Kelly v. Chicago & Alton Railway Co.

• Decision Date: 08 May 1905
• Parties: JOHN H. KELLY, Respondent, v. THE CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

87 S.W. 583

113 Mo.App. 468

JOHN H. KELLY, Respondent, v. THE CHICAGO & ALTON RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 8, 1905

Appeal from Jackson Circuit Court.--Hon. Wm. B. Teasdale, Judge.

Cause reversed.

Scarritt Griffith & Jones for appellant.

(1) Upon this testimony it must be conceded, first, that attorney Cheatham was authorized to make a settlement for plaintiff and that defendant was so notified; and, second, that if there was any restriction upon Mr. Cheatham's authority defendant and its agent had no notice thereof. Plaintiff is therefore, bound by the apparent authority vested in his agent and cannot escape the effect of his agent's act on account of secret restrictions, if any, placed upon his authority. Weeks on Attorneys, sec. 216; Mechem on Agency sec. 279; Hackett v. Van Frank, 105 Mo.App. 384; Law v. Stokes, 3 Vroom (N. J.) 249-90, Am. Dec. 655; Iron Works v. Mfg. Co., 109 Mass. 464. (2) Defendant's demurrer to the evidence should have been sustained because of plaintiff's utter failure to prove the cause of action alleged. Feary v. Railway, 162 Mo. 96; Milling Co. v. Transit Co., 122 Mo. 258.

Isaac N. Watson and Chas. B. Adams for respondent.

(1) There is no pretense in this case that plaintiff authorized attorney Cheatham to settle his claim for fifty dollars, but on the contrary such settlement was a flagrant violation of the instructions given by plaintiff, and was as gross a fraud as ever an attorney perpetrated upon a client. Black v. Rogers, 75 Mo. 448; Lewis v. Rogers, 22 Mo.App. 685; Willard v. Co., 47 Mo.App. 5; State v. Clifford, 124 Mo. 498; Mechem on Agency, secs. 289, 376; Hurley v. Watson, 13 West. Rep. 543. (2) Defendant's demurrer to the evidence was properly overruled. Rose v. Transportation Co., 20 Blachf. 412; Porey v. Scoville, 10 F. 140; Young v. Bransford, 12 Lea, 232; Railroad Co. v. Phillips, 49 Ill. 234; same case, 55 Ill. 194; The Reliance, 4 Woods 420; Dunlap v. Reliance, 2 F. 249; Spear v. Railroad, 119 Pa. St. 61; Wilkie v. Bolster, 3 E. D. Smith, 325. To the same effect see: Hipsley v. Railroad, 88 Mo. 348; Dougherty v. Railroad, 81 Mo. 325; same case in 97 Mo; Minister v. Railroad, 53 Mo.App. 282.

OPINION

BROADDUS, P. J.

The plaintiff sues to recover damages as the result of an injury alleged to have been sustained in consequence of the negligence of the defendant as a carrier of passengers.

On the 21st day of June, 1901, plaintiff became a passenger on defendant's railroad at Odessa, Missouri, his destination being Kansas City. While en route and near the city of Independence the boiler or engine exploded which had the effect of injuring many of the passengers, including the plaintiff. The allegation of negligence in the petition is as follows: "And that by reason of the old, worn and defective condition of said engine, the same not having sufficient strength to stand the pressure of the steam, and by reason of the improper management of the same, and by reason of such defective condition and wrong management of the same, the said engine exploded, wrecking said train as aforesaid and injuring plaintiff as aforesaid."

The defendant contends that there was no evidence sustaining the allegations of the petition that the engine was old and defective or that it was mismanaged. The substance of plaintiff's evidence is, that the engine exploded and wrecked the car in which plaintiff was a passenger. There was nothing to show directly, in the way of testimony, that the engine was either old or defective, or that there was any mismanagement of it. A similar question has been before the appellate courts of this State. In Dougherty v. Railway, 81 Mo. 325, the alleged ground of recovery was that the street car was so carelessly, unskillfully and negligently operated that plaintiff was suddenly and violently thrown down against the side of the car, which resulted in plaintiff's receiving certain injuries. The defendant contended on appeal that it was incumbent on the plaintiff to show affirmatively the connection between the injury and the misconduct of the carrier. The court from the authorities deduced the following: "That where the vehicle or conveyance is shown to be under the control, or management, of the carrier or his servant, and the accident is such as, under an ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care." In the case of Hipsley v. Railway, 88 Mo. 348, the facts were that the plaintiff was injured by reason of the derailment of the train causing the overturning of the car on which he was a passenger. The court held that upon such proof the plaintiff made out a prima facie case of negligence.

In Mullen v. St. John, 57 N.Y. 567, the plaintiff, who was upon a street sidewalk, was injured by the fall of an unoccupied building owned by the defendant, and it was held that, from the happening of such an accident, in the absence of explanatory circumstances negligence should be presumed, and the burden was cast upon the owner to disprove it. In Rose v. Transportation Co., 20 Blatchf. 411, 11 F. 438, a case arising out of the explosion of a boiler, the court said: "In the present case the boiler which exploded was in the control of the employees of the defendant. As boilers do not usually explode when in a safe condition and properly managed, the inference that this boiler was not in a safe condition, or was not properly managed, was justified," etc. See also Spear v. Railway, 119 Pa. 61; Railway v. Phillips, 49 Ill. 234; Porey v. Scoville, 10 F. 140.

It seems clear that the allegations of the petition that the engine was unsafe or mismanaged, under all the authorities, was supported prima facie by the proof of the explosion.

The defendant in its answer after a general denial pleads the following special defense: "That on or about August 1st 1901, plaintiff, through his duly authorized agent and attorney, one, W. L. Cheatham, in consideration of fifty dollars, paid by defendant, fully compromised and settled the claim or cause of action upon which this action is based, and accepted said amount in full satisfaction," etc. The reply put this allegation of the answer in issue and specifically alleges that...