Newbury v. Sea Board Air Line Ry.
| Decision Date | 13 November 1912 |
| Citation | 76 S.E. 238,160 N.C. 156 |
| Parties | NEWBURY v. SEA BOARD AIR LINE RY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Duplin County; O. H. Allen, Judge.
Action by J. H. Newbury against the Sea Board Air Line Railway. From a judgment for plaintiff, defendant appeals. Affirmed in part, and reversed in part.
Where the carrier claimed that the local agent had no authority to make the contract sued on, and plaintiff's evidence showed that the agent had power to make it, and that it had been ratified, the issues of the agent's authority and of ratification were for the jury.
There was allegation, with evidence on the part of plaintiff tending to show that he was the proprietor of a traveling troupe, known as the Hallie Mack Show, and had procured a special passenger car for his actors, and, being at Weldon N. C., on or about June 6, 1910, he made a contract with defendant's transportation agent, a Mr. Rodwell, that he was to be supplied with a baggage car of certain dimensions with doors open at both ends for the transportation of his outfit, including stage platform, tents, poles, etc., and he was to have this car, at a stated price, over defendant's lines on Saturday night of each week end while the show was giving exhibitions in that vicinity. That car was furnished as per contract for Henderson, the next point, and from Henderson to Oxford, but on the third and some subsequent points defendant failed to supply car, causing plaintiff much damage, etc. Defendant denied making a contract for the car except to Henderson, the next point on its lines, and averred that, if any such contract was made, it was with one C. E Carter, defendant's local passenger agent at Weldon, and that neither Carter nor Rodwell, alleged to be a local freight agent at Weldon, had any authority to make the contract sued on, express or implied, and offered evidence on the questions presented, including several telegrams between Carter and C. B. Ryan, general passenger agent of defendant company, and other telegrams tending to show that the contract as made was only to supply the car to the next station, Henderson, and tending to establish other facts in support and corroboration of defendant's positions. These telegrams were at first admitted by the court, but were afterwards entirely withdrawn; his honor charging the jury: "That all telegrams and communications between the ticket agent at Weldon, N. C., and superintendent, C. B. Ryan, and J. A. Witt, are withdrawn from the consideration of the jury for any and all purposes, and the jury are instructed that they cannot consider them for any purpose." And charging further: "If the contract at Weldon was made by the agreement there with the ticket agent in the office, even though the ticket agent had no authority to do so, it would be binding on the railroad, as the contract alleged to have been made was apparently within the scope of his authority to arrange for cars, unless he did or attempted to do something contrary to law or the rules and regulations of the Railroad Commission of the state of federal regulations." Defendant excepted to both rulings. Plaintiff declared on a second cause of action for negligent injury in moving plaintiff's private car at Louisburg, causing damage. This was denied by defendant, and both parties offered evidence as to this cause of action. On issues submitted the jury rendered the following verdict:
Judgment for plaintiff and defendant excepted and appealed, assigning for error, chiefly: (1) That his honor withdrew the telegrams from the consideration of the jury; (2) the charge of the court that on the facts in evidence a contract with the ticket agent would be binding on the company, though the ticket agent had no authority to make it, the same being within the apparent scope of his authority; (3) that on motions properly made the court refused to nonsuit.
Murray Allen, of Raleigh, for appellant.
Johnson & Johnson, of Warsaw, and H. D. Williams, of Kenansville, for appellee.
There was evidence on the part of the defendant tending to show that the contract was different from that declared on by plaintiff, and that same was made with one E. C. Carter, the local passenger agent at Weldon, and, further, that C. B. Rodwell. with whom plaintiff testified the contract was made as defendant's "transportation agent," was only the local freight agent and yardmaster at Weldon, and on this testimony, in either aspect of it, we think the defendant is entitled to a new trial of the issues on the first cause of action.
On authority these local railroad agents, whether passenger or freight, in charge of the company's...
To continue reading
Request your trial