The Southern Express C0mpany v. Frink

• Decision Date: 30 September 1881
• Parties: The Southern Express C0mpany. vs. Frink et al.
• Court: Georgia Supreme Court

67 Ga. 201

The Southern Express C0mpany. vs. Frink et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Master and Servant. Principal and Agent. Common Carriers. Damages. Negligence. Charge of Court. Be-fore Judge Pate. Pulaski Superior Court. November Adjourned Term, 1880.

To the report contained in the decision it is only necessary to add the following:

Frink, who was a conductor on the Hawkinsville branch of the Macon & Brunswick railroad, also accepted employment under the Southern Express Company; his duties were those of a messenger—to carry packages from Cochran to Hawkinsville, and vice versa, etc. He gave a bond to the express company, the provisions of which are sufficiently stated in the first head-note. On September 16th, 1879, he received an express package containing $3,000.00, to be carried from Cochran to Hawkinsville. He failed to deliver it, and the company sued on his bond. The evidence as to his diligence was conflicting. Plaintiff sought to show that the package was received by Frink about 2:30 P. M., and put in the safe which he had in the baggage car; that he left the car open and the safe unprotected, and went with the engine some miles away after water, returning just before sundown; that he then took no precautions, his only precaution before leaving the first time being to tell one Carroll, who was the baggage-master, and with whom he divided the salary paid him by the express company, to lock the car; that after his return with the engine he went up town and remained there eating and drinking and playing cards until some time in the night, when it was time for the train to leave; and that he showed the key of the safe to one or more parties, remarking that it was a check for money, all of which was contrary to the rules of the company; that he never paid any attention to the package until near Hawkinsville, after 10 P. M., when he went to the safe to get it and found at gone.

Defendants insisted that, under orders from the railroad company, Frink was compelled to go with the engine for water, returning before sundown; that he did not receivethe instructions as claimed by plaintiff, and that he was not negligent. The facts are sufficiently stated in the decision.

The jury found for defendants. Plaintiff moved for a new trial, on the following among other grounds

(1.) Because the verdict was contrary to law and the evidence.

(2.) Because the court erred in charging the latter clause of section 2184 of the Code, to-wit: "In cases where the power is coupled with an interest in the agent, unreasonable instructions detrimental to the agent's interest may be disregarded."

"The court charged the entire section together.] (3.) Because the court refused to charge the following written request: "That the defendant, Frink, having voluntarily and for hire accepted the position of agent of the express company, and having voluntarily assumed the duties and responsibilities and liabilities of such agent to plaintiff, his being in the employ of the railroad did not in any way increase or diminish his duties and obligations and liabilities to plaintiff.'

(4.) Because the court erred in the following charge " Now it is claimed here on the part of the defendants that he (Frink) was to obey the instructions of the Macon & Brunswick railroad; therefore it is claimed that it came in conflict with the duties as express agent and messenger. Well, gentlemen, you have heard the testimony upon that question, and it is for you to determine under the facts sworn to and proved whether it was necessary for him (Frink), as claimed here, that he was compelled to leave Cochran on the engine, whether it was necessary for him to do that or not—whether the instructions from the railroad requires that he should do that, and that is the question for you."

The motion was overruled and plaintiff excepted.

Roberts & Delacey; Jacob Watson; R. F. Lyon, for plaintiff in error.

Kibbee & Martin; C. C. Ryan; Harrison & Peeples, for defendants.

Jackson, Chief Justice.

The Southern Express Company brought suit against their agent and the sureties on his bond, to recover three thousand dollars entrusted to him at Cochran for delivery at Hawkinsville, and which he failed to deliver. The jury found for defendants and the company excepted to the refusal of the court to award a new trial.

1. The liability of the agent of the company and his sureties to the company turns on the contract between them, and that contract is the bond on which the suit is brought. The counsel for plaintiff in error contended that the liability of the agent is the same as that of a common carrier; that he was employed by the company to carry goods, money, etc., from Cochran to Hawkinsville regularly on the Macon and Brunswick branch railroad between those points, and thus became a common carrier under section 2c66 of the Code, and therefore, under the same section, no excuse availed him but the act of God or that of the public enemy.

It was conceded that his liability and that of his sureties was measured by the obligation they signed, but it was insisted that by the terms of that obligation the legal liability of the agent as a common carrier was not varied, but was fixed to be that of a common carrier.

The liability fixed in the bond is in these words: "I will at all limes well and truly perform all the duties required of me in any position or place to which I may be assigned in said employment, and well and truly account for all money and property of every description which may come into my possession or control, or for which I may have given my receipt, by reason of said employment, and make good all loss or damage which may happen to such money or property while under my control, for which I may be legally responsible, and indemnify and save harmless the said company from all liability on account of my fault or neglect." It is urged that the words "for which I may be legally responsible" make the agent liable as a common carrier, and that he can protect himself from incurring it only by the act of God or the public enemy. We cannot so hold.

The following words, "and save harmless the said company from all liability on account of my fault or neglect" would be without meaning if such construction were put on the former words. The...