Schaff v. Stripling

WILLSON, C. J. (after stating the facts as above). Appellant insists the judgment was not warranted because, he says, “there was no evidence showing or tending to show” that he was authorized by the order of the court appointing him receiver to make the contract in question. But we think the trial court had a right to presume that appellant, because he was receiver, had authority to contract with appellee to watch or guard the bridge forming a part of the roadbed of the line of railway he was operating, and that it was of no importance, therefore, that there was no direct testimony showing that he possessed such authority. There is no doubt about the railway company having a right to employ such a watchman or guard, had its property not been in the hands of the receiver, and there is no doubt, if it would have had such a right, that appellant, having charge of its property as receiver, also had such a right. 1 Elliott, on Railroads, §§ 566, 576; Jones v. Roach, 21 Tex. Civ. App. 301, 51 S. W. 549; Trust Co. v. Ry. Co., 120 Fed. 875, 57 C. C. A. 533. It was appellant’s duty as receiver to preserve the property of the railway company “that the value *266 of the railroad as a whole,” quoting from section 566 of the work cited above— “may not be impaired, and that the rights of the public to have it kept in operation as a public highway may not be infringed. To this end he is empowered to hire and pay workmen, agents, and all necessary assistants, to make contracts for the carriage of passengers and freight, and to do such other acts as are necessary in maintaining the railroad as a going concern. In the management of such a complicated business as the operation of a railroad a large discretion is necessarily given to a receiver.” And, said the authors of the work in section 576: “It accords with sound principle and reason that a receiver exercising the franchise of a railroad company shall be held amenable, in his official capacity, to substantially the same rules of liability that are applicable to the company while it exercises the same powers of operating the road.” It appeared without dispute in the testimony that Hooks was appellant’s agent to employ persons to go to Denison and guard property under appellant’s control as receiver. But appellant insists it did not appear, as it must to warrant the recovery had against him, that in employing such persons Hooks had authority to bind him (appellant) by a promise that he would provide protection for them against assaults by his striking employes. The contention seems to be predicated on the fact that Hooks was a special agent (2 O. J. 659), and the view that appellee therefore was bound to prove, and did not, that he (Hooks) was expressly authorized by appellant to make such a i>romise. While it is true, as appellant insists it is, that “a special agent is only authorized to do specific acts in pursuance of particular instructions, or with restrictions necessarily implied from the act to be done,” it is also true that such an agent, like a general agent, by implication has “all such powers as are necessary and proper as a means of effectuating the purposes for which the agency was created.” 21 R. O. D. 853. “As a general rule of law,” said Mr. Skyles, the author of the article on “Agency” in 2 0. J , at page 57S, “every grant of power implies and carries with it, as an incident, authority to do whatever acts, or use whatever means are reasonably necessary and proper to the accomplishment of the purpose for which the agency was created, unless the inference of such power is expressly excluded by the instrument creating the agency or by circumstances of the business to which the agency relates. Such incidental authority includes all acts and things which are connected with and essential to the business in hand; it is measured by the nature and necessities of the purpose to be accomplished and is prima facie coextensive with the business entrusted to the agent’s care. The means adopted, however, should be such as are most usual, such means indeed as are ordinarily used by prudent persons in doing similar business. This rule applies’ both to general and special agents, unless the manner of doing the particular act is prescribed by the power.” And the same writer says, at page 586 of the same volume of Corpus Juris: “A special authority, like a general authority, confers by implication all powers necessary for or incident to its proper execution, and acts done by a special agent while acting within the scope of his authority are as binding on the principal as those of a general agent.” And see 1 Clark & Skyles on Agency, pp. 476, 495, 498, 526 and 665; McAlpin v. Cassidy, 17 Tex. 449; Birge-Forbes Co. v. Ry, Co., 53 Tex. Civ. App. 55, 115 S. W. 333. In support of his contention appellant argues that the promise attributed to Hooks was an “extraordinary and unusual” one, which the court did not have a right to treat' as within the power of Hooks to make. As we understand appellant, the argu? ment is on the assumption that the promise was “to guard a guard.” We do not so understand appellee’s testimony as a witness. His account of what passed between him and Hooks was as follows: “I asked Mr. Hooks if he wanted to employ anybody to work for the railroad, and he said he was wanting to employ them. He told me the kind of work thdt he wanted done; that is, he said he wanted to guard a bridge. The purpose for which he said he wanted to guard the bridge was to prevent it from burning up by fire. He told, me what he would pay me a day for that service; he said he would pay me $5 a day and all expenses, and furnish me a pass from Hillsboro to Denison and a guard for protection. I asked him what’he wanted with guards, and he asked me, didn’t I know that there was a strike on up there. I told him, ‘No, sir;’ and I told him that I did not want to go if there was a strike qn. He said he would guarantee me protection. I told him I would go if he guaranteed me protection; that I would not go if he did not guarantee me protection. He said there would be a guard then at the depot at Denison to take me to the hotel and from the hotel to the bridge where I was to guard the next day; that is, to guard a bridge on the Katy Railroad. * * * Mr. Hooks said he would get me there to Denison by giving me a pass over the Katy Railroad from Hillsboro to Denison. * * * I got the pass in Hillsboro from the ticket agent. » * * When Mr. Hooks told me there at Hillsboro that he wanted me to go up there to Denison to guard a bridge against fire he told me that there would be a guard there tp meet me. * * * I said, ‘What would you want with guards? ’ He said, ‘Didn’t you know there was a strike on up there ? ’ And I told him, ‘No, sir.’ He told me that he would have guards to meet me at the train. I told him that I would not go if there was any trouble *267 up there, or danger, and he said he would guar-1 antee me protection from harm or danger; that there would not be harm from anything. He told me how they had prepared up there to protect me and what they had done, and it was just by guards. He said they already had the guards there to protect me for that purpose. I relied on his promise that there' would be guards there to protect me, I took his word that he was telling me the truth about it. I wouldn’t have went up there if I had known that he wouldn’t have guards there to protect me.” Fairly construed, we think the testimony set out showed the promise \ to be to guard and protect appellee from the strikers until he entered upon his duties as a guard at the bridge, and not to guard and protect him after he entered upon the discharge of those duties. If that was the promise, it was-not, we think, an extraordinary one in the light of the circumstances of the ease shown by the testimony, including the part of appellant’s answer set but in the statement above, admitted as evidence, and it was within the incidental and .implied power of Hooks, as an agent to employ persons to go to Denison to act as guards, to make it. Appellant complains because the court refused to permit him to prove by Hooks that he was not “instructed or authorized to employ any one to go to Denison under the name or title of guard, but in fact to be guarded by others.” There is no merit in the- complaint. It was of no importance what appellant’s secret instructions to Hooks were, if, as we have determined was the case, the trial court had a right to say that authority to make the promise to appellee in question was, under the circumstances shown by the testimony, incidental to the authority conferred upon him to employ persons to go to Denison to act as guards. And we think there is no merit in the complaint based on the refusal of the court to permit appellant to prove by the witnesses Wilson, Hagood, and Johnson that at about the same time Hooks employed .appellee to go to Denison he employed them to go there as watchmen or guards, and did not promise them, quoting from the bill of exceptions, “that they would be furnished with protection against the strikers upon arrival at Denison and until they went on duty or any other time.”. Plainly, we think, the fact that Hooks made no such promise to the witnesses named would have no tendency to prove either that he had no authority to make or that he did not make the promise in question to appellee. The contention that the verdict and judgment were for an excessive amount is overruled. As we view the record, there was testimony the jury had a right to believe which authorized them to find as they did with reference to the amount of the damages. The contention remaining undisposed. of, to wit, that the trial court erred when he admitted as evidence the part of appellant’s answer in the case set out in the statement above, over his objection, has not been considered and will not be determined, because no assignment of error presenting it is in appellant’s brief. Buie 32 for the government of Courts of Civil Appeals; ■ S^by v. Lumber Co., 259 S. W. 1093, The judgment is affirmed.