springfield June 18, 1883

      Rehearing denied January Term, 1884.

    1. Recording daw—deed notice from time of filing for record. The statute makes tbe filing of a deed for record the same as the recording of it, as respects notice to subsequent purchaser, etc.
    2. But where a deed for land is left by the grantee with the recorder, and the fees for recording paid, with a direction not to record the same until ordered to do so, as shown by a memorandum on the entry book, and before orders to record the same another deed from the same grantor is filed and recorded, such first deed will not be held to have been filed for record, within the meaning of the statute, before the second deed, and the grantee in the latter will not be affected with constructive notice of the prior deed from the records of deeds.
    3. Notice—of title, by tenant’s possession. The possession of land by a tenant under a written lease, before the commencement of the term, is constructive notice of whatever title the landlord may have to the same at the time of a subsequent conveyance to another.
    4. A husband leased land of his wife on August 22, 1865, to a tenant for five years, the term to commence on March 1, 1866, under which lease the tenant took possession in September or October, 1865. The wife, after a decree of divorce, in the exchange of lands conveyed the premises to the husband on November 13, 1865, and on December 26, 1866, she conveyed the same to one H., whose deed was first recorded: Held, that the possession of the tenant, at the date of the last deed from the wife, was notice to the grantee therein of the husband’s title under his unrecorded deed from his former wife.
    5. Redemption—when allowed in equity after statutory time has passed. A debtor’s quarter-section of land was sold on execution for $580, a sum less than its value, and a certificate of purchase given and duly recorded. It afterwards appeared that at the same time other real estate of the debtor was sold for $5, the yearly rental value of which was over $500, and a certificate thereof made out, but not recorded until more than five years after the sale, when a sheriff’s deed was taken on it by an assignee. The return on the execution showed a satisfaction of the execution by the sale of the first named lands, which were described, there being no mention made in the return of the sale of the other tract: Held, that under the peculiar circumstances the judgment debtor had a right to a decree enabling him to redeem from such sale the land sold for $5, of which sale the record failed to afford him notice in time to redeem under the statute.
    6. Purchaser—of equitable interest, not protected. A purchaser of a certificate of purchase of land sold at a judicial sale takes only an equitable interest, subject to all the equities of the former owner or the debtor, and occupies no better position than the plaintiff in the execution, of whom he takes the assignment.
    7. Chancery jurisdiction—to set aside cloud on title held by defendant in possession. A court of equity may well entertain jurisdiction of a bill by a party out of the possession of land against one in its possession to remove a cloud upon title, where it also seeks to redeem from a sale on execution for gross irregularities and fraudulent concealment of the sale.
    8. Chancery—rents and profits recoverable under general prayer. Where a bill in chancery makes and presents a proper case for an account' of the rents and profits of land against the defendant, such account may properly be taken under the general prayer for relief.
    9. Mortgage—by absolute deed does not deprive party of right to recover rents and profits. A deed absolute on its face, given only to secure the payment of money, does not deprive the grantor of the right to recover for rents and profits of the land between the date of such deed and a reconveyance to him.
    Writ of Error to the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.
    This was a hill in chancery, brought by Abijah Taylor, against David B. Haworth, to have set aside a certain deed from MaryE. Taylor, the former wife of Taylor, to-Haworth, and also a sheriff’s sale and deed of land claimed as belonging to Taylor, or for leave to redeem from such sheriff’s sale. The court below decreed in favor of the complainant, and the defendant, Haworth, appealed to this court.
    The prominent facts appearing from the evidence are, that on September 27, 1872, Taylor commenced a suit in ejectment in the circuit court of Mason county against Haworth, to recover possession of the south half of the north-east quarter, and the north half of the south-east quarter of section 2é, township 21, range 7, in Mason county. The cause was tried at the November term, 1872, resulting in a verdict for the defendant. A new trial, for cause, was granted. The venue was afterwards changed to Tazewell county, where, at the May term, 1874, the cause was again tried by the court without a jury, the finding again being for the defendant. At the May term, 1875,* within a year, a newT trial wtis awarded to Taylor under the statute. At the September term, 1875, Taylor filed the bill in this case. Haw'orth’s claim of title in the ejectment suit having been under said deed and sheriff’s sale, the bill also asked that Haw'orfch be enjoined from further proceeding in the ejectment suit until after the final hearing.
    It appears that on the 22d day of August, I860, Mary E. Taylor, the wife of Abijah Taylor, was the owner of the lands in controversy; that they were then residing in Indianapolis, Indiana, and that on that day Taylor, the husband, leased said lands to one D. B. Johnson, by written lease, for a term of five years, beginning March 1, 1866, but Johnson went into possession in September or October, 1865, and thence continued in possession until in March, 1867, when Haworth took possession. On November 11, 1865, Mrs. Taylor obtained a divorce in Indianapolis from her husband, Abijah Taylor, and a decree for §7000 alimony. There were five children' living, the custody of whom was decreéd to Mrs. Taylor. On November 13, I860, two days after the decree of divorce, Abijah Taylor conveyed by deed to Mrs. Taylor some property in Indianapolis, being the house in which they had resided, and some land in Champaign county, Illinois, and Mrs. Taylor conveyed to Abijah Taylor the lands in controversy in this case, the conveyances being to the respective grantees for life, with remainder to their five children, and on the same day of the conveyances Mrs. Taylor receipted on the record of the court in Indianapolis the decree for alimony in full. This deed from Mary E. Taylor to Abijah Taylor was filed for record in the recorder’s office of Mason county, where the lands were situated, June 15, 1866, and tlie recording fees paid, but the deed was not spread upon the record until long afterward, and after the making and recording of the deed following. On December 26, 1866, Mrs. Taylor made a warranty deed to Haworth, for the consideration of $3000, of these same lands in controversy, which she had conveyed previously to Abijah Taylor. Haworth resided in Indiana, and the sale to him was negotiated by the attorney for Mrs. Taylor in her divorce suit, which attorney drew the deed from Mrs. Taylor to Abijah Taylor, and was brother-in-law to Haworth. On the 19fch day of November, 1866, Mrs. Taylor recovered a judgment against Abijah Taylor for $526.58, and costs, in the Mason county circuit court, upon which an execution was issued January 18, 1867, directed to the sheriff of Mason county to execute. On August 6,1867, the sheriff returned the execution, with the following indorsements thereon:
    “I hereby certify that the above described property, levied on January 26, 1867, has been sold by me this 20th day of March, 1867, in pursuance of law and due notice, for the sum of $580, amount in full of debt, interest and cost. Property • pm-chased by plaintiff.
    ^ L gw^ „
    “I hereby return the within execution and fee bill, satisfied in full by sale of property levied on, to-wit: S.W. qr. of S.W. qr. See. 24, T. 21, E. 7, for $140.00; S.E. qr. of S.W. qr. See. 24, T. 21, E. 7, for $150.00; N.E. qr. of S.W. qr. Sec. 24, T. 21, E. 7, for $145.00; S.E. qr. of N.W. qr. Sec. 24, T. 21, E. 7, for $145.00; all property purchased by plaintiff, all cost paid by plaintiff. Cost paid to clerk, and my fees retained August 6, 1867.
    Jas. L. Hastings, Sheriff.”

    A certificate of purchase upon the sale was given to the plaintiff in execution, that the tracts of land above described were purchased by her under the execution for $580, on March 20, 1867, which certificate was duly recorded. The above described tracts of land embrace none of the lands in controversy.
    There was indorsed on the execution a statement of levy of the execution on January 26, 1867, on the above described and two other forty-acre tracts of land, and also the life interest of Abijah Taylor in the lands in controversy, and of a further levy on March 8, 1867, on the leasehold interest of Taylor in some five hundred and twenty acres of other lands. At the trial of the ejectment suit in Tazewell county, in May, 1874, the court permitted an amendment of the return on the execution by adding after the list of tracts described therein as sold, “also the life interest of Abijah Taylor in the following described tracts of land, ” describing the four fortys of the land in controversy, as sold for five dollars,—two for one dollar each, and the two others for one dollar and fifty cents each.
    At the first trial in the ejectment suit in Mason county, there was produced in evidence by Haworth a certificate of purchase signed by the sheriff, bearing date March 20, 1867, stating that the lands in controversy were sold under the execution on that day to Mary E. Taylor for five dollars, and a sheriff’s deed ■ for the lands to Haworth, as assignee of this certificate of purchase, made on October 8, 1872. The certificate of purchase was then for the first time filed for record in the recorder’s office of Mason county on that day.
    In regard to this certificate of purchase the sheriff who sold the lands testified, that both the certificates of purchase were made out and dated at the same time, and that the attorney for Mrs. Taylor at the sale said he did not want the certificate of purchase of the lands in controversy unless he ordered it—he wanted to save expense : that afterward the attorney told witness he did not know as they would want the last mentioned certificate of purchase, and witness then filed it away with his old papers until he went out of office; that the next time he was spoken to about it was in 1870 or 1871, when said attorney asked him if he could make out a certificate of purchase for the lands in controversy, as he had never received it; that witness said it was not necessary to make one out, as he had one which was his if he wanted it. The attorney said he had use for it, and witness sent' to him the certificate by mail. This attorney testified in the ease that he received the collection from that attorney of Mrs. Taylor in Indiana, before spoken of, and under whose directions he acted. The uncontradicted testimony of Abijah Taylor was that he left and went to New York in June, 1806, and returned in the early part of 1872; that he first heard that this land had been sold by the sheriff after his return; that he was not back in this State or Indiana between 1866 and 1872.
    Mr. C. A. Roberts, and Mr. O. H. Wright, for the plaintiff ' in error:
    Bill to quiet title did not lie, as the defendant was in the actual possession. Harding v. Jones, 86 Ill. 313; Oakley v. Hurlbut, 100 id. 204.
    But the bill is sought to be sustained on the ground of fraud. “To make a deed fraudulent and void, or voidable, all the parties thereto must participate in the fraud. ” Prevo v. Waltes, 4 Scam. 35; Ewing v. Runkle, 20 Ill. 448; Myers v. Kinsey, 26 id. 38; Muxell v. Williamson, 35 id. 529.
    We understand the rule to'be settled in this State, that in order to impeach a conveyance for fraud both vendor and vendee must be shown to have intended to commit the fraud before the deed can be avoided. Hatch v. Jordan, 74 Ill. 414; Gridley v. Bingham, 51 id. 153.
    It is aldo a well settled rule that fraud can not be presumed, but must be proven. Story’s Eq. Jur. see. 190; Hatch v. Jordan, 74 Ill. 414.
    The entry of the deed in this case being not within either the letter or spirit of the Recording law, was no notice to a subsequent purchaser. Story’s Eq. Jur. sec. 404.

      Evidence of notice of a prior unrecorded deed should leave no reasonable doubt of notice. McVey v. McQuality, 97 Ill. 93.
    When possession is taken and held without any claim of title, the continued possession after the acquisition of title is no notice to others of such title. Emmons v. Murray, 10 N. H. 398; Fair v. Stevenot, 29 Cal. 4S6.
    The statute requiring a sheriff to file a certificate of sale for record is directory, and a failure to do this does not affect the validity of the sale. Stewart v. Croes, 5 Gilm. 442; Jackson v. Young, 5 Cow. 269.
    Between the defendant in execution and a bona ficle holder of the title, acquired' through a sheriff’s sale, all that it is necessary to show is a valid judgment, execution, levy, and deed; and all else, when these are shown, is between the parties to the execution and the officer making the sale. Wheat v. Sexton, 4 Whart. 503; Landes v. Brant, 10 How. 371; Taylor v. Thompson, 15 Pet. 399; Remington v. Linthicum, 14 id. 84; Shepherd v. Rowe, 14 Wend. 600; Kinney v. Knoebel, 47 Ill. 417.
    Many of the most respectable authorities go so far as to say, that if no levy or return is made, or notice of sale given, it would not affect a bona fide purchaser. Draper v. Bryson, 17 Mo. 70; Brooks v. Rooney, 11 Ga. 423; Smith v. Hill, 22 Barb. 655. And see, Wood v. Colvin, 5 Hill, (N. Y.) 238; Tullis v. Brawley, 3 Minn. 277; Fulsome v. Carl, 5 id. 333.
    Mr. E. A. Wallace, and Mr. W. H. Campbell, for the defendant in error:
    The return to the execution shows a full satisfaction by the sale of one hundred and sixty acres of Taylor’s land, and of a certificate of purchase duly issued therefor and recorded, but no mention is made of the land in controversy, and no certificate of purchase for it is taken out, and none filed for .record. On the contrary, the records of the county showed full satisfaction of the judgment and a. release of the present lands.
    The -tenant’s possession was notice of Taylor’s rights at the time of the making and delivery of the second deed, even though he had no title at the date of the lease.
    Although inadequacy of consideration alone is not sufficient to set aside a judicial sale, it may well be considered with other irregularities and objections, and may turn the scale. Dutcher et al. v. Leake et al. 44 Ill. 400; Dickerman v. Burgess, 20 id. 266; Thomas v. Hebenstreit, 68 id. 118.
    As to the effect, under the facts in this case, of the sheriff’s sale and deed, see the cases last cited.
    Taylor was, in law, in possession when he filed his bill. He was in possession, by his tenant, when Haworth got the same without consent, by collusion with Taylor’s tenant. Hardin v. Jones, 86 Ill. 373; Comstock v. Henneberry, 66 id. 212.
    Such a bill lies to set aside deeds obtained by fraud. Kennedy v. Northrup, 15 Ill. 149.
    But the scope of this bill is not alone to remove the clouds on title, but is also a bill to redeem. Where a court of equity once obtains jurisdiction on any ground, it will retain the same until it has adjusted all the rights of the parties, and this it will ever do under the prayer for general relief. Isaacs v. Steel, 3 Scam. 97.
   Mr. Chief Justice Sheldoh

delivered the opinion of the Court:

As respects the deed in question from Mary E. Taylor to Haworth, the first ground made for its invalidation is, that Haworth had constructive notice by record of Mrs. Taylor’s prior conveyance of the same lands to Abijah Taylor, from the fact of Taylor’s deed having been filed for record previously to the making of the deed to Haworth. The statute makes the filing of a deed for record the same as the record- • ing of it, as respects notice, and the only question upon this point is, whether Taylor’s deed was filed for record, within the meaning of the statute, before the making and recording of Haworth’s deed.

Taylor’s deed was formally filed for record June 15, 1866, and the recorder’s fees paid, but was not recorded until some time in 1872. Haworth’s deed was made December 26,1866, and recorded on January 29, 1867. The recorder gave testimony that Taylor wanted him to file the deed for record, and paid the recording fees; that Taylor said he was not particular about it being recorded right away; that he suspected his wife would make conveyance to some other person for the same property, and in case she did he wanted this deed put on record immediately, and wanted witness to keep w'ateh; that witness put the deed in the “dead-head box,” and kept watch for some time, but at last forgot all about it,—the “dead-head box” being where deeds are thrown that are not paid for, and are not to be recorded. In the entry book of the recorder’s office there appears an entry of the names of the parties to the deed, the filing of tlié deed June 15, 1866, the fee paid, and under the heading, “Bemarks, ” the entry, “Not to be recorded until ordered.” We take the recorder’s entry jn the entry book as the evidence of the terms upon which the deed was left for record, and they were, that it was not to be recorded until ordered, and in consequence thereof the deed was not recorded until after the making and recording of the deed to Haworth. The statute intends, by the filing of a deed for record, the leaving of the deed for record in due course. This deed to Taylor was not so left, but left to be recorded only when ordered, and there not having been any subsequent order for its record until after the deed to Haworth was made and recorded, we are of opinion that Taylor’s deed was not filed for record, within the meaning of the statute, before the deed to Haworth, and that the latter, at the time of taking his conveyance, was not affected with constructive notice of Taylor’s deed from the 'filing of the same for record.

Another ground for impeaching Haworth’s deed is, that at the time he took it he had constructive notice of the existence of Taylor’s previous deed, from the fact of Taylor’s possession of the land. At that time Taylor was'in the actual possession of the land by his tenant, Johnson, under a written lease made to the latter by Taylor on August 22, 1865, for a term of five years, commencing March 1, 1866. We think this was constructive notice, not only of Johnson’s interest in the land, but of Taylor’s as well. The inquiry upon which one would be put in such a case as to the occupant’s right would have discovered that Johnson was but a tenant, which would have referred the inquirer further to the landlord as to his right, as it is not to be expected that a tenant would know what was the title of his landlord. Pittman v. Gaty, 5 Gilm. 186; Franz v. Orton, 75 Ill. 100; Smith v. Heirs of Jackson, 76 id. 254; Whitaker v. Miller, 83 id. 381; 3 Barbour’s Ch. 316.

As at the date of the lease Taylor was not the owner of the land, but acquired title subsequently, on November 13, 1865, it is contended that the notice from the tenant’s occupancy was notice only of Taylor’s (the landlord’s) rights at the time of the making of the lease, and not of his rights at the time of Haworth’s deed, December 26, 1866. We do not concur in this view, although the authority cited (Emmons v. Murray, 16 N. H. 398,) lends somewhat of countenance to it. We regard the doctrine, as derived from the decisions of this court, to be, that where one purchases land of which another is at the timé in the actual, open and visible possession, such possession is constructive notice to the purchaser of all rights whatever of the possessor in the land at the time of the purchase. °

We find, then, the claim of title under Haworth’s deed to he invalid, from the fact that at the time of taking the deed Taylor was in the actual possession of the land by his tenant, which constituted notice to Haworth of Taylor’s right to the * land under his prior unrecorded deed. The reason given for the deed to Haworth is, that the sole consideration of the deed from Mrs. Taylor to Abijah Taylor was an agreement on his part to discharge the liens which w7ere upon the Indianapolis property he conveyed to Mrs. Taylor; that Taylor failed to discharge the liens, and thereupon Mrs. Taylor, to save her Indianapolis property, sold and conveyed the lands which she had previously deeded to Taylor, to Haworth, for $3000 in cash, out of which she discharged and paid off said liens. Of course this was no legal justification for making the deed to Haworth.

In regard to Haworth’s claim of title under the sheriff’s sale, there are circumstances of a remarkable character attending that sale. In the first place there had been sold under the execution, and bid off by the plaintiff therein, one hundred and sixty acres of other lands for $580, which lands may be supposed to have been worth very much more than that sum. Why was not, then, the remaining insignificant sum of five dollars added to and included in that bid and sale, instead of going on afterward and selling the debtor’s life interest in the lands in controversy for the sum of five dollars, the yearly rental value of which interest the decree in this ease finds to have been $560 ? The'two sales were made at onetime,—March 20, 1867. 'Why should there have been two certificates of purchase made out, one for the other lands and another for the lands in controversy, and the former one placed upon record and the latter suppressed from the record? Where' land is sold under execution, the statute requires the sheriff, within ten days from the sale, to file in the office of the recorder of the county in which the property is situated a certificate of the purchase, which shall be recorded by the recorder. In Thomas v. Hebenstreit, 68 Ill. 118, it w7as said the object, no doubt, of this provision of the statute was, that all persons interested in the title to the „ land might, on inspection of the record, learn, among other things, when the land was sold, when redemption expired, etc. The certificate of purchase here for the other lands was filed for record and recorded August 6, 1867, (the time of the return of the execution,) but the certificate of purchase for the lands in controversy was not filed for record until August 8, 1875,—more than five years after the sale. On August 6, 1867, the sheriff made return of the execution with his indorsement thereon that he returned the execution, and fee bill satisfied in full by sale of property levied on, and naming it as the other lands than those in controversy, and stating the amount at which each tract sold, being in the aggregate $580, and the certificate of purchase filed for record on that day stated that those tracts were sold to the plaintiff in execution for $580,—the sum which the return said satisfied the execution .and fee bill in full. Thus the public records informed Taylor that the execution had been satisfied in full by the sale of other lands than those in controversy, and misled him to understand that none of the lands in controversy had been sold. He was in ignorance of, and had no reason to suspect from the records, that these lands had been sold, but had reason therefrom to think the contrary. The practices which were adopted here were excellently well calculated to keep from Taylor knowledge of the fact of the sale of these lands under the execution. We think he is entitled to say that they did so, and especially in the case of such gross inadequacy of price; that they were the cause of the failure to redeem from the sale within the time given for that purpose by the statute, and therefore that in equity he should bé permitted to redeem now, after the expiration of the statutory period for redemption. As to gross inadequacy of price lending aggravation to any irregularities in a sale, see Dutcher v. Leake, 44 Ill. 400; Thomas v. Hebenstreit, 68 id. 118. The bill asks, and makes offer, to redeem, and the decree allows redemption, in which we find no error.

A point is made as to Haworth being an innocent purchaser. He purchased only an equitable interest in buying the certificate of purchase, and took subject to the outstanding equities of Taylor, and occupies no better position than that of the plaintiff in the execution.

Objection is made to the jurisdiction to entertain the bill, because Haworth was in possession at the time of the filing of the bill, and that under decisions of this court a bill to remove a cloud upon title will not lie where the defendant is in possession. We think it enough to say that the bill being, in one of its aspects, to redeem, the bill in such respect ivas well brought, irrespective of possession by the defendant.

As a bill to redeem, objection is taken to it on account of the delay in the filing of the bill. Under all the circumstances of the case we do not consider that there can be any just imputation of laches to the complainant in not sooner filing the bill.

The decree adjudged a recovery against the defendant of $4707 for the balance of the rents and profits received by him from the land up to April 30, 1882. It is objected to this, that there was no prayer for an account in the bill, and that the remedy for the recovery of rents and profits should have been sought in a court of law. . The bill made a proper case for an account, and w’e are of opinion it might properly be taken under the general prayer for relief, and that in order to the adjustment of all the rights of the parties with respect to the subject matter of the suit, it was proper to take the account in this case. It appears that on March 27, 1874, Taylor made a quitclaim deed of his interest in the land to Busan Welch, and that on September 23, 1881, she reeonveyed to Taylor, and it is claimed that during the time intermediate those dates Taylor is not entitled to recover for rents and profits. The evidence shows this deed from Taylor was but a mortgage, it being a mere security for a debt, and as mortgagor, Taylor was entitled to the rents and profits of the land, the condition of the mortgage being unbroken, and no claim of rents by the mortgagee.

It is claimed the amount allowed Taylor is too great. The value of the rents and profits may have been estimated too high, but whatever error there may have been in that respect was more than counterbalanced by the allowance of a deduction of the amount of the payments made by Mrs. Taylor in the discharge of liens upon the Indianapolis property, said liens being the ones hereinbefore mentioned in stating the reason given for Mrs. Taylor’s making the deed she did to Haworth. The propriety of the allowance of this deduction, at least under the pleadings in the case, does not satisfactorily appear to us. "We are inclined to think that because of this allowance any cause of complaint in respect of the -amount decreed to Taylor is rather with .Taylor than the defendant.

The decree of the circuit court must be affirmed.

Decree affirmed.

Walkeb, and Scott, -JJ.: We hold that the Statute of Limitations barred all rents and profits accrued more than five years before the date of filing the bill. See Harding v. Larkin, 41 111. 413, which announces this rule.


author:
      Mr. Justice Mulkey
      Sheldon, Ch. J., and Scott and Craig, JJ.,

text:
    The Chicago and Alton Railroad Company v. Caroline May, Admx.

      Filed at Springfield June 14, 1883

      Rehearing denied January Term, 1884.

    1. Negligence—causing death—•evidence as to support of family, proper. In an action by an administrator against a railway corporation, to recover damages for negligently and wrongfully causing tlie death of the intestate, evidence that the deceased in his lifetime supported the plaintiff (his widow) and her children, is not only admissible, but highly proper, if not indispensably necessary.

      2. Ebbok—m some instructions, when, as a whole, are most favorable to the objector. Where the instructions, taken as a series, taking those on both sides, state the law of the case more favorably to the defendant than the plaintiff, and more favorably to the defendant than the law warrants, a reversal will not be had on the appeal of the defendant, even if one or more of the plaintiff’s instructions, considered alone, are probably subject to criticism.
    3. Masteb and sekyant—who is a fellow-servant of a common master. One servant of a corporation, to whom is delegated the power of hiring and discharging other servants, and in whom the corporation vests the sole control and direction of such other servants in and about the work which they may be ordinarily required to do, is, as to such servants whom he so hires, discharges and controls, the representative of the master when exercising such power or control, and is not a fellow-servant, nor is he in the same line of employment as the servants he so controls.

      4. Same—liability for negligence of one servant injuring another. The mere fact that one of a number of servants who are in the habit of working together in the same line of employment for a common master, has power to control and direct the actions of the others with respect to such employment, will not of itself render the master liable for the negligence of the governing servant, resulting in an injury to one of the others, without regard to other circumstances. Each case must depend upon its own circumstances.
    5. If the negligence complained of consists of some act done or omitted by the servant having such authority, which relates to his duty as a co-laborer with those under his control, and which might as readily happen with one of them having no such authority, the common master will not be liable.
    6. But where the negligent act arises out of and is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable. In such case the governing servant is not the fellow-servant of those under his charge with respect to the exercise of such powers.
    7. Same—when command of servant is that of his master. Where a corporation confers authority upon one of its employees to take charge and control of a gang of men in carrying on some particular branch of its business, such employee, in governing and directing the movements of the men •under his charge with respect to that branch of the business, is the direct representative of the corporation itself, and all commands given by him within the scope of his authority are in law the commands of the corporation; and the fact that he may have an immediate superior between him and the company makes no difference in this respect.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Eeeyes, Judge, presiding.

      Messrs. Williams, Buhe & Capen, for the appellant:
    The admission of evidence tending to show the poverty of the deceased was error, the only question in this regard being what is the actual pecuniary damage resulting to the widow and next of kin. • Chicago and Northwestern R. R. Co. v. Moranda, 93 Ill. 302; Chicago v. O’Brennan, 65 id. 160; Pittsburg, Ft. Wayne and Chicago Ry. Co. v. Powers, 74 id. 341.
    The common master is not responsible for an injury to one employee caused by the negligence of a fellow-employee in the same line of employment. Chicago and Alton R. R. Co. v. Murphy, 53 Ill. 336; Valtez v. Ohio and Mississippi R. R. Co. 85 id. 500; Illinois Central R. R. Co. v. Keen, 72 id. 512; Homier v. Illinois Central R. R. Co. 15 id. 550; Illinois Central R. R. Co. v. Cox, 21 id. 20 ; Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 id. 401; Chicago and Alton R. R. Co. v. Keefe, 47 id. 108.
    Under the undisputed facts of this ease, Erieke and the deceased were fellow-servants; the former was, in no sense, the alter ego of the master, so as to render it liable for his mere personal negligence. Hart v. Peters, 14 Wis. 542; State v. Malster, 26 Md. 176; Crispin v. Babbitt, 81 N. Y. 516; Howells v. Landore Steel Co. 11 Moak, 153; Peterson v. W. C. and M. Co. 50 Iowa, 673; Corcoran v. Holbrook, 59 N. Y. 517; Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; Delaware and Hudson Canal Co. v. Carroll, 89 id. 374; McAndrews v. Burns, 39 N. J. 117; Beanlieu v. Portland Co. 48 Maine, 291; Feltham v. England, L. R. 2 Q. B. 33; Blake v. M. C. R. R. Co. 70 Maine, 60; K. P. Ry. Co. v. Salmon, 11 Kan. 83; Murphy v. Smith, 115 E. C. L. 361; Hard, Admr. v. V. and C. R. R. Co. 32 Vt. 472; Wigmore v. Jay, 5 Exch. 354; Gallagher v. Piper, 111 E. C. L. 668; William v. Carlter, 52 Mo. 372; Albro v. Agawam Canal Co. 6 Cush. 75; Lawler v. A. R. R. Co. 62 Maine, 463; Marshall v. Schrieker, 63 Mo. 308; O’Connell v. Baltimore and Ohio R. R. Co. 20 Md. 21 ; Schauch v. N. R. R. Co. 25 id. 462; O’Connor
      y. Roberts, 120 Mass. 227; Zeigler v. Day, 123 id. 152; Wilson v. Merry, L. R. 1 H. L. 321.
    No distinction as to the liability of the common master arises from the different grades or ranks of the servants employed. See all the above eases, and, also, Faulkner v. E. R. R. Co. 49 Barb. 324; Weger v. Pennsylvania R. R. Co. 55 Pa. 460; Sherman v. R. and S. R. R. Co. 17 N. Y. 153 ; Wright v. New York Central R. R. Co. 25 id. 562; Searle v. Lindsay, 103 E. C. L. 429; Collier v. Steinhart, 51 Cal. 116; Summersell v. Fish, 117 Mass. 312; Holdens. Fitchburg R. R. Co. 129 id. 268; Cooley on Torts, 544, 561-563.
    It would seem that the law could go no further than to hold the corporation liable for the acts and negligence of the officer exercising the powers and authority of general superintendent. Cooley on Torts, 562; Wharton on Negligence, secs. 229, 240, 241; Moak’s Underhill on Torts, 50.
    When the facts are not controverted, the question as to what is a fellow-servant is a pure question of law. This is elementary. Crispin v. Babbitt, 81 N. Y. 516; Marshall v. Schricker, 63 Mo. 308; Albro v. Agawam Canal Co. 6 Cush. 75; Farwell v. B. and W. R. R. Co. 4 Metc. 49.
    Messrs. Fifer & Phillips, and Mr. War. E-. Hughes, for the appellee:
    The question what were Frieke’s powers, and how far he stood in the company’s place and represented it to the men, is one of fact only, that is conclusively settled by the verdict. Mullen v. Steamship Co. 78 Pa. St. 25; Lehigh Valley Coal Co. v. Jones, 86 id. 432; Delaware and Hudson Canal Co. v. Carroll, 89 id. 374; Toledo, Wabash and Western Ry. Co. v. Moore, 77 Ill. 217; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 id. 284.
    There was no error in proving who May’s family were, and that in his lifetime he supported them. Chicago and Northwestern R. R. Co. v. Moranda, 93 Ill. 302.

      When the master gives over the whole charge of his business to another, the person to whom such power is delegated stands in the master’s place to all subordinates, and his negligence is chargeable to the master. Wood’s Law of Master and Servant, p. 764, sec. 390.
    The master is liable for an injury to a servant resulting from the orders of a superintendent or other employee or agent having the supervision of the work, and power to employ, direct and discharge the laborers. Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 Ill. 401; Gormly v. Vulcan Iron Works, 61 Mo. 492.
    Negligence by a representative of the master, arising in the form of improper orders and directions given about the work and in the control of operatives, will render the master liable. Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 Ill. 401; Chicago, Burlington and Quincy R. R. Co. v. McLallen, 84 id. 116; Dowling v. Allen, 74 Mo. 13; Railroad Co. v. Fort, 17 Wall. 553;. Chicago Ry. Co. v. Bayfield, 37 Mich. 205 ; Frosty. Union Pacific Ry. Co. 11 Am. L. R. 101; Mann v. Oriental Print Works, 11 R. I. 153; Keegan v. Cavanaugh, 62 Mo. 230; Borea Stone Co. v. Krafts, 31 Ohio St. 287; Murphy v. Smith, 115 E. C. L. 361; Crispin v. Babbitt, 81 N. Y. 516; Thompson on Negligence, p. 975, sec. 5; Mullen v. Steamship Co. 78 Pa. St. 25; Corcoran v. Holbrook, 59 N. Y. 517; Laning v. New York Central R. R. Co. 49 id. 521; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; L. and N. R. R. Co. v. Collins, 2 Duvall, 114; Malone v. Hathaway, 64 N. Y. 5; Shearman & Redfield on Negligence, (3d ed.) secs. 102, 103; Wharton on Negligence, sec. 229; 2 Thompson on Negligence, pp. 1028, 1031, secs. 34, 35; Cooley on Torts, 562.
    The question -whether servants are in the same line of employment is properly left to the jury. Toledo, Wabash and Western Ry. Co. v. Moore, 77 Ill. 217; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 id. 284.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This action was brought in the McLean circuit court, by Caroline May, the appellee, as administratrix of her late husband, Christian May, against the Chicago and Alton Railroad Company, for negligently and wrongfully causing his death. There was a trial upon the merits in the circuit court, resulting in a judgment for the plaintiff for $3250, which, on appeal to the Appellate Court for the Third District, was affirmed, and the company brings the case here for review.

In view of the legal questions presented by the record and discussed by counsel, we deem it proper to state the circumstances immediately connected with the death of the deceased with some particularity. They are in substance as follows: The deceased, at the time of his death, was one of a number of hands in the employment of the railroad company in a lumber yard connected with its work shops, at Bloomington, under the immediate control and charge of one Frederick Fricke, who was also in the employment of the company, as foreman of the lumber yard. Immediately before the death of May, we find Fricke, together with a squad of these hands, including the deceased, engaged in removing a lot of lumber from the yard to the car shops. The lumber in question consisted of a pile of heavy oak plank, some sixteen feet long. For the purpose of removal it had already been placed upon a small, light car, some six or eight feet long, called a “rubble car, which was used in handling lumber in the yard and in removing it to the shops. The lumber, as well as the ear, was at the time sheeted with ice and snow. The car thus loaded stood on the track north of the shops, and immediately south of it, on the same track, stood a large box car which had to be got out of the way before the lumber could be run down into the shops. To get this car out of the way it was necessary that both cars should be pushed some distance north, beyond a switch, so the box car could be switched off to one side, and by that means let the rubble ear, so loaded, pass back south into the shops. To accomplish this object Fricke ordered the men to push the box ear against the nibble car, which shoved the lumber so far over on the north end of it that the small car, thus loaded, would have tipped up and thrown the lumber out, but for the fact the bumper of- the box car held it down. The two ears were pushed in this manner till they passed the switch, when Fricke ordered the men to leave the small ear where it was, and push the large one south, out of the way. Two of the men, Grenz and Sclimekel, went to the north end of the planks, as they lay projected on the rubble car, and held them up, while the other hands commenced pushing the large car, as directed by Fricke, and as soon as the cars were sufficiently separated, some of the men, including May, went in between the two ears, to enable them to push with more effect. While matters were in this situation, Fricke called Grenz and Schmekel to also come and help push the large car, whereupon they -told him the plank would fall and some one would get hurt. Notwithstanding this admonition and warning, Fricke repeated his order with emphasis, saying, “Let the lumber go to the devil.” The order was obeyed, and instantly the north end of the lumber fell to the ground, tilting up the south'end of the little car and driving it forward with great force against the end of the car being thus shoved. The action of the car was so instantaneous the parties pushing at the end of the box car had no time to escape, and the deceased was caught between the bumper of the large car and the rubble ear, thereby inflicting injuries from which he subsequently died.

The material portion of the declaration, wherein the cause of action is formally set forth, charges that the deceased, “on December 24, 1880, was employed by defendant as a laborer in the lumber yard connected with its machine shops, at Bloomington, under the control and direction of one Frederick Frieke, foreman of said lumber yard, who had full control and authority over said intestate and his fellow-servants employed therein, with full power to hire and discharge them, and that said Frieke stood to the said Christian May and his fellow-servants in the lumber yard as the representative of the defendant, which was their common master; and, while so employed, said May was, by the order and direction of Frieke, pushing a certain car of defendant upon a track in said yard, using all due care and diligence for his own safety, and that the said Frieke, by his gross negligence in managing and directing the fellow-servants of said May, caused a certain other car or truck to be thrown with great violence against him, the said May, whereby he was killed, ” etc.

Since no question is made as to the sufficiency of the declaration, and all the facts therein charged are, by the affirmance of the judgment in the Appellate Court, conclusively settled adversely to the appellant, the present controversy is brought within very narrow limits. The questions of law presented for determination arise upon the instructions, and the rulings of the court upon questions of evidence. As to the latter, they may be disposed of in a few words.

Upon the trial appellee was permitted to prove, against the objections of appellant, that the deceased in' his lifetime supported appellee and her children. In a case of this character, where the action is founded solely upon the hypothesis that the plaintiff, by reason of the husband’s death, has been injured in her means of support, such evidence is not only admissible, but highly proper,—indeed, almost indispensable,—and there is nothing in the cases referred to sustaining a contrary view. We find this objection in appellant’s brief in the Appellate Court, only. It seems to be abandoned by counsel in their brief in this court, and therefore nothing further need be said in reference to it.

Exceptions have been taken and objections urged to most all of appellee’s instructions, but we do not think any of them are well founded. One or two of them, standing alone, would probably be subject to criticism, but when taken as part of a series, including those given for the defendant as well as those for the plaintiff, we are unable to discover any substantial objection to them. Indeed, when thus considered, they aré much more favorable to the appellant than to the- appellee, and in view of the special circumstances of the case, more so, we think, than the law warranted. The instruction claimed •to be most objectionable, and the only one specially noticed in appellant’s brief in this court, is as follows:

“2. That one servant of a corporation to whom the corporation delegates the power of hiring and of discharging other servants, and in whom the corporation vests the sole control and direction of such other servants in and about the work which they may be ordinarily required to do, is, as to such servants whom he so hires, discharges and controls, the representative of the master, and is not a fellow-servant, and is not, under such state of facts, if proven by the evidence, in the same line of employment as the servants whom he so controls.”

The consideration of this instruction will necessarily lead us to inquire when the master will-, and when he will not, be held liable for the negligence of one servant resulting in injury to another, and also to determine, as near as may be, the controlling principle governing cases of this character.

Counsel for appellant, after referring to that part of the opinion in the Moranda, case, 93 Ill. 302, wherein is discussed the reasons which led to the adoption of the rule which exempts the common master from liability on account of an injury caused by the negligence of a fellow-servant 'in the same line of employment, proceed to say of this instruction: “It would hardly seem necessary to argue that this instruction places the question of who are fellow-servants on an entirely different <feasis,—that is, although, as in this case, they were in the strictest sense consociates, yet if one had the right to employ and discharge the other, and direct the work, they are not fellow-servants. This may all be true, and yet public policy requires one to watch the other, and notify the superior of incapacity or carelessness in a dangerous employment, as much as if they were all employed and directed by a common superior. ” It is to be remarked, in the first place, the office or object of the instruction was not to state to the jury the reasons upon which the rule in question is founded, but rather to state a hypothetical case in which the rule itself would not be applied, and if this fact is kept in view we see no ground for misapprehension, nor do we see any real, or even apparent, conflict between it and what is said in the Moronda case. The instruction does not, either in terms or by implication, tell the jury that a servant who has power to hire and discharge other servants with whom he is in the habit of working or rendering service to a common master, can not, by reason thereof, be a fellow-servant within the meaning of the rule which exempts the master from liability. But admitting the instruction, when considered alone, is ambiguous in this respect, the jury could not possibly have been misled by it, for the court distinctly laid down the very reverse of this proposition in the-following instructions given for the defendant:

“3. The court instructs the jury, for the defendant, that the common employer is not liable for any injury that may accrue to one of a set of fellow-servants of that common employer engaged in the same line of employment, by reason of the negligence of a fellow-servant in the same line of employment, and the fact that the fellow-servants are employed by different agents of the common employer, or that one has general supervision of the work of the whole, and a right to direct its execution, does not prevent them from being fellow-servants of the common employer in the same line of employment. ”
“7. The court instructs the jury, for the defendant, that the mere fact that of a gang of workmen one is the foreman, does not prevent their all being servants in the same line of employment, or render the employer liable for an injury resulting from the negligence of such superintendent or superior.”

The instruction complained of, when fairly construed, in effect tells the jury that a servant having the.exclusive control over other servants under a common master, including the power of hiring and discharging, is, in the exercise of these powers, the representative of the master, and not a mere fellow-servant, and this, we understand, is the true rule on the subject. It is true the instruction does not state this in so many words, but when construed in the light of the facts and the two instructions above mentioned given for the defendant, what we have stated is the fair import of it. More or less is to be inferred in all writings, and instructions are no exceptions to the rule. Any attempt to say, in express terms, every possible conclusion or inference intended to be drawn from a writing, could not, in the nature of things, be done, for the attempted explanations would also have to be explained, and so on indefinitely. Moreover, such a course, instead of leading to perspicuity and certainty, would most generally result in confusion and doubt. Now, if, after the word “master, ” in the fourth line from the bottom of the instruction, the words, “when exercising such power or control, ” were inserted, it would relieve the instruction from all ambiguity whatever, and it would be entirely unobjectionable, even if standing alone. But we think the omitted words are fairly implied, and hence there is no substantial objection to the instruction.

The true rule on the subject, as we understand it, is this: The mere fact that one of a number of servants who are in the habit of working together in- the same line of employment, for a common master, has power, to control and direct the actions of the others with respect to such employment, will not of itself render the master liable for the negligence of the governing servant, resulting in an injury to one of the others, without regard to other circumstances. On the other hand, the mere fact that the servant exercising such authority, sometimes, or generally, labors with the others as a common hand, will not of itself exonerate the master from liability for the former’s negligence in the exercise of his authority over the others. Every case, in this respect, must depend upon its own circumstances. If the negligence complained of consists of some act done or omitted by one having such authority, which relates to his duties as a co-laborer with those under his control, and which might just as readily have happened with one of them having no such authority, the common master will not be liable. Eor instance, if the section boss of a railway company, while working with his squad of men on the company’s road, should negligently strike or otherwise injure one of them, causing his death, the company would not be, liable; but when the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable. In such case he is not the fellow-servant of those under his charge, with respect to the exercise of such power, for no one but himself, in the case supposed, is clothed with authority to command the others.

When a railway company confers authority upon one of its employees to take charge and control of a gang of men in carrying on some particular branch of its business, such employee, in governing and directing the movements of the men under his charge with respect to that branch of its business, is the direct representative-of the company itself, and all commands given by him within the scope of his authority are, in law, the commands of the company, and the fact that he may have an immediate- superior standing between him and- the company makes no difference in this respect. In exercising this power he does not stand upon the same plane with those under his control. His position is one of superiority. When he gives an order within the scope of his authority, if not manifestly unreasonable, those under his charge are bound to obey, at the peril of losing their situations, and such commands are, in contemplation of law, the commands of the company, and hence it is held responsible for the consequences. These views are in strict accord with all that is said in the Mor ancla case, to which such frequent references have been made. It is believed, moreover, that the test here suggested, and recognized in many of the cases, will reconcile many of the apparently conflicting decisions of the courts of this country which have declined to follow the .English rule on this subject, and the principle, though not formally announced heretofore, is the logical result of our own adjudications.

Testing the present ease by the rule here announced, the company is clearly liable, for it is manifest that May’s death was the direct result of an improper and inconsiderate order that no one exercising ordinary skill or prudence would have given. It was not a mere careless act done by him in performing his work as a co-laborer or fellow-servant, but it was a negligent and unskillful exercise of his power and authority over the' men in his charge, for which, as we have already seen, the company must be held to answer. In support of the general views here expressed we cite the following authorities: Buckner v. New York Central Ry. Co. 2 Lansing, 506, (49 N. Y. 672); Chicago, Burlington ancl Quincy R. R. Co. v. McLallen, 84 Ill. 116; Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 id. 401; Mullen v. P. and S. M. Steamship Co. 78 Pa. St. 25; Gormly v. Vulcan Iron Works, 61 Mo. 492.

The judgment of the Appellate Court, we think, for the reasons stated, is right, and it is therefore affirmed.

Judgment affirmed.

Sheldon, Ch. J., and Scott and Craig, JJ.,

dissenting:

We are unable to concur in the opinion in this case. The circuit court, at the instance of the plaintiff, gave the following instruction to the jury:

“That one servant of a corporation, to whom the corporation delegates the power of hiring and of discharging other servants, and in whom the corporation vests the sole control and direction of such other servants in and about the work which they may be ordinarily required to do, is, as to such servants w'hom he so hires, discharges and controls, the representative of the master, and is not a fellow-servant, and is not, under such state of facts, if proven by the evidence, in the same line of employment as the servants whom he so controls. ”

It is the well settled general doctrine that a person entering the service of another takes upon himself, in consideration of the compensation to be paid him, the ordinary risks of the employment, including the negligence of his fellow-laborers. (Illinois Central R. R. Co. v. Cox, 21 Ill. 20.) The mere fact that there was delegated to Fricke, the foreman here, the power of hiring and discharging other servants, and that there was vested in him the sole control and direction of the other servants, did not, in the respect of his alleged act of negligence in this case, change his character from that of a co-servant to that of a representative of the company. The general rule is, that a foreman, or one who superintends or controls the operations of the servants in a particular business, is a fellow-servant as much as the other servants whose work he superintends; that if the master places a servant in a position of authority over other servants, and makes the inferior servants subject to the direction and control of the superior, he is not chargeable for the consequences of directions given by such superior servant within the scope of their employment. Feltham v. England, L. R. 2 Q. B. 32; Wilson v. Merry, L. R. 1 H. L. 326; Howells v. Landore Steel Co. L. R. 10 Q. B. 62, (11 Moak, 153); Lawler v. A. R. R. Co. 62 Maine, 463; Albro v. Agawam Canal Co. 6 Cush. 75; O'Conner v. Roberts, 120 Mass. 227; Weger v. Pennsylvania R. R. Co. 55 Pa. 460; Davis v. Detroit R. R. Co. 20 Mich. 105.

We believe the true rule now prevailing, as established by the great weight of authority, and the only one to be sustained on principle, is, that the master can not be held chargeable for any act of negligence on the part of the superior servant, except in so far as such servant is charged with the performance of the master’s duty to his servants, such as, the supplying of safe machinery, the selection of competent servants, etc.; and to the extent of the discharge of those duties which the master owes to his servants, by the superior servant, the latter stands in the place of the master, but as to all other matters he is a mere co-servant. Crispin v. Babbitt, 81 N. Y. 516; Flike v. B. and A. R. R. Co. 53 id. 549; Wilson v. Merry, supra; Davis v. Central Vermont R. R. Co. 55 Vt. 84; State, use of Hamelin v. Malster et al. 57 Md. 287; Wood on Master and Servant, sec. 438, et seq.

In the application of the rule to the case in hand, there was one of the company’s duties to its servants which was devolved upon Fricke, viz., the hiring and discharging of servants. In that respect Fricke was the representative of the company, and for any negligence of his in the performance of that duty,—in not employing competent or not discharging incompetent servants,—the company would have been responsible. So if Fricke, in the exercise of'his power of control and direction of seryants, had directed the deceased to do an act not within the scope of his employment which exposed him to hazards and dangers that were not contemplated in the contract of service, the company might have been liable for injury to the deceased therefrom, there being a duty on the part of the master not to expose the servant to extraordinary risks not incident to the. service in which he was employed. Such was Lalor’s case, 52 Ill. 401, cited by appellee’s counsel. And the case of McLallen, 84 Ill. 116, cited, was one of injury to a conductor from the giving of a negligent order as to the running of the train, by the assistant superintendent,- he being a general officer, “to whose orders the trains were all subject.” His act was one in the general management of the business of the corporation, and in the discharge of a duty pertaining to the principal.

We see nothing in these cases to militate against the views we express. The only matters in which Fricke was charged with the performance of the company’s duties to its servants, and wherein he was the representative of the company, were the two we have mentioned above. The negligence of Fricke which is here complained of, occurred in the performance of th^ lowest detail of common laborer’s work,—pushing a carload of lumber into the car shops. It was not a duty which the company owed to its servants to give any directions about the doing of that piece of work. In the doing of it, Fricke was working together with the others, as a hand with them, as he did in all the work of the yard. He was strictly, we think, but a fellow-laborer with them, and did not act as the representative of the corporation in the doing of that work, or giving directions in the doing of it. Suppose that instead of the other two men he had himself been holding up the lumber on the rubble car, and he had let it drop, could it be said that that was not the negligence of a fellow-servant ?—• that it was not one of the ordinary risks of the work which the other workmen had assumed? We think not, but that it was strictly such. We do not see that Fricke’s directing the two men to let go the lumber could found any more of a liability than his doing of the act himself.

There would have been more of plausibility in this claim of liability if the deceased had been injured in the doing of an act which Fricke had ordered him to do. But not even such was the case. -May, the deceased, was not engaged at the rubble car, on which was the lumber, at all; he was at the other car—the stock car. The two men, Grenz and Schmekel, were alone holding up the lumber on the rubble car, and it was they alone whom Fricke directed to let go of the lumber, and on their doing so it fell down,- and forced the rubble car forward till it struck and injured the deceased, who 'was standing in front of the bumper of the stock car.

We think this instruction was erroneous, and that because of it the judgment should be reversed.


author: Mr. Chief Justice Sheldon

text:
    Wabash, St. Louis and Pacific Railway Company v. Jacob Zeigler.

      Filed at Springfield Oct. 1, 1883

      Rehearing denied January Term, 1884.

      Railroad—liability for double value of fence built by owner—statute construed. To entitle an owner of land over which a railroad is operated,' to recover of the railroad company double the value of any fence built by him upon its neglect to do so on proper notice, the statute must be strictly followed, and the fence must be such as the statute requires, and be built in the mode the statute contemplates. The fence must be built on the sides of the railroad. If built two feet inside of the right of way this penalty can not be recovered. It is not held, however, that the fence may not be built entirely on the company’s right of way, but in doing so it must be on the sides of the road.
    ’ Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the County Court of DeWitt county; the Hon. George K. Ingham, Judge, presiding.
    Messrs. Moore & Warner, for the appellant.
    Mr. R. A. Lemon, and Mr. F. M. Burroughs, for the appellee.
   Mr. Chief Justice Sheldon

delivered -the opinion of the Court:

This was an action brought by the adjoining owner, against the railroad company, under the statute, (Rev. Stat. 1874, p. 808, see. 41,) to recover double the value of a fence built by such owner to fence his land from the railroad. There was judgment for the plaintiff for such double value, which was affirmed by the Appellate Court for the Third District, and on the proper certificate being made, the defendant appealed to this' court.

The statute requires that every railroad corporation shall, within six months after its line is open for use, erect fences “on both sides of its road,” and provides that on neglect to do so, the owner of the adjoining land, after having given thirty days’ notice in writing to the railroad corporation to build the fence, and its refusal to build, shall have the right to enter upon the land and track pf the railroad company, and may build such fence, and shall be entitled to double the value thereof from the corporation, with interest at one per cent per month.

The sole point presented for consideration is upon the place of building the fence. The Appellate Court certifies “that the proof in this case shows that the fence and gates in question, as built by the appellee, were intentionally built by him two feet inside the right of way of the appellant on each side of its railroad track. If this proof sustains the declaration, under the statute the finding of the court below is sustained by the evidence. If, on the contrary, the law requires the fence to be built on the line of the right of way, then the finding iá not sustained. This court held, in deciding this case, that the law does not require the fence to -be built upon the line, but may be built entirely on the railroad company’s right of way, and the person building it recover under the statute under which this suit was brought. ” The railroad was entirely on appellee’s land, and he built both lines of fence. The fence was a post and board fence. The declaration avers the fence was built “on both sides of said railroad. ”

To recover upon this penal liability of double the value of the fence, the statute should be strictly followed in the building of the fence. The fence should, be such an one as the statute requires and authorizes, built in the mode the statute contemplates. Such a fence is one on the sides of the railroad. The fence in question was not built on the side of the railroad, but was intentionally built two feet inside the right of way,—two feet from the side of the road,-—thus depriving appellant of four feet of its right of way, and appropriating the same to appellee’s use by fencing it in with his own land. If appellee intentionally and of set purpose may do this, we do not see why he might not take iñ a yet greater number of feet, and where would be the limit short of the railroad’s actual track ? The railroad is entitled to the unobstructed use of its entire right of way, except so much as may be necessary for a fence. This same statute makes it the duty of all railroad corporations to keep their rights of way clear from all dead grass, dry weeds, or other dangerous, combustible material, etc. It should not be permitted to appellee, by fencing off a portion of the right of way, to make the performance of this duty more difficult and expensive to the railroad company. We do not hold that the fence might not be built entirely on the railroad company’s right of way, but that in doing so it should have been built on the side of the road, and not, as it was in this ease, two feet'inside the right of way. To entitle to a recovery under this statute the fence must be built where the statute requires it should be—on the side of the railroad. It was not so built here.

The judgment must be reversed and the cause remanded.

Judgment reversed.