Davies v. Eastern Steamboat Co.

94 Me. 379 | Me. | 1900

Powers, J.

This is an action against a common carrier of passengers by water to recover damages resulting from the nondelivery of a telegraphic message directed to “G. L. Wentworth, Str. to Boothbay, Bath, Maine.” Wentworth was a carpenter employed by the plaintiff to go from Augusta via Bath to Isle of Springs, and there build a cottage. The message directed a change in the building, and was offered by the telegraph company to the captain of the defendant’s steamer, upon which Wentworth was a fare-paying passenger, and by direction of the captain it was delivered to the purser of the same steamer. The case was tried in the Superior Court of Kennebec county, resulting in a verdict for defendant, and the plaintiff excepts to the instruction to the. jury, that the defendant would be required to use slight diligence only in endeavoring to deliver the telegram, and would be liable only for gross negligence for failure to deliver it to the proper party.

The defendant sets up, that in directing the telegram to be delivered to the purser, the captain acted in excess of his authority, and outside of the scope of his employment and of the business in which he was engaged, and that, therefore, the defendant itself never received the telegram or became charged with the duty of its delivery.

The nature and scope of the defendant’s business, whether the particular act was necessary for its successful prosecution, the usual and ordinary course of its management by those engaged in it at the time and place where it was carried on, were Questions of fact for the jury to be determined from all the circumstances of the case; and from them it was for the jury to say whether the act in question was within the authority of the agent or the scope of the business of the principal which he was employed to transact. The court cannot infer, as matter of law, the authority of the captain of a passenger steamboat to charge the owners with the duty of delivering telegrams to its passengers. It is a matter of fact, to be established by evidence and found by the jury. The exceptions fail to show that any evidence was offered in this case which would warrant such a finding.

The defendant was a common carrier of passengers by water. Its contract resulting from the relation of carrier and passenger, nothing else appearing, was to transport its passenger safely and with proper regard for his comfort and convenience, together with such articles and money as might be properly contained in the baggage which he brought with him. The exceptions show no express contract with the passenger for more than this, and nothing from which more can be implied. They utterly fail to show that it was any part of the defendant’s business, habit, or custom to accept telegrams for delivery to its passengers, or that it knew or permitted this to be done by its officers, servants, or agents. In general the business of common carriers of passengers on our inland waters, and that of receiving and delivering telegrams, are entirely separate and distinct, and the latter is in no proper and legal sense incidental to or connected with the former. Common carriers of passengers make no charge for such a service, and its very responsible duties and burdens should not be imposed upon them without their consent unless some rule of public policy requires it.

We cannot infer that it is necessary for the safety, comfort, or even convenience of the passenger that the duty of the delivery of a telegram addressed to him should be gratuitously imposed upon the passenger carrier. The telegraph company to whom the message has been intrusted is engaged in that business, and has the equipment and servants specially trained for carrying it on. For an adequate consideration it has entered into an express contract to deliver the message, and usually knows its contents, importance, and urgency. In discharging that duty it may select its own means and agents, and is responsible for any neglect on their part. The defendant, therefore, owed no contractual duty to its passenger to receive and deliver the telegram. It does not appear that it was a part of its business or incidental thereto. If not, it necessarily follows, nothing else appearing in the case, that the act of the captain of the defendant’s steamboat was outside of the scope of the business in which he was engaged, and not connected with the service which he had been employed to perform. For such acts the defendant is not. liable unless it held the captain out to the world as having authority, and the case is barren of any such showing. Bowler v. O’Connell, 162 Mass. 320.

It is true, as urged by the plaintiff, that the captain is the general agent of the owners, but a general agent is not an unlimited agent. His authority is necessarily restricted to the transactions and concerns within the scope of the business of the principal. Am. & Eng. Encyl. of Law, 2 Ed. Vol. 1, page 990. To bind his principal he must act within the usual and ordinary scope of the business he is employed to transact; his authority is measured by the usual extent of his employment. 1 Parsons on Contracts, p. 41. A shipmaster is a limited agent and can only bind the owners by contracts relative to the usual employment of the ship and means requisite to that employment. Kent, J., in Leonard v. Lord, 52 Maine, 389. The principal is liable"for the authorized act of his agent because it is his own act, and for the acts of his agent within the scope of the authority which he holds him out as having, or knowingly permits him to assume, because to permit him to deny it would be to permit him to commit a fraud upon innocent persons. Am. & Eng. Encyl. of Law, 2d Ed. Vol. 1, Page 990.

In the case at bar no habit or custom is shown, no holding out to the world of the captain as having authority to do the particular act. It was his own act and not that of his principal. The defendant itself never received the telegram and never became charged with the duty of its delivery, and it is therefore unnecessary to consider the instruction given as to the degree of diligence to which the defendant was bound, or the degree of negligence for which it would be liable.

Exceptions overruled.