Cannel Coal Co. v. Luna

FLY, J. This is a suit by appellee against appellant to recover damages arising from personal injuries alleged to have'been inflicted through the negligence of appellant in a coal mine in Webb county. The only allega [722] tion to fix venue was tliat appellant “is a private corporation, duly incorporated, and that W. C. Silliman, a resident of Bexar county, Tex., is its agent and representative.” Appellant interposed a plea of privilege to be sued in Webb county, where it resided and had its domicile, and denying that any of the exceptions mentioned in articles 1194 and 1585, Revised Statutes of Texas, existed in connection with it. The cause was tried on the plea of privilege and on the merits at the same time, and the jury found against appellant on its plea and returned a verdict in favor of appellee for $12,000, and upon that verdict the judgment was rendered from which this appeal has been perfected. As a preliminary to the consideration and discussion of the facts adduced for and against the plea of privilege interposed by appellant to be sued in Webb county, the place of its domicile, we will state some general rules as to the appointment of agents by private corporations and the evidence required to establish such agency. [1] First, it may be stated that under the modern doctrine, both in England and America, it is the rule that, in the absence of special requirements in the charter or in the laws of the state, a corporation may confer authority on an agent for the performance of any act or duty, within the limit of its corporate powers, by writing or by parol, just as an individual would, and, as in the case of the latter, agency may be implied from acquiescence or from ratification or recognition of the acts performed by the agent Mechem, Agency, § 97. [2] Another rule is that the authority Of an agent must be traced back to some word or act of the party sought to be shown to be the principal, from whom alone authority to act can be obtained. It follows that evidence of the statements or admissions of the alleged agent is not admissible to establish his authority, and such evidence can never be used against the principal until the fact of agency has been established by other evidence. [3] An agent, however, may testify as to the extent and nature of his authority, where such authority is based upon parol and not written evidence, just as could any other witness. [4] It is the rule that when a person has held out another as his agent in a certain capacity, or has knowingly permitted him to act as his agent, or where the circumstances are such as to raise the presumption of agency, the authority of the agent to act will be presumed in so far as the rights of third persons may be concerned. This rule is based upon the doctrine of estoppel, which cannot possibly have any application to the facts of this case. Reverting to the rule that the acts, admissions, and declarations of one acting as an. agent cannot be used as evidence of agency until the authority to act has been in some way established, and considering all the evidence of agency in this case outside of the acts and admissions of W. O. Silliman, who it is claimed was the agent of appellant, we find that the only evidence tending to connect appellant and Silliman as principal and agent was the admission of the auditor of' the corporation, made to an attorney for appellee, a short time before the suit was instituted, and the fact that the general manager saw Silliman’s sign in San Antonio. The conversation between T. O. Mañn,' the-attorney, and Biggio, the auditor, was stated to have been through the medium of a telephone and was brought about with the admitted design of obtaining evidence upon which to maintain a suit in Bexar county against a corporation doing business in Webb county. In that conversation, which the auditor swore positively never occurred, the attorney testified: “I asked him if they had a representative or agent in Bexar county who’ could make binding contracts, representing the Cannel Coal Company. He said they did. I asked him who it was. He said Mr. Silli-man.” That is the only proof adduced outside of Silliman’s sign in San Antonio, his letter heads, and an entry in the city directory, that could in any way tend to establish the relation of principal and agent between appellant and Silliman. That evidence was totally inadequate for that purpose. [5] A corporation is not bound by the declarations or admissions of its individual directors, officers, or agents outside the scope of their agency or authority, nor when not made in connection with the performance of their duties. In order, therefore, to bind a corporation by the declarations or admissions of an agent, it must not only appear that he was acting within the scope of his authority, but that they were made in the prosecution of, or in connection with, the performance óf his duties. Speaking on this subject, it was said by the Supreme Court of Minnesota in Browning v. Hinkle, 48 Minn. 544, 51 N. W. 605, 31 Am. St. Rep. 691: “The mere fact that one is a director, president, secretary, or other officer of a corporation does not make all his acts or declarations, even though relating to the affairs of the corporation, binding upon the latter. Such persons are mere agents, and their declarations are binding upon the corporation only when made in the course of the performance of their duties as agents, so that the declarations constitute a part of their conduct as agents, a part of the res gestae.” . In Cook on Corporations, § 726, it is stated: “The board of directors acting as a board may bind the company by admissions and declarations, but a single director cannot do so except as a special agent of the company. Neither do the admissions or declarations of the president bind the company unless he has extra powers given to him, nor ordinarily those of the secretary and treasurer, nor those of a cashier, except as [723] to matters in the ordinary course of their duties.” The text is well supported by authorities cited in the footnotes. In the case of Blain v. Express Co., 69 Tex. 74, 6 S. W. 679, it was shown that Fuller, the superintendent of the Express Company, had admitted the liability of the company for a reward offered for the arrest of an employé who had embezzled the funds of the company, and the court held, in affirming a judgment against the claimants of the reward: “The fact that Fuller was shown to be the superintendent of the Express Company was not sufficient to show that he had the authority to bind the company by his admissions, declarations, or agreement set up in the supplemental petition.” [6, 7] There was no evidence tending to show the authority of Biggio to act for the appellant, or to bind it by his declarations. Mr. Mann did not swear even that Biggio was an officer of the company, but merely stated, “I understood that Mr. Biggio was an officer of the company.” Wager, the general manager of the company, testified that Biggio was a director, and also that he (Wager) had the sole and exclusive authority to sell coal for the company, and that no one else was authorized to appoint agents to sell coal for the company. Biggio did not testify on 'the issues presented by the plea of privilege, but on the trial of the cause testified that he was the auditor of the company, and that he had no authority to appoint agents, and that Mr. Wager, the general manager, alone had the authority to appoint agents. Both Wager and Biggio swore that the company had no agents outside of Laredo, and that W. C. Silliman of San Antonio was not an agent of the company. The fact that Wager, the general manager, saw a sign at the place of business of Silli-man did not tend to show the latter’s agency. The entire testimony tended to show that the sign was, “Sole agent Cannel Coal,” and not of the “Cannel Coal Company,” and, as pertinently explained by the general manager, the sign meant simply that Silliman had the sole right to sell cannel coal in San Antonio. He stated, in answer to a question as to what the sign meant: “Means just like you see a sign, ‘Clapp Bros. Shoes.’ Xou see a sign, ‘Dunlap Hats, Sole Agents^’ or, ‘Sole Agents E. & W. Collars,’ and all like that; they are not agents of the company.” The publication of the name “Cannel Coal Company (W. C. Silliman)” in the city directory of San Antonio was not shown to have been authorized by appellant (or even by Silliman); but, on the other hand, the un-contradicted testimony showed that it was not authorized either by appellant or Silli-man. It had nó probative force whatever as to Silliman’s agency. Silliman’s letter heads did not tend to prove agency. They merely recited that he was “Sole agent for Cannel Coal,” which did not connect him with the Cannel Coal Company. Cannel coal is a distinct kind of coal as contradistinguished from anthracite, lignite, or other kinds of coal. Silliman’s signs and stationery or his declarations were not competent to establish agency, in the absence of any evidence tending to show that the company had made him its agent. When Biggio made the declaration testified to by Mann, he was not in the exercise of any duty imposed upon him as auditor or secretary of the company. It was merely a gratuitous statement made by him about a matter over which he had no authority and of which he was not cognizant. There was no testimony tending to show that the records of the company kept by Biggio showed that Silliman was its agent, but it appeared' from the uncontroverted evidence that coal was sent to Silliman by appellant only on his orders, that he paid for it, and at no time rendered any account of what he obtained for the coal. Silliman swore: “I bought it; paid the price on the coal, and put my price on the coal I sold. The Cannel Coal Company had nothing, whatever, to do with it. After I bought it, it was mine.” The evidence totally failed to show that Silliman was the agent of appellant, and the verdict of the jury on that point cannot be sustained. [8] A corporation, like an individual, has the right and privilege secured to it by the laws of Texas to be sued in the, county of its domicile, unless it is alleged and proved by the plaintiff that it has an agency or representative in the county in which the suit was instituted, other than the place in which its domicile is situated. The right to sue in another than the county of domicile is for the benefit of the plaintiff, and he must present the facts necessary to show that his case comes within the countenance and support of the exceptions to the general rule that no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile. “To entitle a plaintiff to sue in a county other than the residence of the defendant, he must bring his case clearly within one of the exceptions of the statute.” Cohen v. Munson, 59 Tex. 236; Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125. As said in Hilliard v. Wilson, 76 Tex. 180, 13 S. W. 25: “The right to maintain a suit in a county other than that in which the statute fixes the venue must depend upon the existence of the fact or facts which constitute an exception to the statute, and not upon the mere averment of such fact or facts. Where jurisdiction of the person of a defendant is claimed under some exception to the general statute of venue, and he pleads the privilege of being sued in the county of his domicile, as provided by that statute, to defeat his plea and deprive him of that right, we think the facts relied on should be not only alleged but proved.” The judgment of the lower court will he [724] reversed, and It is the order of this court that the venue of this case be changed to Webb county, and the district clerk is hereby ordered to make up a transcript of all orders made in said cause, and certify officially to the same under the seal of the district court of Besar county, and transmit the same with the original papers in the cause and the mandate of this court to the clerk of the district court of Webb county, Tex.