Lewis v. Albemarle & Raleigh Railroad

*185 Merrimon, J. (after stating the facts). The defendant’s ■counsel contended on the argument, that it is alleged in the complaint that the plaintiff was employed “as a regular (or permanent engineer of the company,” the defendant — that this allegation is denied by the answer, and, therefore, the issue, “ was the •plaintiff employed as a regular or permanent engineer of the •company?” proposed by the defendant on the trial, and which the Court refused to submit, ought to have been submitted to •the jury. The refusal of the Court to submit this issue is .assigned as error. The complaint seems to have been prepared hastily, and it must be conceded that it is not very formal, — that it lacks precision, and contains redundant matter. While it is alleged in terms that the plaintiff was employed by the 'Vice-President •and Superintendent of the defendant “ to aot and serve thereafter ■as its engineer,” it is plain that the scope and purpose of the •complaint is to allege, informally it is true, that the plaintiff was •employed as a civil engineer for an indefinite period of time, to render service as such to the defendant, not for a stipulated salary, or any particular measure of compensation, but so much as his services might reasonably be worth while his employment ■continued. It is not alleged in terms or effect- that he was employed as Chief Engineer, or “ as a regular or permanent engineer,” but simply to “ act and serve as its engineer.” The facts •constituting the plaintiff’s cause of action are so fully and •broadly stated, that he might recover upon the special contract, ■or on a quantum meruit, as was held in the similar case of Jones v. Mial, 82 N. C., 252. The gist of the action is not to recover a salary claimed by the plaintiff as Chief Engineer, or as “a regular or permanent engineer” of the defendant, but to recover reasonable compensation alleged to be due the plaintiff for services rendered the defendant in pursuance of the alleged employment, or for services rendered as engineer to it, of which it took and had benefit, under such circumstances as created an obligation upon it to pay *186 the plaintiff just compensation for the same. The issue therefore raised by the pleadings, was substantially the first one submitted by the Court to the jury. That proposed by the defendant was immaterial and unnecessary, because the question raised was not as to the character, kind, or grade of the office or place filled, as whether he was Chief, or regular or permanent engineer, but whether or not he rendered services as engineer of the defendant, as alleged. It was further contended, that the evidence produced on the trial did not support the allegations of the complaint, upon the ground that the Vice-President of the defendant had no authority to employ, or to sanction the employment of the plaintiff as Chief Engineer by the Superintendent of the defendant. It was conceded, and the Court so told the jury, that the Vice-President had no such authority. But really that was immaterial, for the reason already assigned, that the plaintiff does not sue to recover salary or compensation as Chief or regular or permanent engineer. But granting that the Vice-President could not appoint, nor sanction the appointment of the plaintiff as such Chief Engineer, it does not necessarily follow that he could not employ or sanction the employment of him by the Superintendent “to serve and act as engineer,” as alleged in the complaint. The defendant admits in the answer the projected extension of its road east and west. In the nature of such work, it needed and required the services of a Civil Engineer. If its-President and Directors lived in New York; its general business office was kept there; its President seldom visited the road— only twice during the years 1882 and 1883 — and the projected extension of the road was actually managed and controlled by the Vice-President and Superintendent, as the evidence tended to prove, then the Superintendent and Vice-President might have employed the plaintiff as alleged “ to act and serve as its Engineer,” and any fair and just contract in that respect would be binding on the defendant, because the nature and scope of the *187 work they hud the control and management of, rendered the employment of an Engineer necessary, especially in the absence of a Chief, regular, or permanent Engineer. The fact that they were permitted by the defendant — its chief officers residing in New York — to have the control and management of such work, implied their agency and authority to employ the necessary labor, of whatever kind, to prosecute it successfully, and for such length of time as might be necessary. No formal resolution or order of the President and Board of Directors of the defendant was necessary to confer on the Vice-President and Superintendent power to prosecute its work, and employ engineers and laborers to that end. Their power, their agency, for that purpose was implied from the nature and scope of the work to be done, and the absence of the President and Directors at so great a distance, while they were openly and notoriously in charge of it. From the nature of the work tobe done, persons dealing with those in charge of it, had the right to understand and infer that they had authority to employ such service as was necessary to its prosecution. Moreover, if the Vice-President and Superintendent assumed the authority to employ the plaintiff as alleged, and afterwards the President and Directors of the defendant recognized such employment and ratified it formally, or by acts that implied such ratification, such as receiving from the plaintiff as engineer, reports of surveys, maps and charts, and paying cheeks drawn by the Vice-President to pay the plaintiff compensation from time to time, and the like acts, it would be bound by the contract of employment. Such acts would imply notice of such employment and its nature, and a ratification of it. The evidence objected to by the defendant, embraced by its two first exceptions, was obviously pertinent and competent. It went strongly to show that its agents had employed the plaintiff'as alleged in his complaint. And so also was the evidence embraced by the third exception. It tended to show that the President, and through him *188 the Directors, had knowledge of the employment, and their approval of it. The Court properly declined to give the jury the second special instruction asked ,for by the defendant, because there was no allegation in the complaint that the plaintiff was the Chief or regular Engineer, nor was there any issue raised or submitted in that respect. It also properly declined to give the sixth special instruction. If the plaintiff was employed as engineer, as he alleges, for an indefinite period of time, and during all the time of his employment he was under the direction and control, and at the command of the defendant through its officers, and ready and willing to do service, he ought to receive compensation. It would be unjust and unreasonable for the defendant to employ the plaintiff, have the control and disposition of his time, and not pay him for it. It may be, that the defendant’s agents had a wise motive in keeping him unemployed part of the time ; if they did not, it was their neglect or their folly to do so, and the defendant ought in justice to pay for it. There was evidence tending to prove that the plaintiff was employed as he alleged, and that he was at all times at work, or ready to work, during the time of his employment, and it was for the jury to give it proper credence and weight. It would be otherwise, however, if the plaintiff was employed, as alleged by the defendant, to do particularly special service; or if there were intervals when he did, or was at liberty to do, service for third persons. We think the instructions given the jury by the Court were substantially correct. What it said of the evidence tending to show that the plaiutiff was employed as Chief Engineer was scarcely correct — that evidence was pertinent only for the purpose of showing that the plaintiff was employed as engineer, with the knowledge and implied, sanction of the President and other officers. But this inaccuracy was corrected, in that the Court told the jury expressly, that the plaintiff was not Chief *189 Engineer nor entitled as such — that if he was employed permanently to do service as engineer, and such employment was known to the President and other officers, and they acquiesced in or ratified it, and he discharged his duties as such, then he would be entitled to recover the value of his services while so employed; and if he was not employe! permanently, then he would be entitled to the value of the services he actually rendered. This gave the jury to understand the purpose of the first issue submitted to them, and the reason why they should allow him compensation for the whole time of his employment, or only for the work he actually did. There was evidence tending to prove that the employment was continuous, and in that sense permanent while it lasted, and it was the province of the jury to determine its weight. No error. Affirmed.