Silver v. Missouri, Kansas & Texas Railway Co.

| Mo. Ct. App. | May 20, 1907

ELLISON, J.

The plaintiff brought this action before a justice of the peace on the following statement of account:

“Missouri, Kansas & Texas Ry. Co., a corporation,

To Arlington Silver, Dr.

For labor done in caring for mails from trains numbers 5 and 6, at Windsor, Mo., from August 1, -1904, to January 18, 1905. $175.00.”

On appeal to the circuit court plaintiff had judgment.

There was evidence tending to prove that defendant was taking care of the United States mails which it brought in and took out of the town of Windsor on its night trains, that town being a station on its line of railway. It had a man to receive the mail from the post-office for the train and receive the mail from the train for the post-office. It does not clearly appear, but it is probable that this man was one of the night tele- ■ graph operators. Defendant had the usual employee at Windsor, known as a station agent, and he was also in charge of the telegraph office in his office in the station building. There was a strike of telegraph operators on the first of August, 1904, and this agent quit defendant’s service on that day at four o’clock as he himself testified; though plaintiff does not concede that he quit at that time. Later than that hour he requested the postmaster to engage some one to care for the mail, going out and coming in at night as just stated. The latter engaged the plaintiff and he performed that service until the following January, a period of near six months.

If we concede that the station agent had not yet quit defendant’s service when he requested the postmaster to engage some one to care for the mail, yet there was no authority shown from the defendant to such agent to make such employment. Proof that he was station agent is not proof of such authority, for we cannot know, in the absence of evidence, that a station agent has authority to hire other agents to carry the' mail between the railway station and the post-office. There is nothing in the office or employment of a station agent which would imply such authority, or which would justify any one in believing that he possessed it. For this reason the case of Baker v. Railroad, 91 Mo. 152" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/baker-v-kansas-city-st-joseph--council-bluffs-railroad-8008923?utm_source=webapp" opinion_id="8008923">91 Mo. 152, cited by plaintiff, finds no application. On the other hand, the case of Grover & Baker Sewing M. Co. v. Railroad, 70 Mo. 672" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/grover--baker-sewing-machine-co-v-missouri-pacific-railway-co-8006376?utm_source=webapp" opinion_id="8006376">70 Mo. 672, supports the view we have announced. It follows that the instruction for plaintiff should not have been given, and those refused for defendant should have been given, except its demurrer to the evidence.

We think the demurrer was properly refused from the fact that the evidence tends to prove that plaintiff performed the service for defendant for near six months. • If the service was performed for defendant under circumstances and conditions which showed that defendant must have known the service was for it and not another, it would he liable. For in permitting and accepting continuous valuable service such as was performed by plaintiff, it must be presumed there was a promise to pay for its reasonable value, even though no express employment is shown, or any amount agreed upon in payment therefor.

The judgment will be reversed and the cause remanded.

Allconcur.