Western Union Telegraph Co. v. Satterfield

Phillips, J. Action of trespass brought by appellee against appellant, for cutting timber. A trial by jury was had, and a verdict and judgment for $100. There is no controversy as to the fact of the injury, and the amount of damage. The question presented is, whether the cutting was by the agent of the company, or under his direction, and whether, if so done, the agent was acting within the line of his employment. Corporations can act only by agents, and where a person acts openly and publicly as the agent of a corporation, we must presume authority in persons who are permitted to so act for them. R., R. I. & St. L. R. R. Co. v. Wilcox, 66 Ill. 417. The evidence shows that the poles that sustain the wires of the telegraph company stand on the right of way of the Louisville & Nashville Railroad Company, and about twenty-five feet from the center of the track. Adjoining the right of way, and near the line of the telegraph company’s wires, the trees, the cutting of which is the subject-matter of this suit, were standing. T. E. Robson, the road master, testifies that “Mr. Karberry was line repairer for appellant; have seen him repairing wires and putting up poles; he was often doing such repairs. The duty of the line repairer is to examine lines and wires, see that the lines are not obstructed, remove trees or anything dangerous.” M. F. Jolly testifies that he “was section foreman of the section along which the cutting was done. The chopping was done under the direction and control of Mr. Karberry, who was in the employ of the telegraph company, and was present and pointed out the trees to be cut, and no cutting was done except of trees thus pointed out.” Under the direction of Karberry, trees twenty-five feet or more south of the right of way were cut. "Witness was directed by the assistant road master to report with his men to Karberry, and cut such trees as might be pointed out. That Karberry was the line repairer for appellant, and his duties were such as stated by Robson, is not controverted, nor is the fact that he directed the cutting of the trees. Being so in the employ of the company, it was his duty to remove trees or anything dangerous to the line. The determination of what might be dangerous was thus left to him. If, in determining that particular trees were dangerous, or might be so, he was mistaken in the exercise of a discretion left to him, it is still his act, in the discharge of the work of removing trees or anything dangerous to the line, as determined by him. If, in determining what might be dangerous to the lines of the company, he believed the trees on appellee’s land were so, and to remove them committed a trespass, that trespass was committed by the agent of the company, in the discharge of his duties to the company, as he determined those duties, which were by the company left to him to determine. It was therefore in the line of his employment. Cooley on Torts, 538; C., St. P. & F. R. R. Co. v. McCarthy, 20 Ill. 385; P. & R. R. R. Co. v. Derby, 14 How. 468; Rounds v. Del., etc., R. R. Co., 64 N. Y. 129; Howe v. Newmarch, 12 Allen, 49. We therefore hold the appellant was guilty of the trespass charged. We find no error in the giving or refusing instructions, and the judgment is affirmed. Judgment affirmed.