St. Louis, Iron Mountain & Southern Railway v. Bennett

• Decision Date: 03 May 1890
• Citation: 13 S.W. 742,53 Ark. 208
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY v. BENNETT
• Court: Arkansas Supreme Court

13 S.W. 742

53 Ark. 208

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY v. BENNETT

Supreme Court of Arkansas

May 3, 1890

APPEAL from Craighead Circuit Court, J. E. RIDDICK, Judge.

Judgment reversed and cause remanded.

Dodge & Johnson for appellant.

OPINION

COCKRILL, C. J.

The appellee furnished board to employes of the railway, and failing to receive his pay, sued the railway therefor claiming that the roadmaster of the company had employed him to board the men for the company. There was a jury trial, and a verdict and judgment for the plaintiff. The railway insists that the proof fails to show that the roadmaster was authorized to charge it by contract for the purpose. We quote all the proof upon that point: It was that the company's roadmaster had "made contracts to board section men all along the road;" and that it was "the custom of railroads in that section of country for roadmasters to hire boarding bosses."

Now it is not incident to the operation of a railroad that it should pay the board of its employes. It is not within the apparent scope of the authority of a roadmaster to bind the company to do so; and his contract to pay for board does not bind the company unless he was expressly authorized, or the facts justify the inference that he had the implied authority. There is no reason to contend that there was express authority, and the question is, can the proof be said to justify the jury in the conclusion that he had implied authority?

Whether the contract which the roadmasters were in the habit of making was of a character to bind the company to pay the board of its employes, or to see that the employes settled their accounts, or what the nature of the contract was, is not disclosed. But conceding that the usage of the roadmasters on other roads would, in any event, be competent proof to throw liability upon the defendant for the unauthorized action of its roadmaster, it could only be when it was shown that there was a well defined and publicly known usage for roadmasters to bind the company to pay the board of its employes unconditionally. The nature of the contracts which the defendant's own roadmaster had frequently made is not clearly defined; but whatever it was the proof fails to show that knowledge of the fact that he had made contracts was ever brought home to the company, or that it ever ratified or assented to the roadmaster's action in any form. The employes may have paid...