
    Wood v. C., M. & St. P. R’y Co.
    1. Railroads: authority of station agent: question of fact. The question whether, or not the station agent of a railway company has, as such agent, authority to bind the company by a contract to furnish cars to a shipper at his station at a particular time, is one of fact and not of law, and it was error, first, to reject testimony offered by defendant to prove that its agent had not such authority, and second, to instruct the jury on the theory that such agents have such authority as matter of law. Beck, J., dissenting.
    
    
      Appeal from Clayton Circuit Court.
    
    Thursday, July 13.
    The plaintiff alleges that the defendant contracted to furnish the plaintiff, on the 16th day of October, 1879, two cars in which to ship potatoes from Enfield, a station on defendant’s road, to Denison, Texas; that defendant failed to furnish the cars until the second day of November, and that by reason of this delay the potatoes were frozen, to the damage of plaintiff in the sum of $300. The cause was tried to a jury, and resulted in a verdict and judgment for plaintiff for $452.44. The defendant appeals. The material facts are stated in the opinion.
    
      W. A. Hoyt and NoToles & Upclegraff.for the appellant.
    
      W. A. Preston, for the appellee.
   Day, J.

The plaintiff testified that he made the contract for the cars with J. C. Barnes, the station agent of the defendant at Strawberry Point. No proof whatever was introduced of the scope of his agency or £he extent of his power, nor of the manner in which he had been held out to the public by the defendant. J. C. Barnes was introduced as a witness on behalf of the defendant and testified that he agreed only to try to get the cars for plaintiff by the time named. Barnes was asked the following questions by defendant: “State whether or not, as agent for the defendant, you had, at this time, any authority to contract to furnish cars, at any point, at any particular time.”

The plaintiff objected to this question as immaterial, irrelevent and incompetent. The objection was sustained, and the defendant excepted. The defendant asked the court to instruct the jury as follows: “The burden of proof is upon the plaintiff to show that J. 0. Barnes, the station agent of defendant, was authorized to bind said defendant by a contract to have cars at Enfield ready for loading upon any particular day; and the fact that said Barnes was station agent of defendant at Enfield aforesaid, is not sufficient evidence to prove that he had authority to bind defendant by such contract.”

The court refused to give this instruction, to which the defendant excepted. The court instructed the jury as follows:

“If you find from the evidence that the railway company, by its agent at Enfield, made an agreement with the plaintiff to have Cars at that place on the 16th day of October, 1879, for the shipment of the potatoes in question, and if you find that the plaintiff had his potatoes there for shipment on that day, and was prevented from so doing in consequence of the defendant’s not having the cars there, and if you further find that the plaintiff was diligent to preserve the potatoes from damage until they could be shipped, and that in consequence of such neglect to have the cars there, the plaintiff’s potatoes were frozen, then the defendant is liable for such damage.” To the giving of this instruction the defendant excepted. These several actions of the court are assigned as error. The court evidently assumed that a station agent, as such, must, as a matter of law, have authority to bind the company by his contract to furnish cars at a given station, at a particular time. It is urged by appellant that it would he impracticable to confer such power upon a mere local station agent. It is said that the disposition of cars must, of necessity, be under the control of some central head, cognizant of the necessities and demands of the whole line of railway. There seems to us to be much force in these suggestions. But we have not now to deal with the question whether it would be practicable to confer such power, but whether such power has in fact been conferred, or the station agents of the defendant have been held out to the public as possessing such power. This is a question of fact, and not of law. Courts cannot say as a matter of law that station agents must possess the power to bind the company by such contracts, nor can the courts take judicial notice that such agents possess such power, or are held out to the world as possessing it. The defendant proposed to show whether or not the agent did possess power to bind it by such a contract. In rejecting the proffered testimony the court erred. The court also erred in giving the instruction excepted to and in refusing the one asked.

Reversed.

Beck, J.,

dissenting. — Railroad corporations as common carriers are under obligation to receive and transport, with promptness and fidelity, all property delivered at their cars or at places or in warehouses designated by their course of business. The time of the receipt of property for transportation may be regulated by contract between carriers and consignors.

Railroads are managed by officers of the corporations at their principal place of business, who employ subordinates at the various towns and stations through which the roads run. These subordinates are called station agents and they have the authority to receive property for transportation. It cannot be pretended that if a consignor offers property for transportation the station agent-is not authorized to bind the corporation by a contract to carry it. The ■ company cannot protect itself by witholding authority from its agent to make such contract. If it could do this it would be able to defeat the. rule obligating it to receive and carry all property offered for transportation. In order that it may discharge this obligation it employs station agents, and the law will not permit it to. so limit the agent’s powers that it may refuse to carry property at the pleasure of its officers. If a station agent can contract to carry property to-day, he may bind the corporation by a like contract-to carry it to-morrow. This power of the station agent to contract for future transportation is of the first importance to the business of the country. It is certainly true that much of the property transported by railroads is carried under contracts of this character.

The most important duty of station agents, so far as shippers are concerned, is to provide cars for the future transportation of property. Shippers must know the time cars will be supplied them in order to have the merchandise at the depots, or .elsewhere, ready for shipment. In the case of live stock and perishable articles the railways always contract to furnish cars at a given time. Any other course of business would entail loss upon shippers of such articles and would operate as an embargo upon the business of shipping fruits, vegetables, ice, poultry, and even fat hogs. No shipper could buy potatoes in the fall of the year and store them in warehouses, unless he could depend upon the contracts of the railroads to furnish him cars to ship them before the freezing weather should set in.

As a matter of fact, in the course of the business of the roads, station agents do make contracts for the furnishing of cars and are authorized to do so. -The station agent and no other person is accessible to the consignor. It is true that the cars of a railroad are under the control of one officer, but he speaks through the station agent, who is accessible to him by telegraph every minute of each day. The station agent makes the contract under the direction of the proper officer having control of the cars. • As it is impossible for the shipper to contract with any other officer, and as the station agent is authorized to' make contracts for cars, his contracts are binding.

These consideratio.ns lead me to the conclusion that the law will regard the station agent as fully authorized to make contracts for the future transportation of property.. It was not, therefore, necessary for plaintiff to prove that the station agent was authorized by the defendant to make the contract for the transportation of his potatoes at a future day. The law presumes that he did possess such power. • In my opinion the judgment of the Circuit Oourt ought to be affirmed.  