Blowers v. Southern Ry.

• Decision Date: 18 April 1906
• Citation: 54 S.E. 368,74 S.C. 221
• Parties: BLOWERS v. SOUTHERN RY.
• Court: South Carolina Supreme Court

54 S.E. 368

74 S.C. 221

BLOWERS v. SOUTHERN RY.

Supreme Court of South Carolina

April 18, 1906

Appeal from Common Pleas Circuit Court of Spartanburg County; Watts Judge.

Action by R. D. Bowers against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

C. P Sanders, for appellant. Johnson & Nash, for respondent.

JONES J.

The plaintiff in this action sought compensation upon an implied contract for services rendered by plaintiff to defendant in transferring mail matter from one train to another at Spartanburg, S. C., from July 1, 1894, to July 1, 1900 alleged to be reasonably worth $1,990. The jury rendered a verdict in favor of plaintiff for $1,750, and from the judgment thereon defendant now appeals.

It appears that during the said period plaintiff was a mail messenger in the employ of the United States government, and as such it was his duty to carry the mail to and fro between the trains and post office; but it was not his duty to transfer the mail from one train to another, as this fell within the contract of the defendant company with the government to transport the mail. The plaintiff, acting under the belief that it was his duty to transfer the mail from train to train, performed these services during the time alleged without demanding or receiving any compensation therefor from the defendant company. Upon discovering that he had been doing the work of defendant company, he demanded pay, and upon defendant's refusal brought this action March 31, 1903. This is the second appeal. On the former appeal (50 S.E. 19) by plaintiff from an order of nonsuit, wherein this court granted a new trial, the principle was announced that "where one who is under no legal or moral obligation to do so renders services to another at his request, or with his knowledge and acquiescence, the law raises an implied promise on the part of the person receiving the services to pay what they are reasonably worth." Ex parte Aycock, 34 S.C. 256, 13 S.E. 450. One of the vital points of the controversy on the second trial, therefore, was whether the services were rendered with the knowledge and acquiescence of the defendant. The first and second exceptions, relating to the admissibility of testimony, are as follows:

"In allowing the plaintiff, against the objections of the defendant, to testify to the following facts: (a) That he did the work of transferring the mail at Spartanburg under the direction and supervision of W. P. Irwin, agent of the Southern Railway, and to answer the question, 'Under whose supervision or direction did you do the work as transfer clerk?' (b) That Mr. W. P. Irwin was the agent of the Southern Railway during the whole of the period between 1894 and 1900. (c) That he learned from Mr. W. P. Irwin, agent of the Southern Railway, that it was the duty of the railroad company to do this work. (d) That subsequent to the 1st of July, 1900, after the plaintiff had quit the work, that Mr. Irwin told him that it was the duty of the railroad company to do this work. (e) That the railroad company paid the plaintiff for doing this work after July, 1900, and after the plaintiff had lost his job as mail messenger and at some subsequent time had resumed these duties as mail messenger. (f) In allowing plaintiff to testify to transactions and conversations had between himself and Mr. W. P. Irwin, agent of the Southern Railway Company, after July, 1900, and in reference to the duties of the railroad company in transferring the mail, and in reference to the employment of plaintiff to act as transfer clerk at a time subsequent to July, 1900. The errors being, as it is respectfully submitted: (1) In that this testimony was incompetent, in that no authority was shown on the part of Mr. Irwin to direct plaintiff to do this work or to make any statements, or to bind the railroad company in any way in reference to this work or to make any contract concerning it. (2) That these conversations and transactions, not being a part of the res gestae, were hence incompetent. (3) That these conversations and statements between Irwin and the plaintiff were hearsay and hence incompetent.

(2) In allowing the plaintiff to testify that complaints came to him through Mr. Irwin in reference to matters concerning the handling of the mail at Spartanburg. The error being, as it is respectfully submitted, that this was incompetent, in that it was not shown that there was any authority on the part of Mr. Irwin to bind the railroad, or that Mr. Irwin was talking to Blowers or making complaint to Mr. Blowers as a servant of the railroad, but, on the contrary, that at said time it was understood by both Blowers and Irwin that Blowers was in the employ of the government."

(a) With reference to this specification the circuit judge ruled that the witness had a right to say under whose direction he performed the work, if he knew of his own knowledge that the person referred to was the agent of the defendant; but whether or not that person acted within the scope of his authority was a different proposition. It is now the accepted general rule that the fact that one is the agent of a corporation may be proven by parol as in the case of private persons. 3 Elliott on Ev. § 1629. Where agency may be shown by parol, one having knowledge of the fact of agency may testify to the fact. 3 Elliott on Ev. § 1638. The witness answered that the work was done under the supervision and direction of "W. P. Irwin, agent of Southern Railway." The question and answer under the qualification stated by the court were properly admitted.

(b) There was really no contest that W. P. Irwin was station agent for defendant company at Spartanburg, S. C., during the period mentioned. W. P. Rider, who was superintendent of the defendant railroad between Charlotte and Spartanburg from July, 1894, to July, 1900, testified for defendant that W. P. Irwin was the principal or chief representative of the defendant at Spartanburg; that he was station agent, responsible for the organization of his station appertaining to the receiving and delivery of freight; that to a certain extent, but not altogether, he had charge of all employés at that station, but that he was not authorized to employ a transfer clerk for the mail; that, when a complaint was lodged with him as to misplaced mail pouches at the Spartanburg station, he would write to W. P. Irwin as the best channel to reach the person responsible. W. P. Irwin testified that he had been agent for the defendant at Spartanburg depot for nearly 30 years up to 1903; that he had no authority over plaintiff, and did not exercise any; that prior to July, 1900, he had no knowledge that it was the duty of the railroad company to transfer the mail; that he acquiesced in the plaintiff doing the work under the belief that he was doing it for the government; that the defendant company furnished a room wherein to place the mail pouches; that when irregularities occurred with reference to the misplacing or missending of mail pouches, and complaint was lodged with the superintendent, the superintendent would send to him for a report, and that he would go to plaintiff for explanation and report back to superintendent; that when plaintiff ceased to do the work of transferring mail in July, 1900, he (Irwin) paid another man to do the work, who proved unsatisfactory, then he hired Mr. Pollard and he proved unsatisfactory, then he hired the plaintiff, an efficient man. It is thus made manifest that the real question was not whether W. P. Irwin was agent of the defendant during the period named, but whether his authority then extended to the matter of directing, supervising, or employing a mail transfer clerk. This point of defendant's contention was carefully guarded in the ruling of the court and in the instructions to the jury.

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