
    Railroad v. Hurst.
    1. Military Orders. Protection to citizen obeying. An order issued by a regularly constituted. military authority, during the civil war, protected the citizen obeying it. -It was not his duty, nor in his power, to call in question the legality of the order, or the authority of the officer to issue it.
    2. Same. Same. If a citizen and a Railroad Company were ordered by the military authorities to transport the cotton of defendant in error, from Chattanooga to Atlanta during the war, and they obeyed, and a part of the cotton was lost or destroyed, but not through the negligence or fault of the Railroad, it would not be responsible for such loss. It was the duty of defendant in error, having notice of such orders and the transportation of his cotton, to look after it himself. If loss ensued from his failure to do so, he must bear it.
    3. Evidence. Political sentiments of litigants. It was error in the Circuit Judge to permit the political sentiments of the parties to the litigation during the war, to be given in evidence. It was error to charge, “ Such evidence had nothing to do with the case, except as it may aid in a better understanding of the legitimate facts and circumstances of the cáse,” without telling the jury how such proof could aid them. The value and weight of the testimony the jury must determine; but the legitimacy of testimony is for the court to pass upon. The proof allowed in this case was illegal, and could only excite prejudice.
    PROM HAMILTON.
    Appeal in error from Circuit Court of Hamilton, July Term, 1872. E. E. Gillenwaters, J.
    Jsro. Baxter, for Railroad.
    This suit is by the defendant in error, to recover $50,000, for an alleged loss of 176 bales of cotton. The facts are as follows: — In the spring of 1862, the defendant stored 186 bales of cotton with J. L. M. French, a commision, storage and forwarding merchant, of Chattanooga, with special instructions to retain it until he gave him further directions in regard to it. Shortly after it was so stored with French, a detachment of the Federal army approached Chattanooga, planted itself on the opposite side of the river and threw some shells into the city, one of which passed through French's warehouse. Gen. Ledbetter, commanding the rebel forces in Chattanooga, began preparations to evacuate the city, and issued an order commanding French, the custodian of the cotton, to send the cotton back to Atlanta. French, in view of all the circumstances surrounding him, decided to obey the order, and accordingly had the cotton “ drayed ” to the defendant’s depot, accompanied with written instructions to carry it to Atlanta. It was accordingly received, and defendant executed a receipt undertaking and agreeing to carry and deliver the same to Hurst, -the owner, at Atlanta. The defendant did so carry it. But Hurst, the consignee and owner, was not there to receive it, and had no one to represent him; and after due enquiry and a failure to find Hurst or any one authorized to act for him, the defendant, as by law it was authorized to do, (see Angel on Carriers, sec. —) turned the cotton over to a solvent and reliable commission merchant and warehouseman, to keep for the plaintiff Hurst. In the conflicts and casualties of the war, the cotton was destroyed and consequently lost, and it is for this loss this suit is being prosecuted.
    The plaintiff declared in four counts:
    1st. For an alleged failure to carry the cotton from Atlanta to Dalton, Georgia, and there to deliver it to the East Tennessee & Georgia Railroad.
    2d. For failing to carry the cotton from Atlanta, Georgia, to Chattanooga, to be there delivered to the East Tennessee & Georgia Railroad, to be carried to the plaintiff at Athens; but that after carrying the cotton to Chattanooga, the defendant carried it back to Atlanta, Georgia, against plaintiff’s remonstrances, where it was lost.
    3d. Is a count in trover for an alleged conversion.
    And 4th. Alleges that defendant carried the cotton from Chattanooga to Atlanta against plaintiff’s consent, and failed and refused, when requested, to receive and ship back from Atlanta and carry it to Athens, Tennessee. It is not plain whether the plaintiff expected, under this count, to recover because of the transportation from Chattanooga to Atlanta, or for defendant’s refusal, when requested, to receive and ship it from Atlanta to Athens, Tennessee. The pleader seemed to have had no clear idea himself at the time of draught-ing this count. But it is probable that the pleader-intended, (and such I presume will be the legal construction), to seek a recovery of damages for defendant's refusal to receive and carry the cotton, when requested, from Atlanta to Athens.
    Such, may it please the court, is the case as presented by plaintiff's declaration.
    This case was once before this court on appeal. If the opinion then delivered is authority, the legal merits of this case are definitely and' conclusively settled. But on six different trials since had in the court below,, the courts and the juries have invariably repudiated or evaded the law of the case as adjudged by this court. I will not. only cite the former decision of this court in this case, but cite other authorities and endeavor by argument to support the decision made by this court in this very identical case.
    Factors, commission merchants, etc., are quasi public-agents. Their authority may be limited by special instructions, which is always binding between them and their principals and third parties cognizant of the private instructions • limiting their authority. But third parties, unless they have personal knowledge of the special instructions, have the right to deal with them upon the supposition that they possess all the powers and authority usually accorded to such agents and recognized by law.
    In this case the plaintiff in error — the Western & Atlantic Railroad — had no notice of the special instructions of Hurst to French to hold the cotton for further orders from him. French says, in one part of his evidence, that “they,” meaning the Railroad employees, '“knew all about it.” But he meant, as the court will clearly see, that defendant’s agent knew that it was being shipped under military order. There is and can bé no pretense that the W. & A. Railroad, or any of its agents, knew that Hurst had instructed French to hold it until he directed him to ship it.
    But if the defendant did know this fact;, it also knew that agents, in unforeseen emergencies, had the right to depart from their instructions. Story’s Agency, secs. 85, 114, 118; Parsons on Contracts, 1 vol., p. 94.
    In view of the foregoing authorities, this court in this ■case in the former appeal said, in substance, “that if the jury should find that the military order from Led-better was addressed to French and not to the W. & A. Railroad, the responsibility of deciding whether he would or would not obey it was with French, and that if he, French, decided to obey it, and tendered the cotton to the defendant for shipment to Atlanta, the defendant had no power to revise French’s decision of the question, but was obliged to receive and transport it according to French’s directions.”
    The defendant’s counsel on this last trial requested the court so to instruct the jury. But his Honor thought to improve on the language of this court, and. after some general and desultory remarks, said: “ If the proof Is that French was the agent of the plaintiff, that as such he had the custody of the cotton in controversy for its safe keeping, that for this purpose it became necessary to remove it, that he did so through defendant as a common carrier, then there is no liability by reason of the shipment by defendant.”
    The material distinction between the instructions asked for and the instructions given, are broad and obvious.
    With the further view, it would seem, of breaking-the force of the clear and explicit exposition of the law as laid down by this court, his Honor proceeded: “ Where goods are tendered for shipment and there is no notice, actual or constructive, of fraud to the carrier, he may accept and carry, etc., without liability.” Why this instruction ? There was no evidence in this-case to make it necessary thus ■ to instruct the jury; and to do so was to weaken the principle in this case as announced by this court; and to impress them with the belief that there was something in the case evidencing fraud, of which the defendant might have had actual or constructive notice.
    After thus charging on other matters of which there was no evidence, he turns to the first question and varies his language thus: “But, if the proof is that French was the plaintiff’s agent; that a military order was addressed to him alone, ordering the shipment; that he, French, elected to obey it and make the shipment ; defendants were not bound to reverse his decision, nor enquire into the authority of the military, nor the propriety of the election of the agent,” ect., but might receive and ship; “but if the proof is that there was-collusion between defendant and French,” or “between these and the military,” in the interest of another party, “knowingly ignoring the rights of plaintiff and in frand of his rights,” then defendant would be liable.
    Then the court proceeds to say, “that if French directed or ordered the shipmet to Athens, but defendant disregarded the order and shipped to Atlanta, and the cotton was lost, plaintiff may recover.”
    Upon these points there was no evidence, and instructions on points not arising in the case, touching matters to which there is no evidence, on a mere hypothetical case, is erroneous.
    Parties are entitled to clear and explicit instructions-on the points made by the evidence, and instructions upon abstract propositions not raised by the evidence,, is error: 10 Yer., 514; 1 Head, 215; 1 Iredell, 118, 479; 2 Iredell, 61, 331; 3 Iredell, 470.
    On referring to the evidence in the record, the court will see that the shipment of the cotton by French was in the spring of 1862; that he, French, immediately by letter notified Hurst, the owner, of the fact; that Hurst received the letter in due course of mail, a day or two after the shipment of the cotton, and although he lived and remained on the line of Railroad only sixty-three miles from Chattanooga, where-the mail was carried daily, he made no reply to French’s letter, and never at any time and in any manner made known his dissent, if in fact he did then dissent from what had been done, either to French or to defendant, till he commenced this suit in 1866.
    Upon this state of facts the defendant asked the court to instruct the jury “that if French was acting under an emergency not contemplated by the parties at the time the cotton was stored, and that French acted in good faith for plaintiff’s benefit; that French reported the facts to plaintiff, plaintiff was bound to reply within a reasonable time, repudiating or dissenting from the shipment to Atlanta, and if he failed to do so, it was a ratification of the act, and that for this reason no recovery could be had.” In response the court instructed the jury substantially as requested, but in another part of his charge said: “If in case of a tort by the agent and notice to the principal, the latter is not required to repudiate the act.” This is objectionable, because there was no evidence of a tort •on the part of French; 2ndly, if there was, it would make no difference; and 3rdly, he did not, as he ought after introducing this new subject, to which there was no evidence or occasion to refer to, explain to the jury what a tort was. Story’s Agency, secs. 253 to 258. See also an unreported case of Segó v. Martin, decided by Judge Nelson at this place, September Term, 1871.
    In the progress of the cause it was shown in evidence and argued by plaintiff’s counsel, that the State of Georgia and her authorities,' who controlled the AY. & A. Railroad, were friendly to the rebellion and willingly cooperated with the military, etc., endeavoring to impress, and doubtless did impress, the jury with the idea that because of their friendliness to the rebellion and willing cooperation with the rebellion, the AY. & A. Railroad was responsible for the order of Gen. Ledbetter, directing French to send back the cotton.
    
      To avoid such influence with the jury, defendant asked the court to take the evidence from the jury, and to instruct them “that such willing cooperation by Georgia or by the employees ' of the W. & A. Railroad with the rebellion, will not render the defendant liable.” But the court gave no instruction upon this point, but said, “ any evidence now before you, tending to show that the State of Georgia or employees of defendant cooperated with the rebellion is withdrawn, except such, if any there be, which tends to show cooperation by the defendant with the rebellion, or any party or cause in fraud of the rights of the plaintiff in the shipment of the cotton in controversy.”
    This is erroneous. 1st, because the court did not instruct as prayed for; 2ndly, because he suggests, by submitting the question that there was some evidence of fraud as against the plaintiff by defendant in the shipment of this cotton; 3rdly, because by his manner of stating it, he leaves, or may have left, the jury under the impression that defendant’s cooperation' with the rebellion was evidence of its liability.
    It was also insisted by defendant that the political views of the parties had nothing to do with the trial. On this point the court delivered itself of this luminous legal exposition: “ The political relations of the parties must have nothing to do with the cause, except as they may aid in a better understanding of the legitimate facts and circumstances of the case.” This is exceedingly clear. The evidence- is objected to as incompetent, but instead of ruling it out as illegal, the court admits it and then undertakes to guard against any improper use of it, and tells the jury that it is not to be considered, “except as it may aid in a better understanding of the legitimate facts and circumstances of the case,” without defining what are the “legitimate facts and circumstances of the case,” or in indicating how or to what extent it can aid in this praiseworthy end.
    Defendant’s counsel requested the court to instruct the jury, that there was no evidence in the case to authorize a verdict for the plaintiff, on the 1st, 2nd or 4th count, which the court declined to give, but charged that if they found for the plaintiff, they could return a general verdict on the declaration : 1 Iredell, 440. The court is bound, in any case, to pronounce whether the evidence corresponds with the allegations. 1 Iredell, 118, and numerous other decisions.
    There are in the admission of evidence and charge, fifteen or twenty other errors, to which it is not deemed necessary to call the attention of the court, as those above already referred to are sufficient for the present purpose.
    VanDyke, Cooke & VanDyke, for Hurst.
   Tukney, J.,

delivered the opinion of the court.

During the late war between the States, the military orders of either of the contending parties in occupation of the territory, issued from a constituted military authority, were of themselves protection to parties, soldiers or citizens acting in obedience to them. The power of military commanders backed by bayonets, and the organization of courts martial, and the not unfre-quent punishment administered without trial or opportunity of defense, and upon the mere order of a military satrap, soon taught subordinates and citizens that resistance was futile, and a discussion of the legality or righteousness of the command empty folly. There was no going behind the order. The military was a law .unto itself. Then- if from its undeniable force or-conclusiveness or from a fear of punishment for disobedience to it — without regard to its soundness in law and right — parties to whom or for whom it was issued obeyed the order, they are protected, the responsibility resting with him from whom it emanated. To require individuals or corportions to resist or disobey a military organization supported by a government, is to-change the law and require an impossibility. The law is founded in reason, adapted to the capacity of the-citizen, and not demanding unreasonable conduct from its subjects. An order in the words:

Head Quarters, 1st Brig., E. Tenn.,

“Chattanooga, May 1, 1862.

“Mr. John L. M. French — Sir: The General commanding this post, directs me to say that he wishes the cotton, 186 bales, you have in store for one Mr. J. L. Hurst, and two bales for Mr. Spurlock, to be shipped to Atlanta either to-day or to-morrow. You will please inform the General when the cotton has been shipped. Very respectfully,

“ H. Goldthwaitt, A. A. G.”

is a peremptory order to French, and when presented to the W. & A. Railroad Co., with an order for transportation, amounted to a peremptory order to tbe Company, which is now the plaintiff in error.

By it, French is commanded to report to the General ■ that the shipment has been made, and in order that he may make that report, an order of transportation is given him upon the carrier. Presenting these with the cotton, French relieves himself by shifting-the responsibility to tbe carrier, and its disobedience would have subjected its employees in charge of the road to punishment.

If then, in obedience to this order,- the plaintiff in error shipped the cotton to Atlanta, though against the will of Hurst its owner, it will be protected from liability for the act of shipping.

If when the cotton reached Atlanta, the .plaintiff in error, through its agents and employees, exercised reasonable care and diligence in securing storage 'and protection for it, until such reasonable time as within which the owner might look after it, then it cannot be made responsible for its destruction.

If within a period after the arrival of tbe cotton at Atlanta, too short for the owner to have attended to it,' he having notice of its shipment under the military order, part of the cotton was burnt without the fault or negligence of the plaintiff in error, it would not be liable.

If the defendant in error was notified of the shipment to Atlanta, it was his duty to have looked after his interests himself or by an agent, without unreasonable delay; failing to do so, he would have to sustain .any loss ensuing.

It is to be borne in mind, that these principles are announced with reference to a military order and action under it.

It is the duty of a court charging a jury, to confine itself to the questions of law raised by the facts of the case, and not to travel out of them and charge upon theoretical or abstract propositions not raised by the evidence. Such course is calculated to confuse and mislead the jury, and when it plainly appears as in this case, or is even doubtful that such has been the effect, it is error.

If a party is permitted to prove the political views of his adversary, over the objections of that adversary who 'also asks to have the proof withdrawn, in response to which request the court instructs the jury: The political relations of the parties must have nothing to do with the case, except as they may aid in a better understanding of the legitimate facts and circumstances of the case,” in a proper case for such charge, it is. the further duty of the court to explain how and in what way such proof may aid in the better understanding of the legitimate facts, etc. The valúe of facts is a question for the jury — their legitimacy one for the court. In this instance the court submits both to the jury.

The proof was illegal in this case, as furnishing no aid to the jury in arriving at truth, and is calculated to excite prejudice.

Reverse the judgment.  