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ing is used for shipments of street car mo-, and must be under unified control. Order tors, another for slate and marble, another and method must reign. Conflict between enfor pipe and copper, another for sand, coal, gines on the standard tracks and those on and fuel oil, another for pig iron, coal and the narrow tracks must be avoided. Engines coke, another for wire and cable; others are hauling cars for loading or unloading must used for other specific purposes, and still not collide with engines hauling cars for others for miscellaneous freight. The de other and unrelated purposes. The coming fendant says that the distribution among and going of cars must be accommodated, not these buildings must be made by the plaintiff to the exigencies of railroad operations, but without extra charge in fulfillment of its to the centralized administration of all the duty of delivery under a contract of trans- parts of a vast and interdependent industry. portation.

If the plaintiff attempted to distribute its We come back then to the test, which, cars immediately upon arrival, and sent its vague as it is, remains the only safe one, and engines into the streets that interlace the we ask ourselves whether, in the light of all defendant's plant, it would, in effect, take the circumstances, such a form of delivery possession of the works, and put the defendis customary or reasonable. That it is not ant out of business. That is conceded, incustomary is established, we think, by uncon- deed, in one of the opinions at the Appeltroverted evidence, "Spotting” cars upon late Division. The defendant has been able short and direct sidings is a service that has to distribute freight throughout its plant, little kinship to these intricate maneuvers without suspending its business and with. designed not to reach an industry, but to out peril to its 15,000 workmen, by the use promote the convenient distribution of wares of engines, not at irregular hours, but conamong the subdivisions of an industry. The stantly, day and night, by subordinating the difference may be one of degree, but here, as use of its tracks to the needs of a unified so often in the law, such differences are scheme and the dominion of a single will. vital. Rideout v. Knox, 148 Mass. 368, 19 | All this the defendant may properly do, beN. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560; cause that is its business. It cannot put that Continental Sec. Co. v. N. Y, C. & H. R. R. burden, however, upon the carrier. To adopt R. Co., 217 N. Y. 119, 125, 111 N. E. 484. and maintain this elaborate system of opWe find, accordingly, that whenever these erations on the defendant's private tracks complicated shifts and transfers are made by is not to add a minor incident to carriage shippers or consignees within their own along the plaintiff's right of way. It is to plants, they are made at their own cost and subordinate the operation of the business of without allowance from the carrier. That is the carrier to the needs, the economies, the true of the plant of the American Locomotive internal administration of the business of Works, the only other plant at Schenectady the shipper. The engines that move within which involves these intramural operations. this plant are not doing work that the plainIt is true of the plant of the Solvay Process tiff ought to do, or effectively could do. They Company at Syracuse. It is true of the are doing the defendant's work. They are plant of the Fleischmann Company at Peeks- "plant facilities." kill. It is true of many other plants enu This distinction between the instrumentali. merated in the record.

ties of transportation and those of internal The defendant's standard of delivery does management was drawn by the Interstate not conform, therefore, to the standard of Commerce Commission when the defendant's custom. We think it fails also when we test petition for an allowance was before it. Genit by the standard of reason, A railroad's eral Electric Co. v. N. Y. C. & H. R. R. R. Co., duty to carry is a duty to carry over its right 14 Interst. Com. R. 237. It has been mainof way. Private sidings, owned and main- tained in many other cases. In Solvay Protained by shippers, do not constitute the right cess Co. v. D., L. & W. R. R. Co., 14 Interst. of way, and the use that the carrier may Com. R. 246, it was applied to the switching be compelled to make of them is subordinate of cars within the plant of the Solvay Process and incidental to the fulfillment of its pri- Company. In Crane Iron Works v. United mary function of carriage along its route. States, 17 Interst. Com. R. 514, it was apReasonable delivery may involve trifling de- plied to like operations within the plant of partures from the route, as where the car- the Crane Iron Works. The order of the rier's engines, after switching cars upon a Commission in that case was affirmed by the siding, move them a short distance to the Commerce Court (Crane v. U. S., 209 Fed. doors or platforms of a factory. Industrial 238, 242); and the distinction drawn by spurs, within the switching limits designated the Commission in the General Electric Case by the carrier, are to be regarded, indeed, for and the Solvay Process Case "between those many purposes, as an extension of the ter- operations which constitute a plant facility minals. Los Angeles Switching Case, 234 U. and the legitimate services of a common carS. 294, 34 Sup. Ct. 814, 58 L. Ed. 1319. But rier" was said “to express a sound and reasonable delivery does not involve the car wholesome principle." In the Industrial rier's co-operation in the division of labor Railway Cases, 29 Interst. Com. R. 212, 230, and of functions between the sections of a Id., 34 Interst. Com. R. 596, 601, the Com


pointed out (Id., 29 Interst. Com. R. at 235), balance the benefit by assuming expenses that they were in harmony with the prevail- that normally would fall upon the customer. ing practice in England and in Germany. The Supreme Court, speaking of the InterSee, also, Karl Lumber Co. v. C. of G. Ry. state Commerce Law, has said that it "does Co., 20 Interst. Com. R. 450, 455; Mfrs. Ry. not attempt to equalize fortune, opportuniCo. v. St. L., M. & S. Ry. Co., 21 Interst. ties abilities." Interstate Commerce Com. R. 304, 315; Chicago & Alton R. R. Co. Comm. v. Diffenbaugh, 222 U. S. 42, 46, 32 v. U. S., 156 Fed. 558, 84 C. C. A. 324, 26 Sup. Ct. 22, 24 (56 L. Ed. 83). That is as L. R. A. (N. S.) 551.

true when fortune and opportunities help the We do not have to limit ourselves, how-carrier as it is when they help the shipper. ever, to the decisions of the Commission and

We are asked in the opinion of the Appelthe Commerce Court. We find the same late Division whether it can be “the policy distinction between plant facilities and true of the nation to prevent the most economical agencies of transportation in the decisions production of manufactured goods or to comof the Supreme Court. Sometimes the appli- pel the defendant to cart its vast shipments cation of the distinction by the Commission from cars placed upon the plaintiff's own has been disapproved, but always the validity side tracks remote from defendant's works." of the distinction has been assumed, and the The assumed alternative is an unreal one. General Electric and Solvay Process Cases The question is not whether switching within have been cited to illustrate its meaning the plant shall cease. The question is, who This was done in the Tap Line Cases, 234 U. shall pay for it? To compel the plaintiff to S. 1, 23, 34 Sup. Ct. 741, 746 (58 L. Ed. pay by deduction from the regular rates for 1185). Day, J., writing for the court, ex- any service not a part of transportation is plained the meaning of plant facilities by to prefer the defendant over others. Armour reference to the General Electric and Solvay Packing Co. v. U. S., 209 U. S. 56, 72, 28 Process Cases, and, commenting on them, Sup. Ct. 428, 52 L. Ed. 681. It is not the said:

policy of the nation to place useless clogs “These systems of internal trackage were not upon commerce, but it is the policy of the common carriers, and, however extensive, were intended to and did furnish service for the plants nation that preferences shall be impossible. which owned and operated them."

[5] The defendant makes the point that See, also, opinion of the Commerce Court a recovery should, in any event, be allowed in that case (Louisiana & R. Ry. Co. v. U. S. for services rendered in connection with in209 Fed. 244, 257). Again, in the Los Angeles trastate shipments. This clearly is not so Switching Case, 234 U. S. 294, 310, 34 Sup. of shipments made since the enactment of Ct. 814, 818 (58 L. Ed. 1319), Hughes, J., the Public Service Commissions Law.

But writing for the court, said that the receipt we think there can be no recovery even for and delivery of goods at plants located upon earlier shipments. Root v. L. I. R. R. Co., spurs or side tracks was sometimes a distinct 114 N. Y. 300, 21 N. E. 403, 4 L. R. A. 331, 11 service; and distinguished from the case be- Am. St. Rep. 643. The defendant cannot fore him "cases of an interior movement of build its rights upon the contract, for the plant traffic to and from various parts of the contract did not fix the term of its duration, establishment, and of deliveries through a and the plaintiff has canceled it. If the desystem of interior switching tracks construct- fendant can recover at all, even for intrastate ed as plant facilities.” Spur tracks, which shipments, the basis of the recovery must be though leading to a single plant, are in real- a quantum meruit. But, to warrant a reity terminal facilities are subject to one rule; covery upon that basis, the work done by the spur tracks, which are in reality plant facile defendant must be work which ought to have ities, are subject to another.

been done by the plaintiff as part of the task The law has attempted “to shut the door of carriage. We have already stated our to all contrivances in violation of its provi- reasons for the conclusion that this was not sions against preferences and discrimina- the true nature of the service. There is tions." Southern Ry. Co. v. Prescott, 240 U. nothing, therefore, on which to build the imS. 632, 638, 36 Sup. Ct. 469, 472 (60 L. Ed. plication by law of a promise of reimburse836). The door to all those abuses would be ment. opened if a railroad could be made without Other objections to the counterclaim have extra charge to participate at its own ex- been argued by the plaintiff. The point is pense in the internal management of the busi- made that the allowance, if otherwise legal, ness of shippers and consignees. It is no ought to have been published (Mitchell Coal answer to say that the maintenance of the & Coke Co. v. Penn. R. R. Co., 230 U. S. 247, storage tracks relieves the carrier of the 261, 33 Sup. Ct. 916, 57 L. Ed. 1472), and necessity of increasing its own terminals that the ruling of the Interstate Commerce facilities, which would be insufficient in their Commission, dismissing the defendant's petipresent form to accommodate the defendant's tion, is conclusive until annulled. The detertraffic. That is true, in greater or less de- mination of those questions is not necessary gree, of every siding along the route. The in the disposition of this appeal. carrier is helped because the factories are The judgment of the Appellate Division dear the tracks. It is not bound to counter should be reversed, and that of the Trial

Term affirmed, with costs in the Appellate as defined by that act. We have recently Division and in this court.

held that the two methods of review of the

decision of the Industrial Board provided by WILLARD BARTLETT, C. J., and CHASE, section 19 of the Workmen's Compensation COLLIN, CUDDEBACK, and POUND, JJ., Act are exclusive, and that the circuit court, concur.

on an application for a judgment upon an Judgment reversed, etc.

award, cannot inquire into the legality of the Industrial Board's action. Fitt v. Central

Illinois Public Service Co., 273 Ill. 617, 113 (275 Ill. 290)

N. E. 155. BERNSTEIN V. BROTHMAN. (No. 10777.) The circuit court properly entered judg(Supreme Court of Illinois. Oct. 24, 1916.)ment on the award, and this judgment is


Judgment aiirmed. STATUTE.

The two methods of review of the decision of the Industrial Board provided by the Work

(275 Ill. 358) men's Compensation Act, $ 19 (Hurd's Rev. St. HEMPSTEAD et al. v. BROAD. (No. 10144.) 1915, 1916, c. 48, § 144), are exclusive, and the

(Supreme Court of Illinois. Oct. 24, 1916. circuit court, on application for judgment upon an award, cannot inquire into the legality

Rebearing Denied Dec. 7, 1916.) of the board's action.

1. GUARDIAN AND WARD 103 “SALE OF [Ed. Note. For other cases, see Master and REAL ESTATE''-WAIVER OF WRIT OF ERROR Servant, Dec. Dig. 417(5).)


Waiver by a guardian, in consideration of Error to Circuit Court, Cook County; Os. a money payment, of right to sue out a writ of car M. Torrison, Judge.

error to review a decree against the ward conProceedings under the Workmen's Com cerning his title

to real estate, is a sale of the

ward's real estate, which neither at common pensation Act by Morris Bernstein, opposed law nor under Hurd's Rev. St. 1915–16, c. 64, by Isaac Brothman. Compensation was $28, can be made without approval of the proawarded, judgment entered on the award in bate court. the circuit court, and to review the judgment and Ward, Cent. Dig. 88 378-381, 391; Dec.

(Ed. Note.-For other cases, see Guardian Brothman brings error. Judgment afirmed. Dig. 103.)

Morris K. Levinson, of Chicago, for plain. 2. ESTOPPEL Om54-IN Pais-KNOWLEDGE. tiff in error. Litzinger, McGurn & Reid, of

Knowledge of the facts is essential to an

estoppel in pais. Chicago, for defendant in error.

(Ed. Note.-For other cases, see Estoppel,


DUNN, J. On April 18, 1916, a judgment was entered in the circuit court of Cook

Error to Circuit Court, La Salle County ; county in favor of Morris Bernstein against

Edgar Eldredge, Judge. Isaac Brothman for $737.31 and costs, being

Suit by Carrie R. Hempstead and another the amount of an award of the Industrial against Charles Marks Broad and others. Board under the Workmen's Compensation There was a decree, and the named defend

Demurrer to pleas to asAct, together with attorney's fees and costs. ant brings error. The court certified that the cause in his opin- signment of error sustained. ion was one proper to be reviewed by the Su C. P. Gardner, of Chicago, for plaintiff in preme Court. Brothman has sued out a writ error. J. M. Riggs, of Winchester, and Robof error.

ert C. Morse and Nels F, Anderson, both of The decision of the Industrial Board was Kewanee, for defendants in error. rendered on September 2, 1915. The transcript of the record shows that Brothman CARTWRIGHT, J. The record of a suit sued out a writ of certiorari from the cir- in equity in the circuit court of La Salle cuit court of Cook county, but a review up-county in which Carrie R. Hempstead, execuon that writ was barred because it was not trix, and Fred H. Haskell, executor, of the sued out until February 8, 1916, more than last will and testament of Mary E. McIntire, 4 months after the 30 days allowed by the deceased, were complainants and Charles statute for that purpose. Upon the applica- Marks Broad and others were defendants, tion for judgment in the circuit court on the was filed in this court pursuant to a writ of award the plaintiff in error insisted that the error sued out by Charles Marks Broad. The award should be held void and that the In- record consists of the pleadings, orders, and dustrial Board was without jurisdiction, be decree. The bill as amended set forth the cause neither the decision of the board nor last will and testament of Mary E. McIntire, the testimony contained any evidence that deceased, by which devises and legacies were the plaintiff in error was an employer or the made and given to the daughters of the testadefendant in error an employé within the trix, and asked the court to construe the will meaning of the Workmen's Compensation and determine whether the daughters took Act, and the plaintiff in error was not en- estates in fee in the real estate devised to gaged in a hazardous occupation or business them, respectively, and in the personal prop

erty given to them, or life estates only. It | ly, and in case no sale was to be made they was alleged that the complainants were giv- should execute to him an absolute conveyance en full power and authority to sell all the of the real estate. real estate of wbich the testatrix died pos The assignment of errors, which stands as sessed and to execute full conveyances there the declaration of the plaintiff in error, for, in their discretion, and to distribute the charges that the court erred in finding and proceeds of the sale; that the complainants decreeing that the last will and testament had determined it was for the best interests of Mary E. McIntire vested in Grace M. Deof the estate that the property be sold and merath the fee of the real estate and an abthe proceeds paid over to the devisees in solute title to the personal property bequeathplace of the lands specifically devised; that ed to her, in not finding and decreeing that they were about to make sales as soon as a life estate was vested in Grace M. Demersuitable purchasers could be found at fair ath with remainder to the heirs of her body, values, and it would be their duty to make and not finding that the fee simple title to distribution of the proceeds according to the the property was vested in plaintiff in error, will; and that difficulties of construction had Charles Marks Broad. To that assignment arisen which were necessary to be deter- of errors Gertrude D. Demerath, as executris mined by the court. Among other devises of of the last will and testament of Nicholas real estate, the second paragraph of the will J. Demerath (now deceased), and in her own devised to Grace M, Demerath, daughter of right as residuary devisee and legatee under the testatrix, a farm near Walnut, in Bureau his will, and Le Roy Demerath, Peter Demercounty, described in the will, and by the ath, Katherine Demerath, Anna Demerath, same paragraph the daughter was given $7,- Margaret Demerath, Gertrude Demerath, 500. The sixth paragraph was as follows: Mary Abraham, Lena Leichty, and Peter P.

"It is my intention and express desire that Demerath, legatees under the said last will all property, of every kind and character, here and testament, filed three pleas. The first in bequeathed shall go directly to each of my said daughters as described herein and to the alleged that after the rendition of the decree heirs of their bodies or direct descendants, and plaintiff in rror, an infant of the age of 17 to no one else, and if either of my said daugh- years, was living with his father, Charles A. ters shall decease before inheriting under this Broad, in Cook county; that on July 15, will and leave surviving no children or descendants of children, such share shall go to 1910, his father, Charles A. Broad, was by the survivors of the legatees herein."

the probate court of Cook county appointed The bill alleged that Grace M. Demerath his guardian; and that the guardian receivwas married to the defendant Nicholas J. ed from Nicholas J. Demerath $6,000, paid Demerath, and that after the death of the to said guardian in consideration of a promtestatrix Grace M. Demerath died on ise and agreement of said Charles A. Broad, about December 8, 1908, intestate, leaving as guardian, that said decree should there Nicholas J. Demerath, her husband, and after remain a final adjudication, unquestionCharles Marks Broad, her son by her former ed and in full force as to the respective propmarriage, as her only heirs at law. Charles erty rights of the plaintiff in error and Marks Broad was an infant, and a guardian Nicholas J. Demerath in the subject-matter ad litem for him was appointed, who filed an adjudicated by the decree. The second plea answer alleging that he was an infant of the made the same allegation as the first, with age of 15 years, and therefore submitted his the additional averment that on August 21, rights and interests to the tender considera- 1914, after the plaintiff in error had attained tion and protection of the court. A decree the age of 21 years, his guardian paid to him was entered reciting that the cause

the said sum of $6,000, and the plaintiff in heard on the amended bill taken as confessed error accepted, retained, and appropriated by Nicholas J. Demerath and other defend the same to his own use. The third plea was ants, the answers of the guardians ad litem the same as the second, with the further alfor infant defendants, and proofs taken in legation that the plaintiff in error accepted, open court, and finding that the daughters of retained, and appropriated, and still retained the testatrix, including Grace M. 'Demerath, and appropriated, said sum to his own use, took a fee in the lands devised to them, re- with knowledge of the source from which his spectively, and the absolute title and owner-guardian obtained it, and with knowledge ship of personal property given to them; of the purpose for which it was paid to the that Grace M. Demerath at the time of her guardian. The plaintiff in error filed bis death was the owner in fee of the farm near replication to the third plea, denying that he the village of Walnut; that she left a last accepted, retained, and appropriated, or did will and testament, by which she devised a then retain and appropriate, to his own use, substantial legacy to her son, Charles Marks the said sum of $6,000, with knowledge of the Broad, and the balance of her estate to her source from which his guardian obtained it, husband, Nicholas J. Demerath. The decree and with knowledge of the purpose for which ordered that, if the executors should make it was paid to and received by the guardian, sale of the farm, they should, after payment and alleged that he brought into court the of the expenses of the sale, pay the proceeds said sum of $6.000, with interest thereon at to Nicholas J. Demerath, to be his absolute the legal rate from the date on which it was



received by the guardian, to abide the order, clusion is that the power of the guardian of the court. The defendants in error filed must be the same as in any other matter afrejoinders to the replication to the third plea, fecting the title of his ward's estate. The tendering issues of fact. The plaintiff in right to a review of the decree was a right error demurred to the first and second pleas, to a final and conclusive determination by and, the defendants in error having joined this court whether the plaintiff in error had in demurrer, the same was submitted to the a vested remainder in the real estate in court.

question, and neither at common law nor by [1] The question argued upon the demurrer our statute was a guardian authorized to conis whether a guardian has power, as such, vey or surrender any interest in the real eswithout the approval of the probate court tate of his ward without the approval of the or any proceeding in that court, to agree that probate court. Section 28 of chapter 64 of a decree determining the rights of his ward the Revised Statutes permits the guardian in real estate and finding that another has to apply to the court for leave to sell real title in fee simple to such real estate, for a estate of his ward, and a guardian has no consideration paid to the guardian, shall be power to sell such real estate unless authorfinal and conclusive against the ward. ized by the court. A sale made by a guardian

At the common law a guardian had power without the direction and sanction of the to sell and dispose of the personal property court is void. Mason v. Wait, 4 Scam. 127. of his ward without an order of court, provid. The statute of wills limits the power of the ed he acted in good faith (Schmidt v. Shaver, guardian to mortgage or lease real estate for 196 Ill. 108, 69 N. E. 655, 89 Am. St. Rep. a longer term than until the ward reaches 250) and the common-law powers of guard his majority, and a mortgage in fee executed ians still exist in this state so far as they by a guardian upon his ward's land is void are not inconsistent with any statute (Bond so far as the interests of the ward are inv. Lockwood, 33 Ill. 212). To bring the case volved. Merritt v. Simpson, 41 Ill. 391. The within that rule counsel for the defendants guardian has no power to sell his ward's in error contend that what the guardian did land, without an order of the probate court, was to waive, release, or surrender, for a for the purpose of raising funds for the consideration of $6,000, the right to sue out ward's support and education, and such a sale a writ of error; that such right is a right of by a guardian is absolutely void. Cooter v. action and personal property; and that the Dearborn, 115 111. 509, 4 N. E. 388. A right agreement did not come within section 17 to begin an action by suing out a writ of erof chapter 64 of the Revised Statutes, re ror or otherwise may be a personal right, quiring the approval of the probate court. but if it is a right by which real estate is to That section provides that the guardian shall be recovered or secured to a ward, an agreesettle all accounts of his ward, and demand, ment not to exercise the right and that the sue for, and receive in his own name, as ward shall not exercise it is a disposition guardian, all the personal property of and of a right concerning real estate. If there demands due the ward, or, with the approba- is a decree against a ward concerning his tion of the court, compound for the same and title to real estate, and the guardian relingive a discharge to the debtor upon receiving quishes the right to a review and agrees that a fair and just dividend of his estate and the decree shall be a final adjudication of effects, and the view of counsel for the plain the ward's rights, his act is as much a mattiff in error is that the agreement came with ter pertaining to real estate as though the in that section, restricting the power of a agreement was not to take effect as a bar guardian to compound for demands due his to a writ of error, which was merely a methward. So far as the statute prescribes the od of obtaining the review. There can be no powers and duties of guardians it super- difference between the power of a guardian sedes the common law, and the section in to consent, for a consideration, at the time a question was interpreted and applied in Hay- decree is entered, that there shall be a findes v. Massachusetts Mutual Life Ins. Co., ing against his ward concerning the title to 125 Ill. 626, 18 N. E. 322, 1 L. R. A. 303, real estate, and a like agreement made after. Knights Templars' and Masons' Life Indem- ward that the decree shall be final. The efnity Co. v. Crayton, 209 Ill. 550, 70 N. E. fect is precisely the same, because a decree 1066, and Schmidt v. Shaver, supra. Those entered by consent cannot be appealed from were all cases of money demands due the and error cannot be assigned upon it. Armward, and the argument in support of the strong V. Cooper, 11 Ill. 540; Krieger v. pleas is that the right to sue out a writ of Krieger, 221 III. 479, 77 N. E. 909. Certainerror is not a demand, and therefore not ly the guardian of Charles Marks Broad within the terms of the statute. If that is would have had no right to consent to the so, it does not reach the question of the pow- decree when entered, and thereby waive the er of the guardian to make the alleged agree-right to an appeal or writ of error, and it ment, since the right to sue out a writ of inust be held that he could not afterward do error and secure a review of a judgment or the same thing in a different way. decree may concern personal property or real [2] It is essential to an estoppel in pais

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