Jackson v. American Tel. & Tel. Co.

• Decision Date: 17 October 1905
• Citation: 51 S.E. 1015,139 N.C. 347
• Parties: JACKSON v. AMERICAN TELEPHONE & TELEGRAPH CO.
• Court: North Carolina Supreme Court

51 S.E. 1015

139 N.C. 347

JACKSON v. AMERICAN TELEPHONE & TELEGRAPH CO.

Supreme Court of North Carolina

October 17, 1905

Appeal from Superior Court, Cumberland County; Ferguson, Judge.

Action by L. C. Jackson against the American Telephone & Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

On the issue of agency, a charge that the jury must not consider declarations of the alleged agent upon the question of agency, but must first find from the evidence, excluding such declarations, that the alleged agent was defendant's agent, before any of his acts could become competent evidence against defendant, and that in passing on the question of agency the jury might consider any of the acts of the alleged agent in connection with defendant's work and whether such alleged agent was in charge of defendant's work with authority, was not subject to the objection of leaving to the jury the bare acts of the alleged agent as evidence of his agency.

Plaintiff brought this action to recover damages for false imprisonment. He alleged that one McManus caused a warrant to be issued by a magistrate for his arrest upon the charge of an assault with a gun, and that he was taken into custody by the sheriff and confined in jail for about a day. There was evidence tending to prove the false arrest and imprisonment and the case turns upon the question whether McManus acted for and in behalf of the defendant, as its agent, in suing out the warrant. The issues submitted, with the answers thereto, were as follows: "(1) Was J. C. McManus the agent of the defendant company and in charge of the work? Ans. Yes. (2) Did J. C. McManus procure the plaintiff to be arrested, for the purpose of getting him out of the way, in order to put up the telephone and telegraph poles across the plaintiff's land while he (the plaintiff) was under arrest? Ans. Yes. (3) Was such arrest without probable cause and for the purpose of enabling the defendant's agents and servants to put up the telephone and telegraph poles over said land claimed by the plaintiff? Ans. Yes. (4) Did the defendant company by its agents and servants put up telephone and telegraph poles across the land claimed by the plaintiff while the plaintiff was under arrest, and still continue to keep said poles and continue to use them? Ans. Yes. (5) What damage, if any, is the plaintiff entitled to recover? Ans $900."

There was evidence tending to show that the American Telephone & Telegraph Company was extending its line into Cumberland county, and that McManus was in charge of a squad of hands who were putting up and stringing wires on them near the plaintiff's home. Plaintiff testified that "McManus was having the poles put up, the wire strung, and telling the hands where to go and what to do. There were 35 or 40 hands and McManus was in entire control." Another witness, John C. Ratley, testified: "I saw McManus in charge of a crowd of hands, pushing them on--hurrying them up. I stayed with him awhile, and then came back home. He had about 50 hands." There was also evidence tending to show that plaintiff had forbidden McManus from erecting poles on his land, and that the arrest was made in order to put him out of the way until the work could be done; McManus having threatened beforehand to put plaintiff out of the way until the hands could do the work. The poles were put up and the wire strung while the plaintiff was under arrest or in jail. McManus called at the home of the officer and told him he wanted the arrest made, and that it must be done that evening. He hired a team, and an officer went with him to the plaintiff's house and made the arrest. McManus then went to the place where the hands were working, and said that he wanted the wire put up and that he would pay double wages for the work done after night. They commenced work about a half hour after sundown and continued into the night, and the poles were put up and the wire strung. When plaintiff refused to permit them to construct the line upon his land and ordered them to leave, McManus replied: "I will put you out of the way, or I will have the poles up before sundown." When the case was called for trial before the justice, McManus failed to appear, and the plaintiff was discharged. The justice found that the prosecution was frivolous and malicious, and taxed McManus with the costs. Defendant introduced testimony tending to show that it had two departments engaged in the building of its line, the right of way and the construction departments, and that Fred Linson was foreman of the construction department, and McManus was assistant foreman and employed by Linson, the latter having been appointed by Campbell, the superintendent of construction; that Jackson assaulted McManus with his gun, and that the arrest had nothing to do with the work of the company and was not authorized by the company or any of its agents; that Jackson signed a "voucher" in the regular form, giving defendant the right to build, operate, and maintain its line on the land, stating that it was his wife's property, and afterwards claimed the land as his own and refused to carry out the agreement, and that the work was done by Linson's force in the belief that defendant had secured the right to use it, and without any reference to plaintiff's arrest; that none of the agents or servants of defendant was authorized to arrest the plaintiff; and that McManus was not with the force when the arrest was made. These are substantially the facts which the testimony tended to establish on either side, and which are necessary to be stated for an understanding of the case. The defendant's counsel asked that certain instructions be given to the jury, which will be hereafter noticed. After a motion for a new trial, which was refused, judgment was entered upon the verdict. Defendant excepted and appealed.

N. A. Sinclair, for appellant.

Thos. H. Sutton, for appellee.

WALKER, J. (after stating the case).

The principal questions discussed in this court related to the competency of the acts of McManus as proof of his agency for the defendant and to the liability of the defendant for his conduct in unlawfully causing the plaintiff's arrest. The defendant's counsel contended that no authority to bind the defendant had been shown, and that his acts were not competent to show any such authority, but that it must be established, if at all, by evidence independent of his acts and declarations. It is common learning that acts and declarations of a third person are not evidence against a party, unless such third person be his agent; and it is equally well settled that the agency must be first shown otherwise than by such acts and declarations, before they are admissible. The court must be satisfied that the agency has been shown, at least prima facie, before anything that the alleged agent has said or done can be submitted to the jury as evidence. Williams v. Williamson, 28 N.C. 281, 45 Am. Dec. 494; Grandy v. Ferebee, 68 N.C. 356; Francis v. Edwards, 77 N.C. 271; Gilbert v. James, 86 N.C. 244; Daniel v. Railroad, 136 N.C. 517, 48 S.E. 816, 67 L. R. A. 455. But this elementary rule has not been violated in this case, and the reason upon which it is founded does not apply to the evidence supposed to fall under its condemnation. The court expressly charged the jury that they must not consider any declarations of McManus upon the question of his agency, but that they must first find upon the evidence, excluding his declarations, that he was the agent of the defendant in charge of its work and authorized to act in its behalf in constructing the telegraph line, before any of his acts done or declarations made in the prosecution of the agency could become competent against the defendant. In passing upon the question of agency, the court did permit the jury to consider "any evidence of the acts of McManus in connection with the work of the defendant, and whether the defendant was putting up the poles on the land claimed by the plaintiff, and whether McManus was in charge of the construction work with authority, and whether he was in control of the labor and material and gave directions" as to how the work should be done. But what we understand the court to mean by this instruction is that if McManus, by and with authority of the company, was doing the work described, he was in law the agent of the company to the extent of charging it with liability for his acts so done in furtherance of the principal's business, and we think the jury must have so understood it. Thus construed the charge did not leave to the jury the bare acts of McManus as evidence of his agency, which would clearly have been error; but the jury were required to consider all the evidence, for the purpose of finding whether he had the authority to act as he did; and the particular acts of McManus were mentioned, so that the jury might intelligently apply the evidence and ascertain whether he possessed authority to do those particular acts. It must be remembered that the defendant's witness, Fred Linson, testified that he was foreman of construction and McManus was his assistant. There was evidence of his authority, for it makes no difference that he was employed directly by Linson. By virtue of his employment he became the servant of the defendant. He was not, perhaps, in the strict and technical sense its agent, but its servant. In either relation, the principal or the master, as the case may be, is chargeable with liability for his acts done in the course of his employment and in furtherance of the business he had in charge.

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