Anderson v. West Chicago St. R. Co.

• Decision Date: 16 December 1902
• Parties: ANDERSON v. WEST CHICAGO ST. R. CO.
• Court: Illinois Supreme Court

200 Ill. 329

65 N.E. 717

ANDERSON

v.WEST CHICAGO ST. R. CO.

Supreme Court of Illinois.

Dec. 16, 1902.

Appeal from appellate court, First district.

Action by Alfred Anderson against the West Chicago Street Railroad Company. From a judgment of the appellate court (102 Ill. App. 310) reversing a judgment for plaintiff, he appeals. Affirmed.

Black & Black and A. B. Chilcoat, for appellant.

John A. Rose and Louis Boisot (W. W. Gurley, of counsel), for appellee.

Alfred Anderson, the appellant, brought suit in the superior court of Cook county against the appellee, the West Chicago Street Railroad Company, for damages for a personal injury received by him through its alleged negligence. A trial was had, resulting in a verdict for him for $1,250 damages, on which judgment was entered. On appeal to the appellate court the judgment of the superior court was reversed. On the trial below the appellee gave in evidence the record in the case of Anderson v. Railway Co., theretofore tried in the superior court, which resulted in a verdict of not guilty, and judgment for costs against plaintiff. The facts, as found by the appellate court, are that the Cicero & Proviso Street Railway Company is the lessor, and appellee, the West Chicago Street Railroad Company, is the lessee, of the street railway on which the accident occurred, and that the injury and negligence charged are the same in both suits. The conclusion of the appellate court from these facts is that the lessor and lessee sustained the relation of principal and agent to each other, and that the determination in the suit against the principal is res judicata in the suit against the agent, and a bar to its further prosecution, and that hence the instruction asked by appellee to find for the defendant should have been given.

CARTER, J. (after stating the facts).

The only question argued by counsel is the effect of the judgment in the suit by appellant against the Cicero & Proviso Street Railway Company as an estoppel in this case. That each of the two street railway companies was liable for an injury resulting from the negligent operation of the road, and sustained the relation of principal and agent, is conclusively settled. It is the settled law of this state that when 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 other corporations which the proprietary company authorizes or permits to use its tracks, the company owning the railway tracks, and franchise will also be liable (Railroad Co. v. Meech, 163 Ill. 305, 45 N. E. 290), and for this purpose the company whom it permits to use its tracks, and its servants and employés, will be regarded as the servants and agents of the owner company (Pennsylvania Co. v. Ellett, 132 Ill. 654, 24 N. E. 559), and no other negligence than that of the lessee need be alleged or proved to fix the liability of the owner. In other words, in the case of a leasing of a railroad by one company to another company, the negligence or tort of the lessee company in operating its road is by the law of this state imputed to the lessor company, because it cannot absolve itself from the responsibility imposed by law upon it to operate its road so as to do no unnecessary damage to the person or property of others. Ellett Case, supra. The relation between them, so far as it has reference to such damage, is not that of landlord and tenant, but that of principal and agent, or master and servant. Both being liable to the party injured, such party could sue them both in the same action, or sue each one separately, but if one was not guilty of the tort the other one could not be. It is not a case where the allegation is that two different parties have committed a tort to the person or property of the plaintiff, and thus each one of them would be individually liable, and where it might turn out on the trial that one of the parties was innocent of any actionable wrong. Such could never be the case where the negligence complained of is the negligence of the company operating the road. Its negligence is conclusively presumed to be the negligence of the owner. There is no question of fact to be tried whether the owner company is liable for the negligence of the lessee; it is so liable under the law. It must follow, then, that if, in a suit brought against the lessor in which the tort complained of is in fact the tort of the lessee, a verdict of not guilty is rendered,-that is, that there was no actionable wrong committed against the plaintiff by the lessor,-no actionable wrong could have been committed against him by the lessee in the premises, for it is the lessee's wrong that in these cases constitutes the basis of the action against the lessor.

In Railway Co. v. Goldberg, 2 Ill. App. 228, where the agent of the company had been before sued for a trespass and found not guilty, and such judgment was interposed as a bar, the court said (page 234): ‘Where the real actor, none the less liable personally because acting for another, is not guilty, it necessarily follows that the party for whom he acted cannot be.’ The court referred to Emery v. Fowler, 39 Me. 326, 63 Am. Dec. 627, as authority. In the Emery Case the court said: ‘To permit a person to commence an action against the principal and to prove the acts alleged to be trespasses to have been committed by his servant acting by his orders, and to fail upon the merits to recover, and subsequently to commence an action against that servant and to prove and rely upon the same acts as a trespass, is to allow him to have two trials for the same cause of action, to be proved by the same testimony. In such cases the technical rule that a judgment can only be admitted between the parties to the record or their privies expands so far as to admit it when the same question has been decided and judgment rendered between parties responsible for the acts of others.’

In Goodrich v. Hanson, 33 Ill. 499, which was trover brought by Goodrich, the plaintiff in error sought to introduce in evidence a deposition taken in a suit in replevin for the same property brought by defendants in error against Hammer, the agent of Goodrich. Hammer pleaded property in Goodrich. The suit was, however, dismissed. The court said (page 507): ‘Had that issue been tried and found in favor of Hammer, it would have been conclusive upon all parties to that suit. Had such a finding resulted from a trial, and Hammer had restored the property to plaintiff in error, it would have barred a recovery by defendants in error of this property from plaintiff in error.’ The court held the deposition should have been admitted, and placed its holding directly upon the ground that Hammer was the agent of Goodrich, and that the parties to the two suits, though not nominally the same upon the record, were the same in interest.

In Railroad Co. v. Hutchins, 34 Ill. 108, the court said: ‘It does not matter that the owner may elect to sue either the driver or company, because, when a jury have found in an action against the company that there was no negligence, it is a bar to a recovery against the agent,’-and accordingly...