Chicago, Burlington & Quincy Railroad v. Weber , 219 Ill. 372 ( 1905 )

Mr. Justice Ricks

delivered the opinion of the court:

Many errors are assigned by appellant and argued by its. counsel, but as we view the case it is unnecessary for a proper disposition of it to consider but two matters urged by the'appellant. The controlling and important questions, as we think, arise from the refusal of the court to give the peremptory instruction directing a verdict for appellant-, and the giving by the court of instruction No. 2 given at the request of appellee. Preliminary to the consideration of these questions we should, perhaps, consider the cross-error assigned by appellee upon the admission by the trial court of the certified copy of the lease from appellant to the railway company. -

Appellee states that the admission of this evidence was error, and cites and relies upon Chicago, Wilmington and Vermilion Coal Co. v. Moran, 210 Ill. 9. We have examined that case and find that it contains a construction of section 18 of the statute in regard to evidence and depositions. (Hurd’s Stat. 1903, p. 937.) Section 14 of that chapter relates to the admission of papers and records, etc., of cities and villages. Section 16 is as to the form of the certificate. Section 17 relates to the manner of certifying the records of justices of the peace, and section 18, which was considered in the case cited, reads: “Any such papers, entries, records and ordinances may be proved by copies examined and sworn to by credible witnesses.” The language of section 16 is peculiar, and states that the certificate of the clerk of a court or village, city or town, shall certify that he is the keeper thereof, and if there is no seal shall so state. All the sections of that act from 10 to 18, inclusive, except section 15, which will be hereafter noticed, were part of an act appearing in the revision of 1845, and when the language of section 16 is considered, that “if there is no seal” the clerk “shall so state,” the meaning and purpose of section 16 are made quite apparent. Section 15 was not passed until 1853, and was no part of the act at the time that sections 16 and 18 were passed. Section 15 reads: “The papers, entries and records of any corporation or incorporated association may be proved by a copy thereof, certified under the hand of the secretary, clerk, cashier or other keeper of the same. If the corporation or incorporated association has a seal the same shall be affixed to such certificate.” This section was doubtless placed by the revisers or editors of the statutes as section 15 of the act for the purpose of giving effect to section 18 in a case where the corporation had no seal. The language of section 15 is clear, unambiguous and direct, and if effect is to be given to it, the only inquiry that can arise under it is as to what is meant by the language “the papers, entries and records” of such corporation or association.

No reason has been suggested why section 15 should not be given effect, other than that in the case cited by appellee it is held that a contract between a certain miners’ union and a certain coal company was not properly admitted in evidence by merely proving a copy thereof by the testimony of a credible witness. In that case it appears that no proof was made that the corporation or association had no seal, nor was there any certificate to that effect, as required by section 16 of the act. We think the case relied upon has no application to the question before us, as in the case at bar the copy is certified by the proper officer, and in compliance with the statute the seal of the corporation is affixed to the certificate. This section of the statute was considered by this court in Mandel v. Swan Land Co. 154 Ill. 177, and it was there held that by virtue of it the papers, etc., that were admissible under its provisions are original and not secondary evidence.

It remains, then, to determine whether the lease is such a paper as is contemplated by the language of said section 15. Whether that section applies to all papers, such as contracts between a company and its employees, or for materials, or other ordinary matters between it and third persons, need not be and is not now considered or decided.

The lease in question is a most important paper in the business of the appellant corporation. It evidences the leasing by it to the railway company of over five thousand miles of railroad, traversing a number of States, with the stations, yards, side-tracks, shops, equipment of engines, cars, machinery, tools, furniture and franchises, except its franchise to be a corporation, for a period of practically a century. That the preservation of such an instrument is of first importance to appellant can be neither doubted nor questioned. The courts must also take knowledge of the fact that under the laws of this State appellant, as lessor, does not escape the risk of frequent litigation arising from the operation of the road by its lessee, and that it would be most hazardous if it were possible that the original instrument be produced at each trial and introduced in evidence, and held by the court or some competent officer until a record should be made, and perhaps by order of the court certified to courts of appeal. We cannot be unmindful of the 'fact that there may be a number of suits pending against appellant and for hearing at the same time in different courts, in which case it would be practically impossible, if not totally so, to have the same instrument in various courts at the same time and to be used as evidence. These considerations doubtless appealed to the legislature in enacting the law, and as no reason has been suggested and none suggests itself to our minds why the statute in question may not and should not be given full effect, we are disposed to give it effect, and to hold that the lease in question is such an instrument as is contemplated by the provision of the statute, and that the court did not err in the admission of the copy so certified as evidence.

Appellee urges that this evidence is incompetent and that this court should so hold, and that if it does so hold there is no competent evidence in the record to support the plea in abatement, as it is said by appellee that the only legal evidence of the leasing of the railroad by appellant to the railway company is a written lease, and that no such lease was in evidence. If the question were as to the contents of the lease or its provisions, and as between the parties to it, the position taken by appellee would certainly be sound. But such is not the situation, as we view it. The terms and conditions of the lease were not material or controlling. The fact that the railroad was being operated, at the time of the injury complained of, by a railroad company other than the appellant was the material question that arose under that plea, and it would seem clear that anybody having knowledge and who was familiar with the railroad corporations, and who knew that up to a given time one of them operated the road and after that time the other operated it, could testify, and the evidence would be competent and material. Three witnesses did testify, and they show by their testimony that they had absolute knowledge, as they were employees originally of the appellant company and from 1901 were employees of the railway company, and their business and duties were of such a character and their relation to the two companies such that they could not be mistaken upon the fact as to who was actually operating the railroad.

Appellee strenuously insists that the questions of fact as to what company was operating the railroad at the time of the injury is foreclosed by the finding of the jury and the judgment of the Appellate Court. Under the request to direct the jury to find a verdict for appellant a question of law,' and not a question of fact, arose, and that question of law is preserved and open to our consideration. If there is evidence in the record which, taken as true, together with all the reasonable legal inferences that may arise therefrom, tends to support the position of appellee that the railroad was being operated by appellant and not by the railway company, or if, under the law, although the railway company may have been operating the railroad, service upon the agent of the railway company was legal service as to the railroad company, then the trial court was warranted in refusing the instructions as asked, otherwise not. As is pointed out in the statement of the case, the only evidence tending to show that the railroad company was operating the railroad at the time of the injury was the folder offered by appellee; but in offering that evidence appellee inquired of the witness Bradford, and elicited from him the statement that that circular or folder was issued by the railway company and not by the railroad company. Furthermore, it is not shown that the railroad company had at any time such a stamp as that which was impressed on the first page of the folder, or that it was placed there by any person in authority of the railroad company. In the absence of such proof, and with the proof called forth by appellee clearly showing that the folder was not a folder issued by appellant but by the railway company, it, with any inference that could be drawn from it, amounted to a mere scintilla of evidence at the very most. It went to the jury and to the court absolutely discredited and absolutely shown not to be the document or act of appellant, but that of another company not a party to the suit. It did not amount to any legal evidence, or was not such evidence as comes within the requirement that it shall be such evidence as, with all the reasonable inferences that shall be drawn from it, fairly tends to support the contention of the party relying upon it, so that unless service upon the servants of the railway company can be held to be service upon appellant the instruction should have been given.

Since 1855 the statute of this State has permitted railroad companies organized under the laws of this State to lease their railroads to corporations organized in this and other States. (Hurd’s Stat. 1903, chap. 114, par. 44.) But, following what seemed to this court to be a sound doctrine, we have uniformly held that a railway company cannot absolve itself from the performance of duties imposed upon it by its charter or any general law of the State, or relieve itself from liability for the wrongful acts or omission of duties of persons operating its road, by transferring its corporate powers to other parties or by leasing its road to them; and so we held in Balsley v. St. Louis, Alton and Terre Haute Railroad Co. 119 Ill. 68, that the lessor company was liable for the destruction of property by fire caused by neglect upon the part of the lessee company to keep its track and right of way clear and free from dead grass and dry weeds, etc.; and in Pennsylvania Co. v. Ellett, 132 Ill. 654, it was held that the lessor company was liable for the death of one caused by the negligence of the operating company. • It is there said (p. 659) : “The law has become settled in this State by an unbroken line of decisions, that the grant of a franchise giving the right to build, own and operate a railway, carries with it the duty to so use the property and manage and control the railroad as to do no unnecessary damage to the person or property of others, and where injury results from the negligent or unlawful operation of a railroad, whether by the corporation to which the franchise is granted or by another corporation, or by individuals whom the owner authorizes or permits to use its tracks, the company owning the railway and franchise will be liable.” In the more recent case of Chicago and Grand Trunk Railway Co. v. Hart, 209 Ill. 414, we held that the lessor company was liable to the servants of the lessee company for injuries received by the breaking of a worn or defective axle or journal on a switch engine upon which such servant was employed. Among other things it is there said (p. 417) : “While the duty which rests upon the lessor companies to operate their roads is an obligation which they owe to the public, the permission given by the legislature, as the representative of the public, to perform that duty through lessees has no effect to absolve such companies from the duty of seeing that the lessee company provides and maintains safe engines and cars, and that the employees of the lessee companies to whom is entrusted the operation of their roads are competent and that they perform the duties devolving upon them with ordinary care and skill, for upon the character and condition of safety of such engines and cars and on the competency and care of such employees depend the lives and property of the general public. As a matter of public policy such lessor companies are to be charged with the duty of seeing that the operation of the road is committed to competent and careful hands.” The doctrine that a railroad company cannot escape liability for injuries resulting from negligence by leasing their roads or permitting other companies or persons to operate the same is neither new nor modern, but was early announced in Lesher v. Wabash Navigation Co. 14 Ill. 85.

The cases above cited, and many more announcing the same principle, are cited by appellee, and his insistence is, as we understand it, that inasmuch as the law is that the lessor company is liable for the negligence of the lessee company, therefore the lessee company is, in law, the agent and servant of the lessor company, and being such agent or servant, service upon the lessee company is a compliance with the law in regard to the service of process in such cases; and if we understand counsel for appellee correctly, their contention goes further, and to the extent that the agent and servants of the lessee company are the agents and servants of the lessor company as to the public and third parties. As applied to the question of liability for negligence, and confined exclusively to that question, it is doubtless true that this court has gone so far as to say. that the public and third persons may look to the corporation to which a franchise has been granted, and that for that purpose a company which such original company permits to use its tracks, and likewise the servants and employees of such lessee company, will be regarded as the servants and agents of the owner. The doctrine of agency and liability has not been carried beyond that class of actions arising from the negligence or willful failure to perform a duty springing from the chartered powers and owing to the public. It has not gone to the extent of liabilities arising from contracts, or even the torts of the lessee company, if they are not made or committed in the discharge of and in connection with the public duty arising from an obligation springing from the chartered privileges or chartered powers of said company. (Anderson v. West Chicago Street Railroad Co. 200 Ill. 329.) The fact that the lessee company and its servants and agents may, as a matter of public policy, be held the servants and agents of the lessor company in actions for negligence arising in the exercise of the chartered powers of the lessor company, does not also require or authorize the holding that such servants and agents, for the purpose of liability, shall also be held as the servants and agents of the lessor company for other purposes. It would hardly be contended that if the lessee company makes purchases of supplies, machinery, rolling stock, or the many other things' necessary in the operation of a railroad, the lessor would be liable therefor upon any principle of agency or upon the principle of agency declared in the cases ábove. cited and quoted from. Nor would the lessor company be liable in an action of tort, in replevin or trover for the unlawful taking or holding of property by the lessee company or its agents. The question of liability of the principal for acts that it cannot delegate to others is a question wholly distinct from the question of agency. The statute regulating the practice and procedure in courts of record provides that “an incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor station agent or any agent of said company found in the county, and in case the proper officer shall make return upon such process that he cannot in his county find any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any other agent of said company then such -company may be notified by publication and mail in like manner and with like effect, as is provided in sections twelve (12) and thirteen (13) of an act entitled ‘An act to regulate the practice in courts of chancery,’ approved March 15, 1872.” E. F. Bradford, upon whom service was attempted to be or was made as the supposed agent of appellant, testified, and was supported by two other witnesses, the evidence of each of whom was uncontradicted, that at the time of said service he was not the agent or servant of appellant and had not been since 1901,—almost two years prior to the time of service. He was the agent of the railway company. He was not acting for appellant, was not employed by it, was not paid by it and received no directions from it. It had no control over him. He made no reports to it and it could not discharge or relieve him from his position. He owed it no duty, and could not, except in a sense of liability for negligence in the discharge of its chartered powers, be regarded in any manner as the agent of appellant. As a servant or agent he would owe a duty to his principal, and if served with process in actions against his principal his duty naturally would be to forward the copy to his principal or advise his principal of the service thereof, and upon his failure to do so his principal would have the remedy to discharge him, while appellant would have no remedy. Bradford owed no such duty to appellant, but was interested in the welfare of the railway company of which he was a servant, and if he consulted the interests of his principal he might well conclude that he sub-served them by silence as to such service. The lessor and lessee are alike responsible for the actions of negligence of the servants of the lessee, and if the rule contended for is sound, an action may be brought against both and service had upon the agent of the lessee, who owes no duty to advise the lessor of the bringing of such suit or the service upon him of the process, and whose interest lies with the lessee, and the interests of the latter may be that judgment shall go against the lessor, so that a judgment by default may go against the lessor without any knowledge that it has been sued. Of course, this could make no difference if the person served was in fact the agent or any one of the persons named in the statute upon whom service might be made, as the courts do not inquire into the discharge of the duty of the agent to his principal, as that is a matter between them; and if the service is good, in the absence of an appearance the court will enter a default, and such default will stand whether the principal received notice of the service or not. This and many other situations clearly not contemplated by law could readily arise which should make the process of courts a mere pretense, and for all practical purposes the defendant had as well be served by notice of publication in a newspaper in some foreign country as to assume a service such as is here contended for. The language of the statute in this provision as to who may be served requires no nicety of construction. It is plain and simple and is to be given its ordinary meaning.

The question has arisen in other courts, and so far as we know there is but a single case in a court of review in all the States that in any reasonable degree sustains appellee’s position. That case is VanDresser v. Oregon Railroad and Navigation Co. 48 Fed. Rep. 202. It bears little analogy to the case at bar, and if it were in point we would not be disposed to follow it, as it is contrary to the general rules of construction of statutes and the spirit of our law as we interpret it.

By section 1 of the Practice act railroad companies may be sued where the principal office is located or in any county through which the railroad runs, and by section 4 of the act, as we have already pointed out, service may be had in those counties where no agent or clerk or other person authorized fry the statute to be served in such cases is kept, by publication in the same manner as in suits in chancery. The law, therefore, furnishes a remedy, and though it may not be the most satisfactory or convenient, we are not authorized to enter the field of legislation and add to the statute still a further provision for the benefit of those in the appellee’s situation.

We think the service was not a valid or legal one, that the peremptory instruction directing a verdict for appellant should have been given, and that the court erred in giving the second instruction given at the request of appellee. The judgment is therefore reversed and the cause is remanded to the circuit court of Adams county for further proceedings in conformity with this opinion.

Reversed md remaM

Mr. Justice Magruder, dissenting.