{
  "id": 8651137,
  "name": "CHAUNCEY HARRELL v. THE WILMINGTON AND WELDON RAILROAD COMPANY",
  "name_abbreviation": "Harrell v. Wilmington & Weldon Railroad",
  "decision_date": "1890-02",
  "docket_number": "",
  "first_page": "258",
  "last_page": "266",
  "citations": [
    {
      "type": "official",
      "cite": "106 N.C. 258"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T20:21:20.066111+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "CHAUNCEY HARRELL v. THE WILMINGTON AND WELDON RAILROAD COMPANY."
    ],
    "opinions": [
      {
        "text": "Davis, J.:\n\u201cBy consent, the only issue submitted to the jury was whether the cotton in controversy was delivered by plaintiff to defendant company on the 13th day of November, 1888.\u201d\nThe defendant insists that there was no evidence sufficient to go to the jury, upon which the instructions of his Honor, set out in the record, and excepted to, could be based, and the instructions were misleading.\nAs the sole questions presented for our consideration are involved in the single question as to whether there was any evidence to warrant the instruction given, we reproduce only so much of the case on appeal as relates to the charge of his Honor and the evidence relied on by the plaintiff to sustain it.\nChauncey Harrell, the plaintiff, was sworn in his own behalf, and testified that on the 13th day of November, 1888, he carried a bale of cotton to the defendant\u2019s warehouse at Duplin Roads, and went to the office of the Railroad Company and saw in the office one Beall, the agent of the company, and also one Robinson; that witness said, \u201c Good morning,\u201d and, without addressing his remarks to any particular one, said, \u201cI wish to deposit a bale of cotton;\u2019\u2019 whereupon, Robinson went with witness and weighed the cotton, and gave witness a bill of lading therefor; that the office is about six feet by ten in size; that Beall and Robinson were in the office when witness went there; that witness does not know whether Beall heard his remark or not; \u25a0when witness went back to the office, Robinson gave him the bill of lading, of which the following is a copy, to-wit:\n\u201cNovember 13, 1888.\n\u201cReceived of Chauncey Harrell, D. Roads, N. C., one bale of cotton marked, numbered and weighed as below, to be transported at company\u2019s convenience by the Wilmington and Weldon Railroad Company unto C. J. Southerland, of Wilmington.\nNo. Bales Marks Weight\n1 C. H. 500\n(Signed) \u201cB. J. Beall,\n\u201cPer R.\u201d\nBeall and Robinson were in the office; that the next time witness saw the cotton was the 24th of November; it was in the same warehouse, and he ordered it shipped that day, and it was shipped. No new bill of lading was given him that day. \"Witness made complaint to Beall. He (Beall) cursed and abused Robinson, saying it was the third time he had done so that Fall.\nCross-examined, witness testified that the cotton was shipped the 24th of November; that on the 13th, when he called to deposit the cotton, Beall was at the telegraph instrument, but he did not think he was operating; that witness simply went to the door of the office, and after bidding them \u201cgood evening\u201d said he wanted to deposit a bale of cotton for shipment; that he did not demand a bill of lading on the 24th, but had demanded it on the 13th; that Beall was abusing Robinson for carelessness; that witness did not hear Beall say that Robinson had no right to receive freight and give bills of lading, and never heard Beall say so.\nRe-direct \u2014 Robinson and Beall were three or four feet apart at the time witness went to office on the 13th. Robinson had been staying there several months; witness had seen Robinson handling and delivering freight, and witness had heard that he was studying telegraphy there. Witness never saw Robinson give a bill of lading for freight before, but had seen him deliver freight to Malard and to Murphy Brothers. Witness cannot single out any other person to whom Robinson delivered freight. He saw Robinson open warehouse door and assist those parties to get goods out, but does not know whether the agent was there then or not; does not remember whether he saw him there or not. Witness has seen parties go to Robinson and tell him they had freight, and he would show them where to put it on the platform. Witness has seen a party take a coop of chickens to Robinson to ship, but at such time witness does not know whether the agent was present or not; does not know how long this was before shipment of his own cotton \u2014 probably three or four months.\nAt the plaintiff\u2019s request his Honor, in his charge, instructed the jury as follows, to-wit:\n\u201c 1. That, while the agent Beall could not delegate his authority, he could employ a servant; and if the jury believe that said Beall employed Robinson to assist him in his office 'by the payment of money or by teaching him telegraphy for his services, and that it was within the scope of Robinson\u2019s employment to receive freight and give bills of lading, and this was known to defendant company, and they assented to it, and that said Robinson, acting under such employment, received the bale of cotton and gave the bill of lading, the act of Robinson would be the act of Beall,, and the jury should, in such case, answer the issue in the affirmative.\n\u201c 2. That the defendant company may have more than one agent at its several depots; and if the jury believe that Robinson was in the habit of- receiving freight and giving bills of lading, and doing other acts'for said company with its knowledge and acquiescence, and that said Robinson received the bale of cotton of the plaintiff and gave the bill of lading in evidence, the said company would be bound by the acts of said Robinson, and the jury should answer the issue Yes.\n\u201c 3. [Being a modification of plaintiff\u2019s third requested instruction.] If the defendant company knew that Robinson had been receiving freight, although he had not been employed by them, and they had permitted him to do this, and the plaintiff knew this; or, if knowing Robinson had been receiving freight, they so acted on his receipts as to induce the public to believe that he was th\u00e9ir authorized agent, they would be bound by his action, and the jury should answer the issue Yes.\n\u201c 4. [Being a modification of plaintiff\u2019s fourth requested instruction.] That if said Robinson had no authority from Beall or the defendant company to receive the bale of cotton and give the bill'of lading, the said company would still be bound by the acts of Robinson if it ratified them; that said company could not ratify a part of his acts and repudiate a part, but must ratify the whole or repudiate the whole; that the fact that the defendant company shipped the bale of cotton on the bill of lading given by Robinson, and gave no new bill of lading, if the evidence satisfies the jury that the company, and not only Beall, knew it, is evidence from which the jury may infer that said company ratified the act of Robinson, and if the jury should find that the defendant company ratified the act of Robinson, they should answer \u25a0the issue Yes, although they believe that Robinson had, in fact, no authority from Beall or the company.\u201d\nTo these instructions the defendant excepts on the grounds\u2014\n\u201c 1. That there was no evidence that the defendant company had knowledge of, or assented to, or acquiesced in, any of the acts of Robinson in receiving freight and giving bills of lading for the same.\n\u201c 2 That there was no evidence that Robinson had been in the habit of receiving freight and giving bills of lading therefor.\n\u201c 3. That there was no evidence that the defendant company had previously so acted on the receipts of Robinson as to induce the public to believe that Robinson was its authorized agent,\n\u201c 4. That there was no evidence that the defendant company had notice of the shipment of this cotton being made without a new bill of lading, and that without such notice they could not ratify such act. And the defendant insists that in said particulars there was misdirection of the jury in his Honor\u2019s charge.\u201d\nThe defendant requested his Honor to instruct the jury as follows:\n\u201c That in order to recover it was incumbent on the plaintiff to establish by proof that the defendant railroad company knew, or had reason, from observation, information, or otherwise, to believe that Robinson was acting for the railroad company in receiving freight, or that Beall actually knew of the receipt of this cotton, and made the receipt of it his own act. [That there being no evidence of either fact, direct or indirect, it is the duty of the jury to answer the issue No.]\u201d\nHis Honor gave the instruction, except the part here enclosed in brackets, which part he refused to give. Defendant excepts for that \u2014 \u201c First, there was no evidence that the defendant company knew, or had reason from observation, information, or otherwise, that Robinson was so acting for the company; second, that there was no evidence to go .to the jury that Beall actually knew of the receiving of this particular cotton, at the time of its receipt by Robinson, and made the receipt of it his own.\u201d\nThe question for our consideration is not one of preponderance of evidence, but whether there was any evidence reasonably sufficient to go to the jury in the aspects of the case presented by the charge excepted to; for, if there was no evidence which the jury had a right to consider, or only a scintilla of evidence, or if there was no evidence.to which the instructions of his Honor were applicable, then, however correct they may have been as abstract propositions of law, the defendant would be entitled to a new trial. This is too well settled to need citation of authority.\n1. As to the first exception, it is insisted that his Honor, in his charge, assumed that there was evidence from which the jury would be justified in finding \u201c whether Beall had employed Robinson to receive freight and give bills of lading, and this was known to the defendant company and they assented to it, and that said Robinson, acting under such employment, received the bale of cotton,\u201d whereas, as the defendant says, there was no evidence that the company knew of such employment or assented to it.\nWhat is necessary to constitute notice or assent? In Wood\u2019s Railway Law, Yol. I, \u00a7166, it is said: \u201cThe law of agency is especially applicable to business corporations, because all their business must be conducted by agents. Especially is this the case as to railroad companies.\u201d And again, section 168: \u201cIt is well settled that notice to an agent, actual or implied, relative to a matter affecting his agency, and while such agency exists, is notice to the principal, and such is also the 'rule as to a knowledge of facts relating to the business of his agency acquired while acting for his principal,\u201d &c.\nAssuming, therefore, that Beall, by the maxim \u201cDelegatus non potest delegare,\u201d had no authority to employ Robinson as an agent for the r\u00e1ilroad company \u2014 if, in fact, he was acting as such \u2014 notice or knowledge of the fact to Beall was notice to the company \u2014 not only so, but if Beall employed Robinson as a servant to assist him, which we think he had a right to do, then Robinson\u2019s act was Beall\u2019s act, as much so as if performed by Beall himself. As a matter of fact, the receipt was signed \u201c B. J. Beall, per R \u201d\nThe evidence for the plaintiff is to the effect that when he carried the cotton to the defendant\u2019s ware-room, Beall and Robinson were in the office \u2014 a room about six feet by ten in size; that they were three or four feet apart; that, after salutation, he said, \u201cI wish to deposit a bale of cotton,\u201d whereupon Robinson went with him and weighed the cotton, and went back to the office and gave him the receipt, Beall and Robinson being in the office; that Robinson had been there several months; that he had seen him handling and delivering freight; that he had seen a.party take a \u201c coop of chickens\u201d to Robinson to be shipped; that when the cotton was shipped, no \u201cnew bill of lading\u201d was given; that when he complained to Beall, \u201c he (Beall) cursed and abused Robinson, saying it was the third, time he had done so that Fall\u201d; that Beall was \u201cabusing him for carelessness; that he did not hear Beall say that Robinson had no right to receive freight and give bills of lading, and never heard him say so.\u201d Robinson was in the office with Beall when plaintiff said, \u201cI wish to deposit a bale of cotton,\u201d and if, when Robinson, instead of Beall, weighed the cotton and gave the receipt, it was the plaintiff\u2019s duty, before delivering the cotton to him and taking the receipt, to inquire by what authority he was acting, as insisted by the defendant, was it not more clearly the duty of Beall, who knew, or ought to know, what was being done in and about the office, to have acted himself and said, \u201cI am the man to receive your deposit of cotton; I am the agent, and not'Robinson; he has no authority \u201d ? So far from doing anything like this, according to the plaintiff\u2019s testimony, he never repudiated the act of Robinson, though performed in his presence,gave no other bill of lading, and only abused Robinson for \u201c care-lessnessimpliedly admitting that he had some duty about the office. But the defendant says, and it is conceded, that \u201c to constitute a delivery of property to a carrier\u2019s agent, in the proper sense, the thing offered for transportation should come into the hands of the carrier\u2019s agent for receiving freight \u2014 not of any person whom the carrier may employ for other purposes.\u201d Did the plaintiff so deliver the cotton to the defendant\u2019s agent for transportation? The plaintiff carried the cotton, according to his testimony, to one of the regular places for receiving freight the defendant company. Both Beall and Robinson were in the office. He stated his wish without addressing either of them. Robinson went out and weighed the cotton, and went back into the office where Beall was and gave the receipt. Under the circumstances, would any \u201cplain man\u201d have stopped to question the authority of Robinson before taking the receipt?\nThere was evidence.\n2. As to the second exception, defendant says that there was no evidence that the company had \u201cmore than one agent at their depots,\u201d and that there was not the slightest\n\u25a0 evidence that Robinson ever \u201c received any freight or gave any bill of lading,\u201d etc. We think there was some evidence in the facts detailed in plaintiff\u2019s testimony. From the evidence, it appears that Robinson was engaged about the office, acting for defendant company, and Beall himself, abusing him for \u201ccarelessness,\u201d said it was the third time he had \u2022done so during the Fall. The evidence would warrant one going to the Duplin Roads Station, and, under the circumstances detailed by plaintiff, in supposing that Robinson was the agent, as on that occasion, in the presence of Beall, he discharged the duties of agent, and it only appears otherwise from the receipt, which seems to have been given in the office, in the presence of Beall.\n3. The knowledge of Beall, as to Robinson\u2019s acts in and about the office, affected the company with notice, and what has been said in regard to the first and second exceptions applies to the third.\n4. Robinson did nothing that it was not the duty of Beall to do. Beall was present. The cotton was in the defendant\u2019s warehouse and no receipt was given except that given by Robinson, and, without any other receipt, the cotton was shipped, and what has been said in regard to the other exceptions applies to the fourth, and also to that part of the instruction asked by the'defendant and refused by his Honor.\nAffirmed.",
        "type": "majority",
        "author": "Davis, J.:"
      }
    ],
    "attorneys": [
      "Mr. W. R. Allen, for the plaintiff.",
      "Messrs. G. A. Ramsay (by brief) and Geo. Rountree, for the defendant."
    ],
    "corrections": "",
    "head_matter": "CHAUNCEY HARRELL v. THE WILMINGTON AND WELDON RAILROAD COMPANY.\nRailroad, Company \u2014 Non-shipment of Freight \u2014 Action for Penalty \u2014 Agency\u2014Delivery\nIn an action against a railroad company for a penalty, under section 1967 of The Code, it was in evidence that plaintiff carried a bale of cotton to defendant\u2019s warehouse and \u2019found the agent and one R. in the office; that he said he wished to deposit a bale of cotton; whereupon R. went with him, weighed the cotton and gave him a bill of lading in the agent\u2019s presence, with the agent\u2019s signature \u201cper R.\u201d It was also in evidence that R. had been in the agent\u2019s office several months; that he had delivered freight; that eleven days thereafter plaintiff found that the cotton had not been shipped, and heard the agent abuse R. for carelessness: Held, that there was sufficient evidence to warrant the jury in finding a verdict for the plaintiff, upon an issue as to whether the cotton had been delivered to tne defendant.\nThis was a civil action to recover a penalty under section 1967 of The Code, begun before a Justice of the Peace and tried, on appeal, before Bynum, J., at November Term, 1889, of DupliN Superior Court. '\nThere was judgment for the plaintiff, and the defendant appealed.\nThe facts are stated in the opinion'.\nMr. W. R. Allen, for the plaintiff.\nMessrs. G. A. Ramsay (by brief) and Geo. Rountree, for the defendant."
  },
  "file_name": "0258-01",
  "first_page_order": 284,
  "last_page_order": 292
}