of the written agreement, and upon this, when sufficien, the mistake of the parties will be rectified and the contract enforced as corrected. 1 Story's Equity Jurisprudence, § 153; 2 Chitty on Con. (4th Am. Ed.) p. 1022; 1 Greenleaf Ev., § 296a. American Express Co. v. Pinckney, 29 Ill. 392; Burr v. Broadway Ins. Co., 16 N. Y. 274, and Barnard v. Cushing, 4 Metc., 233, cited by counsel for appellant, only assert the general and familiar rules of construction that the whole contract is to be considered in giving construction to its terms, and that although there may have been a mistake in the use of language, yet, if notwithstanding the mistake, the intent still remains clear, the mistake may be disregarded in an action at law. The terms of a contract may or may not all appear upon one page of paper; they may be on several pages-on different sheets or on different parts of the same sheet. In every case it must be determined by the court from the evidence offered, whether that claimed to be the entire evidence of a written contract is so in fact, or whether there is also other evidence in writing that should be admitted.

It is here claimed by appellant that an indorsement on the policy of insurance would, in an action on the policy in a court of law, be received in evidence as a part of the contract, or rather as an explanation and rectification of the ambiguity upon the face of the policy. To have this effect it should appear that the indorsement was intended by the parties as expressing the terms of the contract wherein it is claimed to explain and correct the language of the policy, but otherwise there is no principle upon which it could be admitted without violating the rule we have referred to as controlling the admission of evidence in actions at law in variation of the terms of a written contract. Applying this test here, the endorsement will be found inadmissible. The endorsement is this: "Expires 7th April, '75. From Stewart & Co. Agency." By whom or when it was made does not appear. It may have been made, for all that appears, by an entire stranger to the transaction. It may have been made long after the execution of the policy by one party without the knowledge or approbation of the other. It proposes to bind nobody-contains no direction to any one having an interest in the policy or duties to perform in respect of the contract which it evidences-and is evidently but a memorandum made by some one for convenience of reference, and not accurate at that, for no one pretends the policy expires when it says it does-April 7, 1875all admit that the day on which the policy expires is the 2nd and not the 7th day of April. Our conclusion is that, under the evidence now before us, had an action at law been brought on the policy, this endorsement would have been inadmissible for the purpose of explaining and rectifying the ambiguity on the face of the policy. Disregarding this evidence a court of law would have seen that there was clearly a mistake in the terms of the policy, because the date of its expiration was an impossible one. Thus far there would have been no difficulty. But to have justified such a court

in disregarding the ambiguity and enforcing the contract according to the intent of the parties, it must have clearly and satisfactorily appeared from the face of the policy, not only that there was a mistake in the language of the policy, but also what was the real intention of the parties. The face of the policy fails to show what was the intention of the parties. There is no more reason for a court of law to conclude from the face of the policy that the mistake was in the year than in the month. It is obvious that it was just as liable to exist in the one respect as in the other, and there is no language that we have discovered that would decisively show that it must necessarily have been in the one, and could not have been in the other respect. We are, therefore, of opinion that the mistake was one peculiarly within the jurisdiction of a court of equity to rectify. Savage v. Berry, 2 Scam, 545.

After the filing of answer, appellant suggested that recently, and since the commencement of the suit, a receiver of appellant had been appointed in another chancery suit pending in the same court, and asked that he be made a party defendant. This the court declined to do, and that ruling is also assigned for error. There is no objection to this ruling. We said in T. W. & W. R. R. Co. v. Beggs, 85 Ill. 80, "the suit was regularly brought against the corporation prior to this adjudication, and it had not the effect to abate or continue an existing cause of action already in suit. We do not think that the mere fact that the property of a railroad corporation has passed into the hands of a receiver should bar a suit therefore instituted against a corporation to recover a demand against it. When the successful party undertakes its collection it may be the receiver can interpose." Had the receiver desired to be let in to defend he should have personally made application therefor. Lawrence v. Lane, 4 Gilm. 354. The other errors assigned are without merit. It was competent for the court in the same decree to rectify the mistake and give judgment for the amount due upon the policy as rectified. Ballance v. Underhill, 3 Scam., 459; Willis v. Henderson, 4 Id 18. Broadwell v. Broadwell, 1 Gilm. 605. It in no wise prejudices appellant that judgment was given before the master in chancery formally rectified the mistake in the policy as directed by the preceding branch of the decree although informal. It was competent for the court to treat that as done which it determined should be done and decree accordingly.

The evidence in the additional abstract sustains the decree.

The decree is affirmed.

A petition to the President asking for the removal from office of Chief Justice Schaeffer, of Utah, has been extensively signed by the bar of Salt Lake City. The petition alleges ignorance or disregard of law and precedent even of his own previous rulings; and that the clerk, his brother-in-law, and his son, are managing the clerk's office in such a manner as to bring the court into contempt.





Supreme Court of Kansas, January Term, 1878. [Filed June 19, 1878.J

HON. ALBERT H. HORTON, Chief Justice.

66 D. M. VALENTINE, Associate Justices. 66 D. J. BREWER,

OBLIGATIONS ARISING UPON CONTRACT MERELY, and involving no trust, can not be enforced by manda


By joint resolution of Congress, approved March 2, 1867, four thousand acres of very valuable land of the Fort Riley Reservation in Kansas were granted to the State of Kansas, on condition that a bridge should be built over the Republican river, on a public highway leading through said reservation, to be free to the use of the Government of the United States for all transit purposes, and to be kept up and maintained in good condition forever. Upon the acceptance of such grant, the state guaranteed the United States the fulfillment of the conditions of the grant by an act of the legislature of the state. As soon as the joint resolution passed Congress, and before it had been approved by the President, the legislature of Kansas passed, on Feb. 26, 1867, a special act transferring all the lands donated by Congress to the Republican River Bridge Company. This special act provided that such company should build and complete the bridge in one year from the approval of the special act, and deposit with the governor satisfactory surety against any loss the state might incur by reason of the legislative guarantee given by the state to the United States, and then have a patent of all the 4,000 acres of land.

The bridge company completed the bridge in 1867, and deposited a bond executed by certain sureties to insure the state from loss, and obtained all the lands.

The lands were divided up and sold to bona fide purchasers. The corporation became insolvent; the bonds became worthless as a security, and in 1877 the bridge fell into the river and became a wreck. The official authorities of the United States reminded the governor of the State of Kansas of the legislative guarantee of 1867, and demanded that the bridge should at once be repaired and put in condition for transit purposes. The governor notified the company of the demand of the United States, and the company failing to take any steps to comply with this request, this action was brought by the attorney-general.

Willard Davis, attorney-general, and H. B. Johnson, Esq., for the state; Messrs. McClure, Humphrey & Ketner, for the respondent.

HORTON, C. J,, delivered the opinion of the court:

On the 25th day of September, 1877, this court, npon the motion and application of Hon. Willard

Davis, the attorney-general for the state, allowed an alternative writ of mandamus against the Republican River Bridge Company of Davis County, commanding the company to reconstruct a bridge, built in 1867, over the Republican river, on the public highway leading from Fort Riley to Junction City, in Davis County, or show cause on November 24. 1877, why it had not done so. On the return of the process the defendant appeared, and moved to quash the writ on the ground that the facts stated therein were not sufficient in law to constitute a cause of action against the company. The writ recited the original charter of the company, filed in the office of the secretary of state on November 11, 1864, and which set forth that the object for which the company was formed was the erection of a toll bridge over the Republican river at the place above-named; the joint resolution of Congress, of March 2, 1867, releasing from the military reservation at Fort Riley, all that part of the reserve lying and being between the Republican and Smoky Hill rivers, to wit: about 4,000 acres of land, and granting the same to the State of Kansas, to aid in the construction of a bridge over the Republican river, on the public highway leading through the reservation, upon the condition that the grant should be accepted by the state, with a guaranty given, by an act of the legislature, that the bridge should be kept up and maintained in good condition and be free to the use of the Government of the United States for all transit purposes forever, and without tolls or charges; the special law of the legislature of February 26, 1867, accepting the grant of Congress, obligating the state to comply with the terms of the joint resolution, and authorizing the bridge company to proceed under its charter to construct the bridge; that by said act of Febuary 26 it became the duty of the company to complete the bridge within one year from the approval of the same, and deposit with the Governor satisfactory surety and guarantees to fully indemnify the state against any loss or losses by reason of the guarantee given by the state to the United States, and its right to receive therefor a patent for all said lands so released from the military reservation and granted to the state. The writ further recited that the bridge company accepted from the state the grant of land; that it constructed the bridge as required by the act of February 26, 1867; that it gave its guaranty and obligation to indemnify the state against any loss or losses by reason of its legislative guarantee to the United States, and afterwards received and accepted a patent for the 4,000 acres of land; that it neglected, failed and omitted to keep up and maintain the bridge in good condition and repair, but allowed and suffered it to rot, decay and become unsafe, and finally to fall into the river, a total wreck, on August 20, 1877, and that since then it had failed, neglected and omitted to reconstruct and rebuild the bridge.

The question is raised by the motion of the respondent, which is equivalent to a demurrer to a petition in an ordinary action, whether under the joint resolution of Congress, the act of the legislature of February 26, 1867, and the facts recited,

any duty has been omitted, which can be enforced by a writ of mandamus against the company. The question to be decided is, not whether the state is entitled to relief from the unfortunate position in which it is liable to be placed by the failure of the respondent to keep up and maintain the bridge over the Republican River in a good condition, but whether it is entitled to the relief demanded, that is, a writ of mandamus to have the bridge rebuilt and forever kept in repair.

A writ of mandamus may only issue to an inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty, resulting from an office, trust, or station, (Civil Code, sec. 688, as amended laws 1870, ch. 87, 28), and may not issue in such cases where there is a plain and adequate remedy at law. Sec. 689. Now if there is a specific duty imposed by law upon the respondent, resulting from an office, trust or station, and no other adequate or specific remedy is provided for its enforcement, the writ of mandamus may be granted in this case, but if no such duty is enjoined, or if, being enjoined, there is another adequate remedy, then the writ does not lie. As the object of the bridge company, under its charter, was the erection of a toll bridge, there is no obligation, either imposed or assumed, on the part of the corporation within the terms of its charter to maintain forever a bridge of the character named in the application before us. It cannot be said in this case that the state may proceed by mandamus to compel the company to rebuild on the ground that the company, having entered upon the exercise of its charter franchises, owes a duty to the public which it can not, at its caprice, abandon. It is conceded by the learned counsel for the state, that the charter of this company is permissive, and not obligatory; that the company could build the bridge or not, at its election; that the mere exercise of a permissive right to build the bridge would not create the legal duty to maintain it forever, and that the company is not precluded by anything in its charter from abandoning its franchise at any time. If, then, this action can not be maintained under authority to compel the company to exercise its corporate powers originally granted or obtained by its charter, the significant query is at once suggested, what duty is specially enjoined, which has been omitted? Counsel for the state say the bridge in question was built under the act of the Legislature of Feb. 26, 1867, and not under its original charter. This is true, and we turn to that act to ascertain the specific duties, if any, commanded to be performed. They were, first, to complete the bridge within one year from the date of the approval of the law; second, to notify the Governor of the state immediately of its completion, and third, to deposit with the Governor satisfactory surety and guarantees, fully indemnifying the state against any loss or losses by reason of the guarantee given by the state to the United States. All these duties were promptly and fully complied with in 1867, to the satisfaction of the Governor of the state, and there is no special duty left undone expressly enjoined by the said act.

The counsel for the state argue, however, that the acceptance of the act of of Feb. 26, 1867, by the bridge company carried with it the implied agreement or understanding that the company would keep the bridge constructed by it in repair for all time. Admit that this was the expectation of the law makers, yet they thought fit to protect the state's interests only by a bond. A part of the land might have been retained as security, or a lien for repairs of the bridge might have remained upon the land for all time, and in other ways indemnification could have been amply secured. The state, however, deemed it advisible to accept a bond as its sole security, and the only relation the bridge company sustained to the state, arising upon the bond, is purely a contract relation, for the violation of which there is an adequate remedy at law. We look in vain through the charter of the company, the joint resolution of Congress, and the act of 1867, for any duty unperformed, specially enjoined by law, resulting from an office, trust or station. Even the implied obligation was secured, or attempted to be secured by a penal bond, which, when taken, was acceptable. Under this view there is no legal duty existing which can be enforced by a writ of mandamus. That the venture taken by the state is likely to prove unprofitable; that the means furnished by Congress to build and maintain the bridge are exhausted; that the lands have been divided up and sold to bona fide holders; that the bridge is now a wreck and useless; that the bond of indemnity is probably worthless, and that the state may be required to make good its legislative guaranty of 1867, are strong arguments of the recklessness and improvidence of the legislation which culminated in conferring upon the respondent the vast estate of lands it received, but these facts in no way establish any principle, or make plain any duty upon which the relief prayed for can be granted. That the action of the Legislature in 1867 was unusually hasty and inconsiderate, is evidenced by the mere statement that the law providing for the transfer to a private corporation of all the valuable lands granted to the state to aid in building and maintaining a bridge over the Republican River, was approved on Feb. 26th, 1867, and the joint resolution of Congress, making the grant of these lands, and upon which the action of the state was taken, was not approved till March 2nd, 1867. As soon as the vote had been taken at Washington upon the joint resolution, the special act of 1867 was hurried through our legislature. That body was so anxious to give to the respondent these lands, upon the terms of the said act, that it did not defer action till the resolution of Congress was formally approved by the President. That such indecent haste should finally result in trouble, vexation and perhaps disaster to the state, is neither unexpected nor startling. A mere recitation of the facts of this case affords a seeming verification of the scriptural proverb, "They who sow the wind shall reap the whirlwind."

If we adopt the conclusion which has been suggested, that instead of the relation between the state and the bridge company being one purely of

contract, special powers or franchises were bestowed upon the respondent by the special act of 1867, which it is the right of this court to enforce to the full extent of compelling the company to rebuild and maintain forever the bridge, then we are met by the insurmountable barrier, that special acts of our legislature conferring corporate powers are forbidden and void. Art. 12, Sec. 1, State Const.

"A power that would not be a corporate power when exercised by an individual becomes a corporate power when exercised by a corporation." Gilmore v. Norton, 10 Kas. 491. Viewing the case in the most favorable aspect we can for the state, and assuming the act of Feb. 26, 1867, in regard to the rights conferred on the respondent, was valid, we have nothing between the state and the company as a security for the protection of the former but the obligation of the latter, given in pursuance of section 4 of said act of 1867, and as obligations arising upon contract merely, and involving no trust, cannot be enforced by mandamus, the motion of the respondent must be sustained and this action dismissed. All the justices concurring.


Accepting this as the foundation of the rule, and it would seem that there could be but little difficulty in determining, in any case, the question of the injured servant's right to maintain an action against the common master. For instance, I engage to serve as brakesman for a great railroad company, in whose employment is a vast army of men. The company has its machine-shops, where are employed master-mechanics, inspectors of machinery, and a multitude of workmen, whose duty it is to furnish and keep in repair locomotives and cars to be used on the road. The station agent improperly and negligently dispatches a train, which results in a collision with the train upon which I am employed, injuring me; the switchman negligently leaves a switch misplaced, which throws my train off the track and I am injured, or any one of the hundred officers and men engaged in running the various trains of the company may, by his negligence or incompetency, injure me. The master was without fault in employing the negligent or incompetent servant. I must have foreseen, when I entered the service, that I was exposed to these dangers, and under the reason now being discussed, should be held to have assumed them by virtue of my contract. And so it is held by the great weight of authority. But again, through the negligence or incompetency of those servants of the company whose duty it is to furnish and keep in repair the locomotives, etc., an engine or car, defective in construction or from want of repair, is furnished my train, and injury results to me in consequence thereof; or, again, the section-boss, whose duty it is to travel over a portion of the track daily, and

see that it is kept in repair-to replace defective ties, broken rails, etc., negligently suffers a broken rail, etc., to remain in place, in consequence whereof my train is thrown from the track and I am injured-here, as in the case before supposed, the master, i. e. the company, was without fault in employing the servant whose negligence caused the injury. When I entered the service I must have as clearly foreseen that I was exposed to danger from the negligence or incompetency of those servants charged with the duty of furnishing and keeping in repair the cars, engines, tracks, etc., as of those engaged in operating the train, and should be held to have assumed these risks by virtue of my contract. The one class of risks is as clearly within the reason now under discussion as the other. Yet we find many decisions to the effect that the injured servant may recover against the common master for injuries resulting from the latter class of risks-notably Ford v. Railroad Company, 110 Mass, 240, commented on and approved in Harkins v. Standard Sugar Refinery, 122 Mass. 400; Gibson v. Railroad Company, 46 Mo. 163; Brothers v. Cartter, 52 Mo. 373; Lewis v. Railroad Company, 59 Mo. 495; Greenleaf v. Railroad Company, 29 Iowa, 14; affirmed in Cooper v. Railroad Company, 44 Iowa, 134; Railroad Company v. Sweett, 45 Ill.; affirmed in Railroad Company v. Jackson, 55 Ill. 492; Railroad Company v. Gregory, 58 Ill. 272; Laning v. Railroad Company, 49 N. Y. 521; Flike v. Railroad Co. 53 Id. 549. See 59 Id. 517; see also Maline v. Hathaway, 64 Id. 5, for a decision apparently contra: Church, C. J. and Rappallo, J. dissenting. In some of these cases we are told: "The duty or contract of the master is to the result that the servant shall be under no risks from imperfect or inadequate machinery, or other materials, means and appliances." The master can not avoid the duty or responsibility for a failure in the performance of it, by delegating it to another. "It is a duty or contract to be affirmatively fulfilled and performed, and there is not a performance of it until there has been placed for the servant's use perfect and adequate physical means, or due care used to that end."

"It is for the master to do by himself or by some other. When it is done, then, and not until then, is his duty met or his contract kept." "The true rule is to hold the corporation liable for negligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or degree of the agent or servant intrusted with their performance."

In others we are told: "The servants employed in furnishing and repairing the machinery, etc., are not fellow-servants within the rule with those engaged in operating it; because they are engaged in distinct departments of the common employment." Yet we are taught by repeated decisions of the same courts, in which this language is held, that "it is not necessary in order to exempt the master that the injured servant should be employed in the same department with the one whose fault caused the injury; it is sufficient

that their respective services are directed to the accomplishment of the same object, to wit. : the successful operation of the railroad." Why this inconsistency? May it not be because the rule itself has been felt to be an unjust one, when extended so as to embrace within the term "fellowservants in the same common employment," all who are engaged in promoting the same ultimate object, no matter how distinct the departments in which they serve?

May it not, with as much reason, be said to the passenger, who is injured through the negligence of any of the employees of the company over whose road he is traveling, that he must have foreseen when he purchased his ticket that he would be liable to be injured through the negligence or incompetency of any of these employees, even though the company had exercised due care in endeavoring to employ none but careful and competent servants; that foreseeing this he must be presumed to have stipulated for a cheaper passage to compensate him for these risks; and, therefore, by virtue of his contract, he became his own insurer against all such ordinary dangers of the trip, and deny him a right of action against the company, if he be so injured? He has generally as good means of protecting himself against such negligence as the servant in one department has of protecting himself against the negligence of his fellow-servant in another and entirely distinct department of the service: that is, simply no means whatever.


But the passenger may recover against the company. Why? Not because it was guilty of any negligence in employing the servant whose negligence caused the injury, but upon the ground of public policy. It being plainly foreseen that the natural consequence of such a doctrine will be to insure a greater degree of care on the part of these common carriers of passengers, why should not the master's liability to his servants in one department of his service, who are injured through the the negligence of his chosen servants in another department, be determined by the same considerations? Is the life of the servant of consequence in the eye of the law than that of the passenger? As said in the case of Killey v. Belcher Mining Company, supra. "It is assuming the whole question-as to the reason, justice and policy of exempting the master from liability in such cases-to say that such exemption is implied from the contract of service; for unless the exemption is demanded by reason and sound policy, it ought not to be implied. Among the duties and obligations arising out of the relation of master and servant, the law regards that of the master to provide for the safety of those in his employment as the first and highest. This obligation includes the exercise of due care in the selection of all who are to act for him, and requires him at least to see to it that those who labor in one department of his business are not injured by his chosen servants in another. Unless this is so, there is no adequate protection to the laborer against his employer's negligence, for the workmen in one department, having no authority over those in an

other, nor any opportunity of observing or influencing their conduct, or of guarding themselves by their own care and prudence, are defenseless save through the watchful care of the master, which can be secured only by throwing upon him the responsibility of seeing that each department of his business is conducted with due care."

If it be said, as contended by Judge Cooley, in his pamphlet, that this liability to its passengers affords a sufficient guaranty for the exercise of due care upon the part of the railroad company, we answer that with many of the great enterprises of to-day, in which thousands are employed, mining, manufacturing, etc., third persons, the general public, are never brought in contact. Here, then, this guaranty for due care on the master's part is not afforded, the safety of the employees alone being endangered.

Another, and the only remaining reason which is given for the rule, is that the effect of a law which would hold the master answerable to each of his servants for the injuries which he might sustain through the negligence of a fellow-servant, would be to paralyze many of our great industries. Is this true in fact? All our railroad and steamboat companies are held to precisely this degree of liability in favor of their passengers. The number of their passengers as compared with that of their employees, is as thousands to one. If this liability to their passengers does not paralyze them, is there any just reason to fear that they will be crushed out, if it be extended to their employees, so comparatively few? Such liability has, in fact, been imposed by statute in several of the states without any such fatal consequences-in Iowa, Georgia, and perhaps some others.

It appears to us that the question of the master's liability to his servant for injuries sustained in the employment, affecting, as it does, the safety and lives of many thousands, should be determined from the standpoint of public policy alone. If the rule of the master's exemption were restricted so as to apply to those of his servants only who were engaged in the same department of the general business, where each would have an opportunity of observing the conduct of the others, and the means of protecting himself, to some extent, against their negligence, it might not be open to serious objection. But carried to the extent to which it has been, by the general current of authority, it does appear to be unjust and unsound in principle.

In the language of Judge Simrall, in N. O. J. & G. N. R. R. Co. v. Hughes, 49 Miss. 258: "There is no trouble in apprehending the fitness and propriety of the principle when the work to be done is concentrated and the employees are kept in close contact, as when the eye and ear may command the scene of operations. But when the work is vast and ramified like a railroad stretching across degrees of latitude, requiring the services of hundreds and perhaps thousands of employees of every degree of skill and intelligence, from the ordinary laborer to the machinist and the man of high scientific attainments, and when those employed are so numerous and widely scattered that few can

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