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acquiesced in by the defendant's stable foreman under authority to bind the defendant.

[1] The jury having found that the boy's injuries were occasioned by Brady's negligence, we are here concerned only with the question of the defendant's liability for its driver's negligence. This question centers on Clarke, the stable foreman, and, we think, on his authority to acquiesce in Brady's invitation to the boy, for manifestly the defendant is not liable to the boy for what happened following Brady's admittedly unauthorized invitation, unless his unauthorized invitation had been ratified or acquiesced in by someone in the defendant corporation having authority to bind it.

In disposing of the defendant's motion for a directed verdict and the plaintiff's prayers for instructions, before charging the jury, the learned trial judge discussed the law. He drew the distinction-very correctly, we think-between cases where employers are charged with a duty of exercising reasonable care toward children invited by their employés without authority upon instrumentalities of recognized danger, such as railroad engines, trains, trolley cars, and where consequently employers are liable for injuries occasioned by negligence of their servants (Danbeck v. N. J. Traction Co., 57 N. J. Law, 463, 31 Atl. 1038; Solomon v. Railway Co., 87 N. J. Law, 284, 92 Atl. 942, Ann. Cas. 1917C, 356; Wilton v. Middlesex Railway Co., 107 Mass. 108, 9 Am. Rep. 11), and cases involving no such duty and consequently no such liability, as where a child rides on a wagon upon the bare unauthorized invitation of a driver (Kiernan v. N. J. Ice Co., 74 N. J. Law, 175, 63 Atl. 998). Following these cases, the learned trial judge declined to give instructions holding the defendant liable on the theory that Brady's act of inviting the boy to ride was alone and of itself a violation of a duty which the defendant owed the boy. He indicated, however, that he would instruct the jury in his charge that they could find the defendant liable if they found that the defendant had ratified Brady's invitation. No question is very seriously raised by the defendant on this writ as to the correctness of this position, nor is any question raised by us as to the grasp which the trial judge had of the issues of the case and of the law properly applicable to them. This is shown by one statement made in disposing of the motion for a directed verdict, which covers the case in a few words. He said:

"I think that, under all of the circumstances, it is a question for the jury to say whether or not the unauthorized invitation of the driver was acquiesced in (by Clarke) so as to have become ratified by the company, and then if it was, whether or not the subsequent action of the driver was negligent as respects this boy so as to make the company liable for the painful injuries which he has received. If the unauthorized action of the driver was never ratified by the company, then the boy was a trespasser, or at the very best, a mere licensee, to whom, under the rules of law prevailing in this state, the company owed no other duty than that of refraining from acts wilfully injurious. If, however, he was there at the express or implied invitation of the company, the latter owed him the duty of exercising reasonable care."

From this very clear statement of the issues and of the law applicable to them, it is plain that the case as tried turned mainly on the defendant's ratification of Brady's unauthorized invitation. Its ratifi

cation, if made at all, was made through Clarke, the stable foreman, and, therefore, depended, first, upon the act of Clarke in acquiescing, and second, upon Clarke's acquiescence being within the scope of his authority to speak for the defendant in a way that bound it. What was the scope of Clarke's authority? This was a question of fact, which, in the state of the evidence, could be determined only by the jury. But when the learned trial judge came to charge the jury, he failed-inadvertently, we think-to submit the question, which, in his previous discussion of the law, he had recognized was for the jury. This question, stated broadly, is, whether acquiescence by Clarke in Brady's invitation was within the scope of Clarke's authority, and, whether, accordingly, the defendant had, by Clarke's acquiescence, ratified Brady's unauthorized invitation and had become liable for its consequences.

The judge submitted only the question, whether Clarke did in fact acquiesce. The jury were instructed that the test of this question was what Clarke did or failed to do, and were told that if they found that Clarke did not see the boy on the wagon, then no duty devolved upon the defendant and no liability ensued; but, if, on the contrary, they found that he saw the boy on the wagon and did not make him get off, then there arose in the defendant a duty of reasonable care to the boy, for violation of which by Brady the defendant was liable. We feel that in failing to submit to the jury the question of the scope of Clarke's authority to acquiesce in Brady's unauthorized invitation, the learned trial judge fell into error. This, we think, was a question for the jury. Acquiescence by Clarke in a way that bound his employer depended upon the scope of Clarke's employment. Without first determining the scope of his employment, it is quite impossible to determine his ability to acquiesce in a way that legally bound his employer.

It appears in the testimony that the defendant had instructed Clarke to order boys off the wagons. In imposing this duty upon Clarke, the plaintiff argues, the defendant clothed him with control over wagons and their occupants with full authority to speak and act for it, and therefore it conferred upon him authority to acquiesce in Brady's invitation in a way that made the defendant liable for Brady's negligence. But Clarke's authority to acquiesce and thereby bind the defendant cannot be gathered alone from the defendant's act of imposing upon him a duty to warn boys off wagons; it must be gathered from evidence of Clarke's position in representing the corporation as foreman and as being the corporation at that place, in the sense of being the official or employé through whom the corporation there spoke and acted. But much of the plaintiff's testimony as to Clarke's authority was controverted by testimony for the defendant, by which it intended to show that Clarke was a mere stableman without authority over anything but the teams. In th state of the testimony, we think the scope of Clarke's authority to bind the defendant was a question which the defendant had a right to have submitted and determined by a jury. Because the question was not submitted, and on this ground alone, we direct that the

Judgment below be reversed and a new venire be awarded.

On Petition for Rehearing.

PER CURIAM. [2] By their petition for rehearing, the plaintiffs complain that this court disposed of the writ of error and reversed the judgment in this case on a matter not raised by assignment of error based on any exception in the record. No other error is charged.

It appeared at the argument that the crux of the case was Clarke's authority to ratify the unauthorized act of the defendant's servant and thereby make the defendant liable for his negligence.

Though plainly appearing in the record, this question was not raised by assignment of error, nor was it discussed in the briefs. We, therefore asked for supplemental briefs on this one question. The briefs, when filed, as well as the record, when read, disclosed very certainly that this matter had not been submitted to the jury. This omission we thought constituted error, which, though not assigned, we noticed under rule 11 of this court (224 Fed. vii, 137 C. C. A. vii). P. & R. Ry. Co. v. Marland, 239 Fed. 1, 152 C. C. A. 51.

The petition is dismissed.

WASHINGTON & C. RY. CO. v. MOBILE & O. R. CO.
(Circuit Court of Appeals, Fifth Circuit. January 7, 1919.)
No. 3230.

1. CARRIERS 202-INTERSTATE COMMERCE-DIVIDING EARNINGS-ILLEGAL

TRANSACTION-RECOVERY.

Where plaintiff and defendant had a joint tariff providing a through rate on lumber shipments, but there was no provision for remilling at the point of junction, and defendant, on shipments remilled, collected the local rate to the junction point, plaintiff, though it paid defendant a portion of the through rate, may recover the same, regardless of knowledge of the true facts; the transaction violating the Interstate Commerce Act (Comp. St. § 8563 et seq.), and the rule that the courts will refuse redress to joint violaters of the law having no application.

29-REGULATIONS-DIVIDING EARNINGS "PUBLIC CORPORA

2. CARRIERS

TION."

A railroad company is a "public corporation" charged with public duties, and in view of the rate-making powers of the state such a company cannot make voluntary payments to another railroad company out of rates which it has collected and is entitled to.

[Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Public Corporation.]

3. CARRIERS 29-INTERSTATE COMMERCE-DIVIDING EARNINGS.

Where defendant railroad company was not entitled to any part of the rates received by plaintiff, the shipment not being one falling within a joint through rate, held, that plaintiff could not make voluntary payments to defendant, for that would defeat the purpose of the Interstate Commerce Act (Comp. St. § 8563 et seq.).

4. EVIDENCE

208(7)—JUDICIAL ADMISSIONS-DEMURRERS.

Though a demurrer to a plea is sustained, an admission of act therein may be considered.

5. APPEAL AND ERROR ~1051(3)—REVIEW-HARMLESS ERROR.

Where defendants own plea admitted the facts shown by evidence, the admission of such evidence, though erroneous, was harmless.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

6. CARRIERS 202-CHARGES-CONNECTING

CARRIERS-OVERPAYMENT-RE

COVERY.

Where plaintiff sued to recover from defendant amounts paid to defendant as its share of joint through rates, and it appeared that plaintiff was not entitled to recover on all of the cars on which such rates were paid, plaintiff was bound to establish its case by showing the shipments and cars on which it was entitled to recover.

7. APPEAL AND ERROR

1175(1)-REVIEW-HARMLESS ERROR.

Where a judgment for plaintiff was for too large an amount, and the record did not contain evidence from which the error might be corrected, the case must be remanded.

In Error to the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge.

Action by the Mobile & Ohio Railroad Company against the Washington & Choctaw Railway Company. There was a judgment for plaintiff (242 Fed. 531), and defendant brings error. Reversed and remanded.

Harry T. Smith and Wm. G. Caffey, both of Mobile, Ala., for plaintiff in error.

S. R. Prince, of Mobile, Ala., for defendant in error.

Before WALKER and BATTS, Circuit Judges, and EVANS, District Judge.

BATTS, Circuit Judge. The Washington & Choctaw Railway Company has a point of junction with the Mobile & Ohio Railroad Company at Yellow Pine, Ala. Both railroads are common carriers, under the jurisdiction of the Interstate Commerce Commission. Joint tariffs were published, covering shipments originating on the Washington & Choctaw and transported over the line of the Mobile & Ohio. The latter company instituted suit against the former for sums paid upon statements of the defendant of amounts claimed as due as its division of the through rate from points on its line. It was alleged and proved that the course of business was for the Washington & Choctaw to transport lumber from points on its line to Yellow Pine, where it was remilled or redressed, and that thereafter further shipment was made on through bills of lading from the original shipping point. The contention is made that these were not through shipments, but that the initial shipment was concluded at Yellow Pine, and that another shipment was begun at that place over the Mobile & Ohio. It is alleged and proved that the Washington & Choctaw collected a local rate from the shipper to Yellow Pine.

The circumstance that the Choctaw received its local rate, and thereafter received a part of the through rate from the Mobile & Ohio, cannot affect the case. The Choctaw is not, of course, entitled to both a local rate and a division of the through rate. But this case is concerned alone with the right of the Mobile & Ohio to recover that part of the rate improperly collected from it by the Washington & Choc

taw.

[1] The defense is made that the Washington & Choctaw and Mobile & Ohio were joint violators of the law, and it is contended that the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

courts will refuse redress when either of the parties to an illegal transaction appeals to the courts. The Mobile & Ohio claims that it was without knowledge of the fact that these were not through shipments; but it insists that, even if it had known of the facts which make the transaction illegal, it would, nevertheless, be entitled to recover.

The general rule with reference to recovery by one person against another in a transaction involving illegal acts upon the part of both is well settled. No general rule of this kind can apply to a case in which the rights of the parties are governed by the unequivocal terms of the law. It is a part of the duty of the Mobile & Ohio Railroad to collect from all shippers and from all railroads all that is due to it under any tariff under which it is operating. If it should collect less than it is entitled to, or pay out too much on a joint rate, it is under obligations to collect the balance, or the amount erroneously paid, as definitely as it is under obligations to return any excess charged, or any amount improperly retained.

The method used by the Washington & Choctaw was clearly in violation of the law. Its illegality was not dependent upon the fact that it secured a double rate. No tariff promulgated by it, or by it and connecting lines, provided for stoppage of the lumber in transit for remilling or redressing. It had the right to collect a legal rate from points on its road to Yellow Pine. As to shipments originating at Yellow Pine on the Mobile & Ohio, it had no rights of any sort, and was not entitled to any part of any rate received by the Mobile & Ohio. If by deceit or misstatements, or by any understanding with the Mobile & Ohio, or otherwise, it secured a part of the rate to which the latter was exclusively entitled, it violated the law, and was under obligations to return to the Mobile & Ohio that which it had unlawfully received.

If the Mobile & Ohio and the Washington & Choctaw both had cognizance of the fact that shipments were being made and divisions being effected under a tariff not promulgated in accordance with law, or not promulgated at all, both concerns became liable for violation of the Interstate Commerce Act (Comp. St. § 8563 et seq.); and it would be the duty of both to see to the restoration of that which had been unlawfully exacted or paid.

[2, 3] Defendants make the proposition that, after having received money in payment of a freight charge, the Mobile & Ohio had the right to do with it as it pleased, and the right to give it to the Washington & Choctaw, if it so desired. This proposition cannot receive the sanction of the courts. It is a mistake to assume that the railroad companies may do as they please with that which they receive. They are public corporations, charged with public duties, and those duties. cannot be performed without a proper conservation and administration of their revenues. The rate-making bodies of the country must see to it that reasonable rates are fixed, with the view of enabling the companies to perform their public duties. The proper fixing of rates is inconsistent with an unrestrained right upon the part of the railroad companies to donate or otherwise dispose of their funds, except for the purposes and in the manner contemplated by the laws. Even

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