St. Louis, I. M. & S. Ry. Co. v. Stone

• Decision Date: 07 April 1906
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. STONE.
• Court: Arkansas Supreme Court

95 S.W. 470

ST. LOUIS, I. M. & S. RY. CO. v. STONE.

Supreme Court of Arkansas.

April 7, 1906.

Appeal from Circuit Court, Jefferson County; A. B. Grace, Judge.

Action by Lena Swallows, alias Stone, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

B. S. Johnson, for appellant. Taylor & Jones, for appellee.

McCULLOCH, J.

This is an action brought by appellee, Lena Swallows, alias Lena Stone, against the railway company, to recover damages in the loss of her trunk which was shipped as baggage over appellant's road. She purchased a ticket from Haileyville, Ind. T., on the Choctaw, Oklahoma & Gulf Railroad, to Pine Bluff, Ark., on appellant's line of road, and her trunk was checked through. The trunk was checked after she left Haileyville, and by an acquaintance the check was sent to her by mail at Pine Bluff, and she exhibited it at the trial of the case. The trunk, it appears, failed to reach Pine Bluff while she was in that city, and she failed to get it there, though she demanded it. She returned to Haileyville without her trunk, and subsequently went to Mansfield, Ark., and has never received it, so she testified. She went to Pine Bluff with a man named Stone and assumed the name of Stone, instead of her true name, Swallows, and passed as Mrs. Stone. They stopped in the same boarding house there. Appellant's baggage clerk at Pine Bluff testified that he shipped the trunk back to Haileyville on the same check, via appellant's road to Little Rock, and thence over the Choctaw, Oklahoma & Gulf Railroad to Haileyville. "The defendant then offered to prove by this witness," copying literally from the record, "that four or five different times, before the arrival of the trunk in controversy in Pine Bluff, one E. S. Stone called on him asking for the plaintiff's trunk, presenting at one of the times C. O. & G. check from Haileyville to Pine Bluff No. 98,013 [which was the description of the check held by plaintiff and exhibited at the trial]; that the last time he called, which was about the 4th or 5th of April, 1903, he exhibited to witness a letter purporting to have been written by the plaintiff, representing to witness that the plaintiff was his wife; and that in said letter the plaintiff requested that her trunk be returned from Pine Bluff to Haileyville as soon as it arrived at Pine Bluff; that the trunk was described in the letter as bearing check No. 98,013; that, pursuant to the directions so given by Stone and said letter, witness sent said trunk back to Haileyville as soon as it arrived at Pine Bluff." The court refused to admit this testimony, on the ground that the agency or authority of Stone had not been shown.

This testimony was competent and should have been admitted. The plaintiff denied that she ordered the trunk returned to Haileyville, or that she authorized Stone to direct its return. She also denied that she had intrusted the check to Stone. It is undisputed, so far as the testimony in the record shows, that the trunk finally arrived at Pine Bluff and was returned to Haileyville. If the plaintiff directed its return, and it reached Haileyville safely over the connecting carrier's line (which was undisputed), and the plaintiff accepted it then or caused it to be rechecked to Mansfield (as there was testimony tending to show), then the defendant was not liable, even though the trunk was subsequently lost after it left Haileyville the second time. It was therefore important to determine whether or not the plaintiff authorized Stone to have the trunk sent back to Haileyville. It is undisputed that he did direct its return, and that it was returned according to his directions. It is well settled that the agency and authority of an alleged agent cannot be proved by his own declarations. Carter v. Burnham, 31 Ark. 212; Holland v. Rogers, 33 Ark. 251; Chrisman v. Carney, 33 Ark. 316; Howcott v. Kilbourn, 44 Ark. 213; Turner v. Huff, 46 Ark. 222, 55 Am. Rep. 580. But the intimate relations between plaintiff and Stone while they were in Pine Bluff, passing themselves off before the public as husband and wife (proof of which was admitted by the court), and his possession of the check, a few days before he appeared with a letter purporting to be from plaintiff ordering the trunk sent back to Haileyville, were circumstances tending, with more or less force, to establish his authority from plaintiff to direct the return of the trunk. The jury should have been permitted to consider them, along with plaintiff's denial that she ever parted from...