McManus v. Chicago Great Western Ry. Co.

• Decision Date: 10 June 1912
• Citation: 136 N.W. 769,156 Iowa 359
• Parties: O. J. MCMANUS v. CHICAGO GREAT WESTERN RAILWAY CO., Appellant
• Court: Iowa Supreme Court

136 N.W. 769

156 Iowa 359

O. J. MCMANUS v. CHICAGO GREAT WESTERN RAILWAY CO., Appellant

Supreme Court of Iowa, Des Moines

June 10, 1912

Appeal from Superior Court of Council Bluffs.--HON. S. B. SNYDER JUDGE.

ACTION to recover alleged excessive charges, damages to stock shipped, and loss of time resulted in a verdict for the plaintiff, and judgment was entered thereon. The defendant appeals.--Affirmed on Condition.

Affirmed on Condition.

Carr Carr & Evans, and Saunders & Stuart, for appellant.

Kimball & Peterson, for appellee.

OPINION

LADD, J.

The facts are quite fully stated in the opinion filed on the former appeal, 138 Iowa 150. Upon remand to the district court, amendments to the pleadings were filed, and, though other claims were pleaded, only those for overcharge of freight, injury to stock while in transit over defendant's line, and loss of time by plaintiff's assignors were submitted to the jury. It will be recalled that on the 29th day of April, 1904, three brothers named Baker shipped three car loads of stock and other property from McClelland, Iowa to High River, Alberta, via the Chicago & Great Western Railway Company, the Minneapolis, St. Paul, & Sault Ste. Marie Railway Company, and the Canadian Pacific Railway Company. The property to be transported was loaded in cars of the Canadian Pacific Railway Company and delivered by the defendant at the Minnesota Transfer, near Minneapolis, Minn., and from there hauled by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company to North Portal, N. D., from which point the Canadian Pacific Ry. Co. took them to High River, Alberta.

The Bakers assigned their claims against the defendant to O. J. McManus, who brought this action. McManus, acting for them, had negotiated with one Shipley, as agent of the defendant at Council Bluffs, Iowa for the transportation of these cars, though there was a local agent at McClelland, who signed the shipping contracts. The defendant maintained an uptown office at the Grand Hotel in Council Bluffs, bearing Shipley's name, followed by "City Passenger and Freight Agent," and to him McManus applied and was informed the rate would be twenty cents per 100 pounds from McClelland to the Minnesota Transfer, minimum weight of 20,000 pounds per car, and $ 45 per car from there to High River, Alberta, on a minimum weight of 24,000 pounds per car, and, after several conversations, Shipley said he would furnish Canadian Pacific cars, and later informed McManus that he had gotten two stock cars and one box car in which the property could be shipped through to its destination. These cars were sent from Council Bluffs to McClelland, loaded April 29, 1904, and carried the property to its destination. Appellant contends that the evidence was insufficient to support a finding that Shipley was authorized to act for it in negotiating shipments from McClelland or beyond its line of road. Presumably an agent of a railroad company is without authority to act for it in the matter of shipping from stations other than that at which he is employed. Voorhees v. Railway, 71 Iowa 735; Burgher v. Railway, 105 Iowa 335 at 336. And this is true with respect to authority concerning shipments beyond the terminus of the road. McLagan v. Railway, 116 Iowa 183; McManus v. Railway, 138 Iowa 150.

But an agent may be shown to possess authority, and evidence tending so to show may be by proof of other like course of dealing or of the acceptance or approval of like services by the principal. "The course of dealing between the parties through the alleged agent is generally relevant and admissible upon the question of agency and its extent. . . . The accepted acts of an agent are always evidence to show the extent of his powers." Blowers v. Railway, 74 S.C. 221 (54 S.E. 368); McCormick v. Lambert, 120 Iowa 181, 94 N.W. 497; Grant v. Humerick, 123 Iowa 571, 94 N.W. 510; Greenleaf on Evidence, par. 64 et seq.

The evidence bearing on Shipley's authority to negotiate shipments from McClelland was such as to leave little doubt as to its existence. At least, it was sufficient to carry that issue to the jury. An examination of the record, however, has not disclosed evidence sufficient to sustain a finding that he also had authority to contract with respect to shipments beyond defendant's lines of railroad. McManus testified concerning a shipment made by a nephew of the Bakers in the fall of 1903, and that:

The Great Western Railway maintained an office in the Grand Hotel on Pearl Street, and one on Main street in Council Bluffs, in 1903, 1904, and 1905. The Main street office was the depot. The agent was Ed Shipley. I have seen him at those offices and have had conversations with him. The name of the company was on the Grand Hotel office with the name of Shipley, city passenger and freight agent. The Bakers made a shipment from McClelland, Iowa to High River, in the fall of 1903. Written contracts were made with the Great Western for the shipment from McClelland, Iowa to Minnesota Transfer, and other contracts with the Soo were made covering the shipment from Minnesota Transfer to North Portal, and at that place other contracts with the Canadian Pacific were made covering the shipment from North Portal to High River. I saw the goods loaded at McClelland and saw them afterwards at High River. I did not have any talk with Mr. Lively, the agent at McClelland, in reference to where they were to go. I had a conversation at Council Bluffs with Mr. Shipley in regard to the shipment of some household goods, stock, and implements, and other emigrant movables of the Bakers from McClelland, Iowa to High River, Canada, during the fall of 1903. It was at the Grand Hotel city office. I went there to ascertain the rate on a car of emigrant movables from Council Bluffs to High River. At that time I did not know where the car would be loaded. Mr. Shipley, in charge of the office of the Chicago Great Western Railway, quoted the same rate I had received from the agents of other roads I had interviewed. That rate was twenty cents per 100 from Council Bluffs or McClelland to the Minnesota Transfer, a minimum weight car of 20,000 pounds. From the Minnesota Transfer to High River, Alberta, a lump rate of $ 45 per car with a minimum weight of 24,000 pounds. I explained to Mr. Shipley that the emigrant movables would consist of farm implements, some household furniture, and stock. In accordance with this conversation, a car was furnished at McClelland, Iowa for this shipment. Shipley said the Great Western Railway Company would furnish cars for the shipment of goods from McClelland, Iowa to High River, Canada, in the fall of 1903. He said they would furnish large furniture cars, or they would have the Canadian Pacific cars come down here to be loaded. At that time, I had not decided whether to load at McClelland or Council Bluffs; but in either case he said he would furnish the cars. He said afterwards it would make no difference whether they furnished furniture cars or Canadian Pacific cars; they could be sent through to High River without unloading. He said they would be so sent. I afterwards told him we had decided to load at McClelland, Iowa because it was more convenient, and the rate was the same, and it was immaterial to me who furnished the cars, provided they could make a through shipment. He said, in either case, it would be a through shipment, and that the company would furnish the cars. I then went out to McClelland the day he said the cars would be there. It was the next day after our last conversation. Mr. Shipley was at McClelland, and I talked with him there about taking a car that was then loaded with lumber. We unloaded the lumber and used the car the next day for loading. Mr. Shipley went inside the building when he was out there this time at McClelland. . . . At the time I did not know the station agent at McClelland, but I think he was inside with Mr. Shipley at the time he gave these instructions. . . . I saw the goods afterwards which were loaded upon that car at High River. At the time I had this talk with Mr. Shipley and further shipment of these goods from McClelland, Iowa to High River in the fall of 1903, he said it was necessary to have a bill of lading made out upon which one would ride. He told me they would have new bills of lading on the Soo line and on the Canadian Pacific. He told me the rate for through shipment from McClelland to High River would be twenty cents per 100 to the Minnesota Transfer on a minimum of 20,000 pounds to the car and $ 45 per car from there to High River, Alberta, making a total of $ 85. Mr. Shipley said the payment would be $ 85 per car, providing it did not weigh more than 20,000 pounds. That carload in 1903 went out over the Great Western Railway. I had a conversation with Mr. Shipley in regard to making shipments of three cars in the spring of 1904. I told him I would want three cars for the shipment of goods to the same place where we shipped the car last fall. We would ship from Council Bluffs or McClelland or from Neola, if we shipped by way of the Milwaukee, all of which had given us the same rate. I saw him again, and he said, 'I have given you two stock cars and one box car for the shipment.' I said, 'I am glad of that.' It would make it more convenient for them to live in a box car and put the stock in the two cars. Q. You may state what, if anything, was said to you about joint through rates in this connection. A. He stated it was a joint through rate. Q. What, if anything, did you say about it differing from the combined rates over the connecting lines? A. He said it was a lower rate than the combined rate or sum of the rates of the defendant carriers. I asked him in reference to the 1904 shipment, if it would make any...