122 F. 228 | 8th Cir. | 1903
This is an action by an alleged passenger upon a freight train for damages caused by negligence in its operation. A judgment was rendered in favor of the railway company upon a directed verdict, on the ground that the trainmaster of the defendant, who ordered the conductor to carry the plaintiff upon his freight train, was without authority to do so. This question arose upon the trial, when the plaintiff’s evidence to show authority was rejected. The plaintiff was a physician at Paris, a station on the railroad of the defendant in the state of Missouri, and he wished to ride to Higbee, another station on the defendant’s railroad, for the purpose of rendering professional services to a child in a case which demanded immediate attention. The next train from Paris to Higbee, after he received his call, was a through freight train which did not stop at Paris, and the doctor knew this fact, and he also knew that neither the conductor nor the station agent had authority to permit passengers to ride upon that train, and that some higher official of the defendant had this power; but he did not know which officer possessed-it. In this state of the case he applied to the station agent to procure permission for him to ride upon the coming freight train. The officers above the station agent and the conductor, in their order of rank, were the trainmaster, the general superintendent, and the vice president and general manager. The trainmaster had authority to stop and to move trains, but he had no power to permit a passenger to be carried upon a freight train. -This authority was vested-in his immediate superior, the general superintendent. The station master was aware of this fact, but he did not apply to the general superintendent, because it was a rule and a practice of the railway company that the station master and the conductor should seek such permissions through their immediate superior, the trainmaster, and that the conductor should obey the latter’s orders. The general superintendent communicated his orders through the trainmaster. The station master accordingly applied to the trainmaster by telegraph for permission for the plaintiff to ride upon the through freight train from Paris to Higbee. The trainmaster failed to apply to the general superintendent to grant this request, and never had any authority to do so.
After these facts had been established the court made the ruling which is challenged, and which was fatal to the- plaintiff’s case, ft rejected evidence of the following facts: The trainmaster, Davis, without authority so to do, informed the station agent that the request of the doctor to ride upon the freight train was granted, and issued an order to the conductor of that train to stop it at Paris,
Nor is it material now, after the plaintiff and the conductor have acted upon the apparent authority of the trainmaster, that his actual authority was not as- great as it seemed to be. For a master is as conclusively bound to innocent third persons by the acts of the agent, in the exercise of the apparent authority with which the master has clothed him, within the scope of his agency, as he is by the actual authority which he confers upon him. Chicago, St. Paul, Minne
The question which this case presents is fairly answered by the propositions announced by the Supreme Court in Merchants’ Bank v. State Bank, 77 U. S. 604, 644, 19 L. Ed, 1008, and by this court in Purple v. Union Pac. Ry. Co., 114 Fed. 123, 129, 51 C. C. A. 564, 370. In’ the former case the Supreme Court said:
“Where a party deals with a corporation in good faith, the transaction is not ultra vires, and he is unaware of any defect of authority or other irregularity on the part of those acting for the corporation, and there is nothing to excite suspicion of such defect or irregularity, the corporation is bound by the contract, although such defect or irregularity in fact exists. If the ■contract can be valid under any circumstances, an innocent party in such a case has a right to presume their existence, and the corporation is estopped to deny them.”
In the latter case this court declared:
“One who enters and rides upon a car or train which he knows, or by the exercise of reasonable diligence would know, is prohibited from carrying passengers, is a trespasser, and not a passenger, and the only duty of the railroad company toward him is to abstain from wanton or reckless injury to him.”
In ■ the case under consideration the plaintiff knew that the conductor had no authority, without an order from some superior officer, to carry him upon the freight train. But, when he learned that the ■conductor had an order from such an officer to stop his train and to transport him upon it, he did not know, nor would he by the exer■cise of reasonable diligence have known, that there was any defect' of authority, or any other irregularity in the issue of this order, on the part of those acting for the corporation; and there was nothing to excite his suspicion of any lack of authority on the part of the ■conductor, or of the officer from whom the conductor received the order, which he was implicitly obeying. The rejected testimony dis- • closed acts of the trainmaster and of the conductor, within the scopes of their agencies, in the exercise of the apparent authority with which the company had clothed them, and they were as binding upon the railway company as they would have been if their apparent authority 'had been actual authority. The evidence should have been received.
Counsel for the defendant in error argue at great length that, although the court erroneously rejected the testimony of authority to make the contract, yet the judgment below was right, and it should 'be affirmed, because, as they say, the contract proved by the plaintiff subjected the railway company to no liability for negligence, and there was no proof that the company was careless. They insist that the plaintiff produced at the trial below all the evidence which he
It is so ordered.
1. See Principal and Agent, vol. 40, Cent. Dig. § 254.