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Other assignments of error by Hamilton and wife have been examined. They are not well taken, and the decree, so far as involved by the appeal of Hamilton and wife, is without error, and is affirmed.

The cross appeals of Fowler and Caesar and Maxwell from the decree perpetuating the injunction restraining a sale by the trustee must be dismissed. The cross appellants did not ask for leave to dismiss their cross bill, but proceeded with it, and took, according to its prayer, a decree for the foreclosure of their mortgage by a sale under the direction and order of the court. This the learned judge below regarded as an election between two remedies. Inasmuch as the court taxed the costs of both the original and cross bill to Hamilton and wife, and gave to the cross appellants the full relief asked by their cross bill, we can see no reason for complaining that the court enjoined them from proceeding with the remedy by a sale by the trustee under the power of sale in the mortgage. This was an election to resort to the court for a foreclosure decree, and it was not error to enjoin the trustee's sale.

The appellants Hamilton and wife will pay two-thirds of the cost, and the cross complainants Fowler and Caesar the remainder.

(99 Fed. 657.)

ILLINOIS CENT. R. CO. v. BENTZ.

(Circuit Court of Appeals, Sixth Circuit. February 12, 1900.)

No. 734.

MASTER AND SERVANT-FELLOW SERVANTS-RAILROAD ENGINEER AND TELEGRAPH OPERATOR.

A telegraph operator at a railroad station, charged with duties in connection with the operation of trains on the road, and the engineers of such trains, are fellow servants at common law, and the railroad company is not liable for the death of an engineer in a collision, due to the negligence of an operator in failing to report the passing of a train at his station. 1

In Error to the Circuit Court of the United States for the Western District of Tennessee.

This is a writ of error to review a judgment of the circuit court for the Western district of Tennessee in favor of Isabella Bentz against the Illinois Central Railroad Company. Isabella Bentz is the widow of Ed. Bentz, who was an engineer on a locomotive engine of one of the freight trains of the defendant company, and was killed by a collision between two trains of that company at a point two miles north of the town of Russell, in the state of Tennessee. This action was brought under the statute of Tennessee providing for damages for injury by wrongful death. The evidence disclosed the facts to be as follows: Bentz's train was freight train No. 84. The train with which it collided was freight train No. 81. Bentz's train was running north from Jackson, Tenn., towards Martin, Tenn., a distance of 53 miles. The only telegraph station open at night between Jackson and Martin was at

1 As to who are fellow servants, see notes to Railroad Co. v. Smith, 8 C. C. A. 668; Railway Co. v. Johnston, 9 C. C. A. 596; Flippin v. Kimball, 31 C. C. A. 286.

Milan, 23 miles from Jackson. The train dispatcher was at Jackson. Bentz's train left Jackson at 2:40 a. m. on the morning of June 10, 1897, and proceeded north. It approached Milan about 20 minutes after 4. The engineer blew for the semaphore signal, which was set at red, and failed to receive the white signal in reply. He blew again when about 200 feet from it, and the trainmen testify that then the red signal turned to white. The telegraph operator denies that the signal was whistled for, or that the white light was signaled. However this may be, the train then proceeded north from Milan towards Martin, which was the next telegraph station open at night, and at a point two miles north of Russell, in going round a curve, collided with train No. 81, coming south. Bentz jumped to save his life, and was killed by the fall. The collision took place about 5:20 in the morning. At 4:30 that morning freight train 81 was reported to the train dispatcher as being at Martin, and orders for its proceeding were asked for. Thereupon the train dispatcher asked Loving, the telegraph operator at Milan, over the wire, whether train 84 had come in sight. Loving replied that it had not passed, and was not in sight. Thereupon the train dispatcher sent identical orders, one to Martin, to 81, and one to Milan, to 84, directing that the two trains meet at Idlewild, a point 10 or 12 miles north of Milan and 7 miles south of Russell. This order was acknowledged (or "O. K.'d," as the phrase is) by the telegraph operators at Milan and at Martin. The theory of the defendant company is that Bentz and the conductor in charge of his train ran through Milan in spite of the red signal and without waiting for the white light. At the conclusion of all the evidence, counsel for the defendant requested the court to charge the jury that from the evidence introduced it was apparent that the accident was caused either by the negligence of the telegraph operator at Milan, who was a fellow servant of Bentz, or by Bentz's own negligence, and that they must therefore return their verdict for the defendant. This the court refused. The jury, under the charge of the court, returned a verdict for plaintiff, on which judgment was entered.

C. G. Bond, for plaintiff in error.

S. D. Hays, for defendant in error.

Before TAFT, LURTON, and DAY, Circuit Judges.

TAFT, Circuit Judge (after stating the facts as above). If Bentz disregarded the red signal, and passed Milan without waiting until the white signal was shown him, it is not disputed that the resulting collision would have been due to his negligence, and that he could not recover from the company. The only other possible theory of the accident is that the telegraph operator gave the white signal to Bentz, the engineer, as the men on Bentz's train testify he did, and that, when he was asked a few minutes later by the train dispatcher at Jackson whether the train had passed, he negligently forgot the fact. If he had then remembered that Bentz's train had passed his station 15 minutes before, and had so informed the operator, it would have been entirely within the power of the train dispatcher either to hold 81 at Martin, or to permit it to run on to Greenfield, a distance of nine miles, and there wait the coming of Bentz's train. The failure of the telegraph operator to keep the train dispatcher advised as to the whereabouts of Bentz's train was the cause of the collision, and the only cause, unless Bentz contributed to it by his own negligence, as already explained. We have already decided in this court, in the case of Railroad Co. v. Camp, 31 U. S. App. 213, 13 C. C. A. 233, 65 Fed. 952, that at the common law (and there is no statute in Tennessee) a telegraph operator is the fellow servant of an engineer. See, also, Railroad Co. v. Clark,

16 U. S. App. 17, 6 C. C. A. 281, 57 Fed. 125; Slater v. Jewett, 85 N. Y. 61; Sutherland v. Railroad Co., 125 N. Y. 737, 26 N. E. 609; Reiser v. Pennsylvania Co., 152 Pa. St. 38, 25 Atl. 175; McKaig v. Railroad Co. (C. C.) 42 Fed. 288. The fact that the supreme court of Tennessee, in the case of Railroad Co. v. De Armond, 86 Tenn. 73, 5 S. W. 600, had taken another view of this question, under the department theory of fellow servants, which prevails in the state courts of that state, was noted in the Camp Case, and the view of the Tennessee court was dissented from. If the De Armond Case is the authority which was followed by the learned judge at the circuit, the Camp Case could not have been called to his attention. The jury, on the facts of the case, because the injury occurred through the negligence of a fellow servant of the plaintiff's husband, should have been directed to bring in a verdict for the defendant. The judgment of the court below is reversed, with directions to order a new trial.

(99 Fed. 663.)

TRAVELERS' INS. CO. v. MAYOR, ETC., OF JOHNSON CITY.

(Circuit Court of Appeals, Sixth Circuit. February 12, 1900.)

No. 732.

MUNICIPAL CORPORATIONS-VOID BONDS-RECOVERY BY PURCHASER ON QUANTUM VALEBAT.

A purchaser, in the market, of negotiable bonds payable to bearer, and unindorsed, issued by a city to a railroad company of another state, to whom it had no power to issue the bonds, in payment of a subscription to the company's stock, which it had no power to make, although it had power to subscribe for the stock of a domestic corporation, and to issue its bonds in payment therefor, cannot recover from the city the amount paid for such bonds as money had and received to the city's use and benefit on the ground that the stock had been delivered and retained, and the railroad and a depot constructed, which were the conditions upon which the subscription was made. In such case the stock was void in the hands of the city for want of power on its part to become a stockholder; and the railroad and depot, built on lands owned by the company, did not become property of the city, or confer upon it any such direct benefits as could raise an implied promise to pay therefor independently of its void contract.

In Error to the Circuit Court of the United States for the Eastern District of Tennessee.

This was a suit at law by the Travelers' Insurance Company to recover from the mayor and aldermen of Johnson City $50,000 and interest from January 5, 1892, as money had and received to the use of the defendants. The case made in the declaration was: That under the act of the general assembly of the state of Tennessee, providing: "That any county, incorporated city or town, may become a stockholder in any railroad company incorporated under the general laws of this state, to an amount not exceeding, in the aggregate, one-tenth of its taxable property, by complying with the requirements of this act" (Laws 1887, c. 3, § 1), and which provided in its twelfth section: "That when such subscription shall become due and payable, as provided in section eleven of this act, the county, or city, or town making the subscription shall make and execute its coupon bonds for the amount of such subscription, payable not more than twenty years after date, and bearing interest at such

rate as may be agreed upon, not exceeding six per cent. per annum, payable semi-annually, and deliver the same to the railroad company, provided, that such county, city or town may pay such subscription in cash at maturity, if it shall so elect," the Charleston, Cincinnati & Chicago Railroad Company, on December 30, 1890, applied to the defendant in error to subscribe $75,000 to the capital stock of said railroad company, the subscription to be paid in the coupon bonds of the defendant. That an election was held on January 30, 1890. pursuant to law, and under orders of the mayor and board of aldermen. That the sheriff made his return, showing that more than three-fourths of the electors voting voted for the subscription, and that thereupon the defendant made the subscription accordingly, and resolved that it be paid in coupon bonds of the town. That the bonds issued were in the form following:

"State of Tennessee, County of Washington, Corporation of Johnson City: "Know all men by these presents, that the corporation of Johnson City, in the county of Washington, state of Tennessee, acknowledges itself indebted and firmly bound to the Charleston, Cincinnati & Chicago Railroad Company. or bearer, in the sum of one thousand dollars, lawful money of the United States of America, and for value received hereby promises to pay to said company, or bearer, the sum of one thousand dollars at the National Bank of Deposit in the city of New York, state of New York, in twenty years after date, with interest thereon from date hereof at the rate of six per cent. per annum, payable semiannually, on the first days of May and November in each and every year, on presentation and delivery of coupons hereto annexed, and duly signed by the recorder of Johnson City; for the performance of all which 'the taxable property of said Johnson City is irrevocably pledged, pursuant to an act of the general assembly of the state of Tennessee, entitled 'An act to enable the counties and incorporated cities and towns to subscribe to the capital stock of any railroad company incorporated under the general laws of this state, in the mode prescribed therein, and to provide for the payment of such subscriptions,' approved February 17, 1887, and also an act passed February 28, 1887, approved March 2, 1887, authorizing Johnson City to issue bonds to an amount not exceeding seventy-five thousand dollars. This bond is one of a series of seventy-five bonds of like tenor, date, and amount herewith, issued by virtue of said above-named statutes, and in issuing same all of the provisions and requirements of each of said statutes have been strictly fulfilled and complied with. In witness whereof the mayor and the recorder of the corporation of Johnson City, Tennessee, have hereunto signed their names, and the same has been countersigned by the board of trustees of the sinking fund of said town, at said Johnson City, on the first day of May, A. D.

1890.

66

"Mayor.

66

"Recorder.

"Board of Trustees of the Sinking Fund."

That by the contract of subscription the bonds were to be deposited in the First National Bank in escrow, to be delivered to the railroad company, or its order, upon presentation of a certificate signed by the mayor of the city and the chief engineer of the railroad company. That the three conditions of the subscription, which were the delivery of the stock, the construction of the railroad, and the erection of a railway station, had been complied with. That the railroad and station were completed, and the stock issued in accordance with the contract, and the bonds were delivered to the railroad company upon proper certificate. That the stock issued to the amount of $75,000 has ever since been held by the defendants. That, soon after the delivery of the bonds by the city to the railroad company, the same were put by the railroad company upon the market for sale, and the plaintiff, relying upon the representations made on the face of the bonds that all the requirements of law had been strictly complied with in their issue, purchased $50,000 of the bonds, and

paid $50.000 in lawful money for the same without notice of any infirmity in the bonds.

The declaration further shows that, after paying the interest coupons on these bonds for several years, the defendants filed a bill in the chancery court of Washington county, Tenn., against the railroad company and the plaintiffs and others, in which it sought to have the bonds declared void on the various grounds therein set up; that upon a final hearing of the cause the chancellor entered a decree, on March 13, 1895, adjudging the bonds to be void in the hands of bona fide purchasers, upon the ground that the Charleston, Cincinnati & Chicago Railroad Company was not a corporation under the laws of the state of Tennessee, but was a South Carolina corporation; and that $75,000 exceeded one-tenth of the taxable property of Johnson City, in violation of the terms of said statutes authorizing the subscription. On appeal this was affirmed by the court of chancery appeals. Plaintiff then appealed to the supreme court of Tennessee, which also affirmed the decree of the chancellor (44 S. W. 670), adjudging that said bonds were invalid and void upon the grounds stated, and enjoining their collection. The declaration avers further that the corporation to which this subscription was made was a Tennessee corporation, and not a corporation of South Carolina; that in fact there were two corporations, and that the application made by the railroad company for the subscription was made in the name of the Tennessee corporation. The bill further avers that the defendants were estopped by their recitals to deny that this was a Tennessee corporation, or that the statutory limit of indebtedness had been exceeded. The prayer of the bill is for the amount paid by plaintiff for the bonds, on the ground that the defendants have received this amount in value to their benefit. The declaration was demurred to on the ground that it did not state a cause of action, and the demurrer was sustained. The plaintiff not wishing to plead further, judgment was entered for the defendants, and that judgment is now here for review.

T. S. Webb, for plaintiff in error.

Isaac Harr (Burrow Bros., on the brief), for defendants in error.
Before TAFT, LURTON, and DAY, Circuit Judges.

TAFT, Circuit Judge (after stating the facts as above). The averments of the declaration that the railroad company whose stock was subscribed for by the defendants was a Tennessee corporation, and that the plaintiff was a bona fide purchaser for value, without notice of any infirmity in the bonds, and that the defendants were estopped by the recitals in their bonds from denying that the railroad company was a Tennessee corporation, lend no legal force to it, in the face of its other averments, which show that those very questions of fact and law were decided adversely to the plaintiff in an action to which the plaintiff and defendants were adversary parties, and in which the question of the validity of these bonds was the sole matter at issue. The question for our consideration here is, therefore, whether one who, for full value, purchases in the market negotiable bonds payable to bearer, and unindorsed, issued by a municipal corporation to a railroad company of another state, to whom it has no power to issue the bonds, in payment of a subscription to the company's stock to which it has no power to make a subscription, after the railroad has been built, and the depot has been constructed on the company's ground, and the certificates for the stock subscribed for have been delivered to the municipal corporation, all in accordance with the condition of the subscription agreement, may recover from the municipal corporation the money paid by it in open market for the bonds, on the ground that that amount

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