Pennsylvania Railroad Co. v. Flanigan

• Decision Date: 24 May 1886
• Docket Number: 199
• Parties: The Pennsylvania Railroad Co. v. Flanigan
• Court: Pennsylvania Supreme Court

4 A. 364

112 Pa. 558

The Pennsylvania Railroad Co. v. Flanigan

No. 199

Supreme Court of Pennsylvania

May 24, 1886

Argued April 13, 1886

ERROR to the Court of Common Pleas of Luzerne county: Of January Term, 1886, No. 199.

Assumpsit by John Flanigan against the Pennsylvania Railroad Company to recover for services as ticket agent of said company. Pleas non-assumpsit, payment with leave, etc.

The following are the facts as they appeared on the trial before WOODWARD, J.:

The North and West Branch Railroad Company completed a railroad from Catawissa to South Wilkesbarre in November, 1882. At that point a connection was made with the tracks of the Lehigh Valley Railroad, and a business arrangement was consummated for the use of about a mile of their track together with the passenger and freight stations, yard sidings, &c. This arrangement was entered into by the Pennsylvania Railroad Company, who had become the lessees of the North and West Branch Company's line. The Pennsylvania Railroad Company agreed to pay the Lehigh Valley Company a certain sum per ton for all freight handled by their station agents, and five cents per passenger for every one going into or out of their station. These charges were to cover the sale of tickets by the Lehigh Valley agents for the Pennsylvania Company, and every other necessary service connected with receiving and handling freight and passengers. The Pennsylvania Railroad Company had no possession or control of any part of the terminal facilities, and had no agents or employes about the stations. All the work was done by the Lehigh Valley agents, and the compensation was made for all to that company.

The ticket agent at Wilkesbarre from November, 1882, to September 1st, 1884, was John Flanigan, the defendant in error. At the latter date he left the employ of the Lehigh Valley Company and for the first time made a claim on the Pennsylvania Railroad Company for compensation as their agent, and for selling their tickets at the Lehigh Valley station in Wilkesbarre during that period of time. As the company had paid his employer for all services according to contract they objected to this demand, whereupon he brought suit, claiming $150 per month for his services.

To substantiate his claim he testified that in November, 1882 he received a printed circular announcing that he had been appointed agent of the Pennsylvania Railroad Company at Wilkesbarre, and that he had given a bond with sureties as agent. That Mr. Alfred Walter, the superintendent of the North and West Branch Division of the Pennsylvania Railroad, had spoken to him at different times about handling the business of the company, and had promised to compensate him by a salary. No amount was fixed. That he was instructed that he would be called on to do the work by Mr. Mitchell, superintendent of the Lehigh Valley, and had done it for twenty-two months. That he had never made a demand for pay until after his connection with the Lehigh Valley was dissolved. He introduced a witness or two as to the value of the service rendered.

On the part of the defendant below Mr. Walter testified that he had spoken to Flanigan about selling Pennsylvania Railroad tickets, and told him that no arrangement had been completed between the companies as to the use of road and stations; that, when completed, if the Pennsylvania Railroad Company was to pay for the service of agents he would see that he was properly compensated, and that he had no other conversation with him.

Mr. Mitchell, division superintendent of the Lehigh Valley Railroad, the immediate superior of Mr. Flanigan, testified:

"I had a conversation with Mr. Flanigan, and told him that the tickets of the Pennsylvania Railroad Company were to be sold by him at the Lehigh Valley Railroad office."

No other instruction or permission was given by any one to Mr. Flanigan relative to the sale of the tickets.

He testified that he had no consent from his company to be employed by the Pennsylvania Railroad; also that the two roads are competitors for western travel. The same fact was stated by Mr. Walter, as to passengers and freight, and was not denied.

The defendant presented, inter alia, the following points:

2. The plaintiff being in the employ of the Lehigh Valley Railroad as its ticket agent at the time of the making of the alleged contract of employment with the Pennsylvania Railroad Company, and during the entire time during which the alleged service was rendered, any compensation which might be payable for such service belongs to the Lehigh Valley Railroad Company, and this action cannot be maintained.

Answered as follows, viz.:

We cannot affirm that point. We cannot say that the plaintiff was exclusively in the employ of the Lehigh Valley Railroad Company, and was their agent alone, because that assumes a state of facts which the court has no right to assume, and which necessarily is for the jury. (First assignment of error.)

3. The uncontradicted evidence being that the duty of selling the tickets, &c., of the defendant company was imposed upon him by the Lehigh Valley Railroad Company as part of his employment, the plaintiff could not make any binding contract for compensation for such duty, nor can he recover under such contract if he made any.

Answered as follows, viz.:

That point we decline to affirm. (Second assignment of error.)

4. That under the evidence of the plaintiff the Lehigh Valley Railroad and the Pennsylvania Railroad are competitors for passenger business, and their interests diverse at Wilkesbarre, and therefore the policy of the law will not permit a ticket agent of the Lehigh Valley Company to engage himself to her rival to sell tickets without the consent of his employer, and therefore the plaintiff cannot recover in this case.

Answered as follows, viz.:

We cannot affirm that point. We say the fact that these companies are competitors to some extent, for business, is not of itself sufficient to justify this point where there is evidence, as there is in this case, that there was knowledge of and implied consent on the part of the Lehigh Valley Company to the action of the plaintiff. (Third assignment of error.)

5. Under all the evidence the plaintiff cannot recover in this action.

Answered as follows, viz.:

That point we decline to affirm. (Fourth assignment of error.)

The court charged, inter alia, as follows:

Furthermore, he was required to give and did give to the Pennsylvania Company a bond with sureties, in the sum of $3,000, conditioned for the faithful performance by him of his duties as ticket agent. (Fifth assignment of error.)

The sale of Pennsylvania tickets at the Lehigh Valley depot was with the permission and under the order of Mr. Mitchell, the superintendent of the Lehigh Valley Company. (Sixth assignment of error.)

Verdict for the plaintiff in the sum of $559.12 and judgment thereon, whereupon the defendant took this writ, assigning for error the answer of the court to the defendant's points, and so much of the general charge as is above set out.

Judgment reversed.

H. W. Palmer (George Sanderson with him), for plaintiff in error.

J. V. Darling (E. P. Darling with him), for Lehigh Valley Railroad Company, who joined in the paper book and in the argument with the plaintiff in error.

1. The profits, directly or indirectly made in the course of or in connection with his employment by a servant or agent, without the sanction of the master or principal, belong absolutely to the master or principal: Morrison v. Thompson, 9 L.R.Q.B., 484; Massey v. Davies, 2 Vesey, Jr., 317; Turnbull v. Gardner, 38 L.J. Ch. D., 331-334; Kimber v. Barber, 8 Law Rep. Ch., 56.

No credit will be allowed for the service of a bookkeeper employed by another firm, it being presumed that his time belonged to his employers. The recompense for any part not occupied in their work should belong to them: Beeson's Appeal (Fayette Co.), 2 Atlantic Rep., p, 683.

For the principle relied upon to sustain the second, third and fourth assignments we have the authority of Holy Writ: "No man can serve two masters; for he will hate the one and love the other, or else he will hold to the one and despise the other."

Says THOMPSON, C.J., in Everhart v. Searle, 71 Pa. St., 259, after quoting the passage: "All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principle in every system of enlightened jurisprudence."

"No man can faithfully serve two masters," said the court in Utica Ins. Co. v. Toledo Ins. Co., 17 Barb., 134. To the same effect is Campbell v. Penn Life Ins. Co., 2 Wh., 55; Paley on Agency, 32.

"It matters not," it is said, p. 210 of Hare & Wallace Notes, 1 Lead. Cas. Eq., "that there was no fraud meditated and no injury done, the rule is not intended to be remedial of actual wrong, but preventive of the possibility of it." This was said of "any one who acts representatively or whose office is to advise or operate not for himself but for others."

G. L Halsey (E. S. Osborne with him), for defendant in error. -- The defendant in error, Mr. Flanigan, had certain specific duties to perform under his contract of employment with the Lehigh Valley Railroad Company. That is, he was to sell tickets for some thirteen trains between 7.30 o'clock in the morning and 8 o'clock in the evening, make report of his sales and account for the money to his employers derived from such sales. There is no evidence that the Lehigh Valley Railroad Company exclusively owned Mr. Flanigan's time between 7.30 o'clock in the morning and 8 o'clock in the evening. His testimony is the only testimony upon this question, and is: "The company never dictated hours to me; I used my own judgment in a...