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fencing was necessarily and always involved | for the year 1870, wherein it is stated that in all appropriation inquiries prior to the en- the subscriptions were made in conformity actment of the statute requiring railroad with the statute, and the name of the comcompanies to fence, it cannot be conclusively pany changed to that of the Marietta & Cinpresumed to have been involved in this one. cinnati Railroad Company. The court is No attempt has been made to show this, and thus asked to take judicial notice, not only we think it cannot be shown. In the con- of the acts referred to, but of the statement struction of railroads there are many places contained in the report. If this can be done, where fences are wholly impracticable. The contour of the land may be such as to make fencing impossible, or the existence of permanent buildings just on the line may render a fence wholly unnecessary. This seems too obvious to need elaboration. It follows, as we think, that the record of the condemnation proceedings did not raise a conclusive whether the act of March 21, 1851, can be so presumption that the expense of maintaining a fence was, or might have been, taken into account by the jury in making up the verdict, and that the trial court committed no error in refusing the instruction asked.

the claim is sustained; if it cannot, the claim fails, and there is nothing before the court to show when, or under what law, the Marietta & Cincinnati Railroad Company was organized. There is apparent conflict of decision in this state as to what laws will be judicially noticed, and there is at least doubt

noticed. The holding in Brown v. State, 11 Ohio, 277, is authority to the effect that such a law can be noticed, while the decision in Railway Co. v. Moore, 33 Ohio St. 384, is to the contrary. We will not here attempt to Another question arises in the case: It reconcile these cases. But it may be said of was vital to the company's defense to show the earlier act, that, although it is in the that neither the act of May 1, 1852, nor the form of a special law, and classed among the act of March 25, 1859, applied to the Marietta local laws in the yearly volume, yet it is rath& Cincinnati Railroad Company. Every rail-er of a public than private nature, inasmuch road organized under the former act came as it contains grants of sovereignty, interestwithin its requirement as to fencing, and pre- ing as well the community whose rights are sumably all railroad companies are brought thereby contracted, as the corporators whose within the provisions of the latter act. The rights are thereby enlarged. And assuming, burden, therefore, was on the company to without holding, that both acts referred to show that it was exempt from the duty im- may be judicially noticed, there still remains posed by those acts. It was admitted at the the question whether the contents of the comtrial that the defendant is the successor of missioners' report can be so treated. There the Marietta & Cincinnati Railroad Company, are certain executive documents, such as offias reorganized, and that the last-named com- cial proclamations, treaties with foreign powpany was the successor of the Marietta & ers, and other public documents issued by Cincinnati Railroad Company, original con- the executive or legislature, which courts structor of the railroad, and that the Cincin- will notice judicially, but an examination of nati, Washington & Baltimore Railroad an extended line of authorities fails to disCompany, defendant, is the owner of the close a single holding to the effect that docurights of way and franchises of the Marietta ments similar to that of the commissioners' & Cincinnati Railroad Company. It is now report may be classed among those of which claimed in argument that the Marietta & judicial notice will be taken. Nor can the Cincinnati Railroad Company was originally claim be sustained upon reason. In general, incorporated as the Belpre & Cincinnati Rail- courts will judicially notice only such facts, road Company by special charter, March 8, or conclusions from facts, as are not the 1845, and that by an act passed March 21, proper objects of evidence. Such are styled 1851, to amend the incorporation act of the "non-evidential." 1 Whart. Ev. § 277. It Franklin & Ohio River Railroad Company, cannot be said that the court, from its preand for other purposes, it was provided that, sumptive knowledge of the law or of public upon certain subscriptions therein authorized events, would have within judicial cognizance being made, the name of the Belpre & Cincin- the statement of the commissioner of railnati Railroad Company should thereupon be roads as to an antecedent fact. The question changed to the Marietta & Cincinnati Rail- whether or not the statute of March 21, 1851, road Company; that the subscriptions were had been complied with, could have been put paid, and the corporate name thereupon be- in issue in the pleadings. It would then came changed at once to the Marietta & Cin- have been a proper subject of evidence, and cinnati Railroad Company, and it always could have been established or disproved by acted and was known by that name. It is any witness having knowledge of the fact. not insisted that there is any allegation, This could not be true as to matters which proof, or admission of this claim. Reference the court may judicially notice. Whether or is made to the several acts, which show the incorporation of the roads as stated. To sustain the statement that the subscriptions were paid, and hence that the corporate name became changed at once to the Marietta & Cincinnati Railroad Company, counsel cite the report of the commissioner of railroads

not this report would have been competent evidence, under proper pleadings, of the statement referred to, we need not inquire. Under the authority of some adjudicated cases, it would appear to be competent, while others (notably Gordon v. Bucknell, 38 Iowa, 438) would seem to hold the contrary. In

the Iowa case the court held that the report | tenth instruction as follows: "(10) It is for of the register of the state land-office was not competent to show that certain lands in controversy had been patented to a railroad company. However, it is not with a question of evidence we are dealing, but with a question of what courts will notice without evidence.

We are of opinion that the report cannot be resorted to by the court for a knowledge of the statement therein contained, and without it there was nothing before the court to establish that the Marietta & Cincinnati Railroad Company, existing in 1853, was the company contemplated in the act of March 21, 1851. And inasmuch as proof that this company was organized prior to the act of May 1, 1852, was necessary to the company's defense, and is not shown except by the report referred to, such defense was necessarily unavailing. Judgment affirmed.

(121 Ind. 121)

HOME INS. Co. v. McRICHARDS. (Supreme Court of Indiana. Nov. 21, 1889.) COMPROMISE-FRAUD.

Where, in an action on an insurance policy, a compromise and money accepted by the plaintiff in full settlement are set up as a defense, a charge that, if the settlement was made mala fide and obtained by the misrepresentations of the defendant, and the plaintiff was led into it by deceit or fraud, then plaintiff could recover on the policy, is error, since the plaintiff is not entitled to so ignore the settlement after having received benefit under it. Appeal from circuit court, Washington county; THOMAS L. COLLINS, Judge.

Action by Lavinia J. McRichards against the Home Insurance Company of New York. Judgment for plaintiff. Defendant appeals. Harrison, Miller & Elam, for appellant. Zaring & Hottel, for appellee.

OLDS, J. This is an action upon an insurance policy given for $1,000. The complaint is in the usual form, and no question is presented as to its validity. The defendant answered in three paragraphs,-the first a denial. The second sets up breach of warranty. The third pleaded that the plaintiff had warranted in her application that she was the sole owner of the property, and that it was free from incumbrances, and alleged that there was a breach of such warranties, and that after the property was destroyed by fire the liability of the defendant was disputed, and that a compromise had been agreed upon between the plaintiff and defendant, and a settlement agreed upon by which the defendant was to pay the plaintiff $500 in full satisfaction of said policy, and the defendant had paid said sum, and the plaintiff had accepted the same, and receipted to the company in full, and surrendered the policy. The plaintiff replied to the answer by denial. It clearly appears from the evidence that such settlement was had, and the money paid by defendant and accepted by the plaintiff in full of the amount due. The court charged the jury on this issue in the

you to determine the issue from all the evidence in the case. The burden of proof is upon the defendant, and before it can sustain the issue it must prove the allegations of this paragraph of the answer by a fair preponderance of the evidence. The receipt given may be explained by parol evidence, and all the facts going to establish or tending to prove the compromise or settlement can be shown by parol testimony, notwithstanding the receipt executed by the plaintiff. You should determine the issue from all the facts, circumstances, and evidence in the case; and if you find that the settlement or compromise was full and fair in all its parts. was made in good faith, and was entered into by plaintiff with a full knowledge of the facts, and she was not deceived or misled thereto by any act or representation of defendant's agents, then you should find upon this issue for defendant. But if the settlement was made not in good faith, or was obtained by the misrepresentation of the defendant's agent, and it is shown by the evidence that the plaintiff was led into such settlement by the deceit, fraud, or misrepresentation of defendant's agent, then you should find on the issue for the plaintiff." This instruction is clearly erroneous. There appears to have been an honest dispute as to the liability of the defendant to pay the claim. The application warrants the property free from incumbrances, and that she is the sole owner thereof, and these facts are in good faith disputed, and a compromise is entered into, by which $500 is paid in satisfaction of the policy. The instruction is clearly antagonistic to the doctrine held in the case of Insurance Co. v. Howard, 111 Ind. 544, 13 N. E. Rep. 103. In that case it is said: "One who has been led into a contract upon which he has received something of value cannot ignore the contract, however induced, and proceed in a court of law as if the relations of the parties were wholly unaffected thereby. He cannot, while retaining its benefits and thus affirming the contract, treat it as though it did not exist." The instruction is to the effect that if the plaintiff had entered into the compromise in good faith, with full knowledge of all the facts, and had not been in any way misled or deceived by the defendant or its agents, she could not ignore the contract and sue on the policy; but if she had been misled or induced to enter into the compromise by the fraudulent representations of the defendant or its agents, then she could ignore the contract of compromise, and sue on the policy. If the compromise was procured by fraud on the part of the defendant, she could rescind the contract of settlement by restoring, or offering to restore, what she had received as a consideration; but if she had not been misled and deceived, and settled with full knowledge of all the facts, and there was an honest dispute as to the liability of the company, based upon reasonable grounds, then she would be bound by her contract of

settlement, and could not as of right even rescind it. For this error the judgment must be reversed. Judgment reversed, at costs of appellee.

(121 Ind. 124)

TAYLOR v. EVANSVILLE & T. f. R. Co. (Supreme Court of Indiana. Nov. 21, 1889.) FELLOW-SERVANTS.

were they fellow-servants? If they were, there can be no recovery against the master for injuries caused by the negligence of the co-employe. Drinkout v. Machine Works, 90 Ind. 423; Coal Co. v. Cain, 98 Ind. 282; Car Co. v. Parker, supra; Railway Co. v. Adams, 105 Ind. 151, 5 N. E. Rep. 187; McCosker v. Railroad Co., 84 N. Y. 77; Crispin v. Babbitt, 81 N. Y. 516; Moore v. Railroad Co., 21 Amer. & Eng. R. Cas. 509.

If Torrence was acting in the capacity of a co-employe at the time his negligence caused the appellant's injury, this action cannot be maintained, although he was the appellant's superior, and had the right to retain or discharge him. An agent of high rank may be, at the time an act is done, the fellow-servant of another employe, occupying a subordinate

Where the master mechanic in a railroad company's shops, who has full authority over the men, machinery, and work, and who is the only representative of the company there at the time, orders a workman to disconnect the equalizer of one of the locomotives, and, while the workman is engaged in so doing under the directions of the master mechanic, the latter negligently moves the equalizer so that it falls upon and severely injures the workman, he will not be considered a fellowservant, so as to relieve the company from liability. Appeal from superior court, Vanderburgh position. Hussey v. Coger, 112 N. Y. 614, county; AZRO DYER, Judge. 20 N. E. Rep. 556. If, for instance, the genAction by James Taylor against the Evans-eral superintendent should take hold of one ville & Terre Haute Railroad Company for damages for personal injuries. Demurrer to the complaint was sustained, and plaintiff appeals.

Brownlee & Gudgel, for appellant. John E. Iglehart and Edwin Taylor, for appellee.

ELLIOTT, C. J. The appellant was a machinist in the service of the appellee, engaged in work in its shops in the city of Evansville, under the control of its master mechanic, John Torrence. The master mechanic had the entire control of the shop, of all the employes therein, and of all work. He had full authority to employ and discharge the machinists and workmen, and he had authority to select and to change machinery. On the 21st day of April, 1884, the appellee desired to inspect the head of the equalizer on one of its locomotives for the purpose of ascertaining whether the key could be changed, and its master mechanic ordered the appellant to disconnect the equalizer, and remove it from its place, in order to enable the master-mechanic to examine it. While the appellant was engaged in the work of removing the key of the equalizer, under the master mechanic's direction, the equalizer was negligently pulled out of its place by the master mechanic, and it fell upon the appellant, and very severely injured him. The equalizer was a piece of iron weighing 200 pounds, and it was caused to fall upon the appellant by the negligence of the master mechanic, and without any fault on the appellant's part.

end of an iron rail to assist an employe of the company in loading it on the car, he would be, as to that single act, a fellow-employe, although as to other acts he might be the representative of the master. Where, however, the agent whose negligence caused the injury is at the time in the master's place, then he is not a co-employe, but a representative of the employer. His breach of duty is then the employer's wrong, for in such cases the act of the representative is the act of the principal. By whatever name the position which the agent occupies may be called, he is the representative of the master, if his duties are those of the master; but, if his duties are not those of the master, then he is no more than a fellow-employe with those engaged in the common service, no matter what may be his nominal rank. Car Co. v. Parker, supra; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. Rep. 380; Krueger v. Railroad Co., 111 Ind. 51, 11 N. E. Rep. 957; Railway Co. v. Watson, 114 Ind, 20, 14 N. E. Rep. 721, and 15 N. E. Rep. 824; Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. Rep. 770; Railway Co. v. Lang, 118 Ind. 579, 21 N. E. Rep. 317; Franklin v. Railroad Co., 37 Minn. 409, 34 N. W. Rep. 898; Anderson v. Bennett, 16 Or. 515, 19 Pac. Rep. 765, Railroad Co. v. McKee, 37 Kan. 592, 15 Pac. Rep. 484; Gunter v. Manufacturing Co., 18 S. C. 262.

Our judgment is that, at the time the appellant was injured, Torrence, the master mechanic, was performing the master's duty, and not merely the duty of a fellow-servant. It is established law in this jurisdiction He was in control of the shop where the apthat the common master is not responsible to pellant was working. He was the only repan employe for an injury caused by the neg-resentative of the master at that place. Men, ligence of a co-employe. From this rule, so long settled, we cannot depart. Railroad Co. v. Dailey, 110 Ind. 75, 10 N. E. Rep. 631; Capper v. Railroad Co., 103 Ind. 305, 2 N. E. Rep. 749; Car Co. v. Parker, 100 Ind. 181; Bogard v. Railroad Co., Id. 491; Engine Works v. Randall, Id. 293. It is also settled that the fact that the one employe is the superior of the other makes no difference, for the question is not one of rank. The question is,

machinery, and work were under his control. He gave the orders which it was the duty of those under him to obey, and he alone could give orders as the master's representative. He gave the specific order under which the appellant acted. He did not join the appellant as a fellow-servant in doing the work, but he commanded it to be done. He was in the position of one exercising authority, and not in that of one engaged, in common with

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but was, although a superior agent, engaged in doing the same general work as that for which the appellant was employed, it would be different. As the facts appear in the record, the master had invested the master mechanic with full authority over the appellant and all others employed in the shop under his control; thus bringing the case within the decision in the case of Engine-Works v. Randall, 100 Ind. 293, where it was said: "If the agent or servant upon whom the power to command is given exercises the power, and fails to discharge the obligation, to the hurt of the servant, who is without fault, the failure is that of the master, and he must respond." In the case now at our bar, the agent who had the power to command, and who exercised it, himself violated the duty which rested upon him as the rep

act of negligence brought injury upon the employe engaged in doing the work he was ordered to do. Although the case of Hawkins v. Johnson, 105 Ind. 29, 4 N. E. Rep. 172, belongs to a somewhat different class from the one to which this class belongs, still what is there said as to the right of an employe to obey the directions of a superior is applicable here, and strongly tends to support our conclusion. What we have said of Hawkins v. Johnson applies also to the case of Rogers v. Overton, 87 Ind. 410. Many of the cases go much further than we do here, for they assert that an employe is justified in obeying the orders of one who has a right to command, unless the danger of obedience is so apparent that a reasonably prudent man would not assume the risk. Stephens v. Railroad Co., 96 Mo. 207, 9 S. W. Rep. 589; Huhn v. Railroad Co., 92 Mo. 443, 4 S. W. Rep. 937; Keegan v. Kavanaugh, 62 Mo. 230.

another, in the same line of service. The obligation to make safe the working-place and the materials with which the work is done rests on the master, and he cannot escape it by delegating his authority to an agent. It is also the master's duty to do no negligent act that will augment the dangers of the service. In this instance Torrence was doing what the master usually and properly does when present in person, for he was commanding, and directing the execution of what he had commanded. By his own act he made it unsafe to do what he had commanded should be done. Acts of the master were therefore done by one having authority to perform them, and the breach of duty was that of one who stood in the master's place. It is not easy to conceive how it can be justly asserted that one who commands an act to be done, and who possesses the authority to command and en-resentative of his principal, and by his own force obedience from all servants employed in a distinct department, by virtue of the power delegated to him by the master, is no more than a fellow-servant; for, in the absence of the master, the command, if entitled to obedience, must be that of the master, conveyed through the medium of an agent. Nor can it be held, without infringing the principles of natural justice, that, if he who is authorized to give the command makes its execution unsafe, the employe whose duty it is to obey has no remedy for an injury received while doing what he was commanded to do. Nor do the better reasoned authorities justify such a conclusion. The decisions are conflicting, it is true, but the decided weight of authority is that, where the act is such as the master should perform, he is liable, no matter by whom the duty is performed. "As to such acts," said the court in Flike v. Railroad Co., 53 N. Y. 553, "the agent occupies the place of the corporation, asi the latter should Whether these decisions go beyond the true be deemed present, and consequently liable line or not we neither inquire nor decide, but for the manner in which they are performed." we do affirm that the reasoning, in so far as In this instance Torrence was not a fellow-it covers and is limited to a case such as this, servant while engaged in commanding work is unanswerable; for here the master meto be done, and directing the execution of the chanic had the right to command, and he command, although if it had appeared that was the only person in the shop who could he was engaged with the appellant in doing rightfully command, the employes serving the work, within the line of the latter's serv- under him. The duty of the master mechanices, it might perhaps be otherwise. "The ic, as it appears from the complaint, was to true test," said the court in Gunter v. Man- order what should be done; and this, it has ufacturing Co., supra, "is whether the per- been weil decided, is intrinsically the masson in question is employed to do any of the ter's act, and not that of a mere fellow-servduties of the master. If so, then he cannot be ant. Theleman v. Moeller, 78 Iowa, 108, 34 N. W. Rep. 765; Brann v. Railroad Co., 53 Iowa, 595, 6 N. W. Rep. 5. We do not affirm that an employe, with authority to command, may not be a fellow-servant. On the contrary, we hold that one having authority to command may still be a fellow-servant; but we hold, also, that where the position is such as to invest the employe with sole charge of a branch or department of the employer's business, the employe, as to that branch or department, may be deemed a vice-principal, while engaged in giving orders or directing their execution. Railroad Co. v. Hoyt, 122 III. 369, 12 N. E. Rep. 225; Railroad Co. v. Hawk,

regarded as a fellow-servant, * * but is the representative of the master, and any negligence on his part in the performance of the duty of the master thus delegated to him must be regarded as the negligence of the master." The rule thus stated goes further than we are required to do in this instance; for we need go no further than to hold that while engaged in ordering the work to be done, and in supervising its performance, the master mechanic represented his principal. If, however, it had appeared that the master mechanic was not the person in charge of the men, and the shop and its equipments,

121 Ill. 259, 12 N. E. Rep. 253. "Where," it is said in a well-considered case, "a master places the entire charge of his business, or a distinct department of it, in the hands of an agent, exercising no discretion and no oversight of his own, it is manifest that the neglect of the agent of ordinary care, in supplying and maintaining suitable instrumentalities for the work required to be done, is a breach of duty for which the master should be held liable." Cooper v. Railroad Co., 24 W. Va. 37. Substantially the same statement of the rule is made in Mullan v. SteamShip Co., 78 Pa. St. 25. This rule applies to the case made by the complaint before us, and it is that case, and that alone, to which our discussion is directed, and to which our conclusions apply. If it appeared that the master mechanic worked with the machinists in the shop as a foreman or a like agent ordinarily does, we should have a different case. This, however, does not appear; for, on the contrary, it does appear that the master mechanic was invested with sole control of the shop, ani that his duties were not those of a mere workman, but those of one whose duty it was to manage a distinct department, and to give orders to the machinists and other employes as to the duties they should perform. We cannot further comment upon the decisions on this branch of the case which we have examined, but refer without comment to some of them. Hough v. Railroad Co., 100 U. S. 213; Ford v. Railroad Co., 110 Mass. 240; Wilson v. Linen Co., 50 Conn. 433; Mayhew v. Mining Co., 76 Me. 100; Railroad Co. v. McKee, 37 Kan. 592, 15 Pac. Rep. 484; Railroad v. Peregoy, 36 Kan. 424, 14 Pac. Rep. 7; Trust Co. v. Railroad Co., 32 Fed. Rep. 448.

It is important to bear in mind that the appellant was performing a special duty enjoined upon him by a superior whom it was his duty to obey. Although the work was within the general scope of his service, nevertheless he was performing it under a special order. It was therefore a wrong on the part of the agent, having the right to order him to do the specific work, to increase the peril of the service by his own negligence. The employe, acting under the specific order, had a right to assume, in the absence of warning or notice, that his superior who gave the order would not, by his own negligence, make the work unsafe. Railroad Co. v. Lang, 118 Ind. 579, 21 N. E. Rep. 317; Coombs v. Cordage Co., 102 Mass. 572; Haley v. Case, 142 Mass. 316, 7 N. E. Rep. 877; Goodfellow v. Railroad Co., 106 Mass. 461; Crowley v. Railway Co., 65 Iowa, 658, 20 N. W. Rep. 467, and 22 N. W. Rep. 918; Abel v. Canal Co., 103 N. Y. 581, 9 N. E. Rep. 325; Reagan v. Railroad Co., 93 Mo. 348, 6 S. W. Rep. 371; Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. Rep. 514. We adhere firmly to the rule declared in such cases as Railway Co. v. Watson, 114 Ind. 20, 14 N. E. Rep. 721, and 15 N. E. Rep. 824, and Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. Rep. 770,

that the employe assumes all the risks incident to the service he enters; but we assert that the rule does not apply where a superior agent, representing the master, orders the employe to do a designated act, and, while the employe is engaged in doing what he was specially ordered to do, that superior, by an act of negligence, causes the employe to receive an injury. The employe in entering the service does not assume a risk created by the negligent act of the master's representative in making unsafe work which he specifically orders the employe to perform. If the master mechanic had been no more than a co-employe working with the appellant, or if the appellant had entered the service knowing that the master mechanic was to work with him, then he would be held to have assumed the risk arising from the master mechanic's negligence while working or acting merely in the capacity of a fellow-servant. We hold that the facts stated in the complaint are sufficient to compel the appellee to answer. Judgment reversed.

(121 Ind. 154)

SCHIPPER v. CITY OF AURORA. (Supreme Court of Indiana. Nov. 22, 1889.) MUNICIPAL CORPORATIONS-ULTRA VIRES.

Where a city obtains the right to construct a gutter over private land, down the bank of the river on which it is situated, and thereupon without authority leases the ground acquired to the plaintiff, dition that he fill in on either side of the gutter, to be used by him for a private landing, on the conand he incurs expense in filling in the gutter as far as it is built, but the city changes its plan, and abandons it, so that the land cannot be used for a landing, the plaintiff, while not entitled to damages against the city for breach of contract, may recover for the work he has done which has inured to the city's benefit.

Appeal from circuit court, Dearborn county; WILLIAM H. BAINBRIDGE, Judge. Roberts & Stapp, for appellant. Holman & Holman, for appellee.

MITCHELL, J. Bernard Schipper brought this suit to recover damages for the breach of a contract made by him with the city of Aurora, and to recover for work done under the contract. The court sustained a demurrer to the complaint, and the propriety of this ruling is the only question presented on this appeal. It appears that Litinary street, in the city of Aurora, terminates at the top of the north bank of the Ohio river, and that, in order to carry the surface water which collected on that and other streets from the top of the bank at the south end of the street down to the surface of the water in the river, at low-water mark, so as to prevent the washing out of the bank, the city authorities, in the year 1873, determined to construct a stone gutter of suitable width, on a line with the extension of the center of the street down the slope of the bank,-a distance of 250 feet. In order to carry its plans into execution, the city obtained a grant from James W. Gaff, who owned the land constituting the bank of the river, by which it became authorized

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