Pittsburgh Fort Wayne & Chicago R. R. Co. v. Hazen. PITTSBURGH, FORT WAYNE & CHICAGO R. R. Co. v. HAZEN. (84 III. 36.) Common carrier — Excuse for delay in carriage — Interference by strikers. A common carrier is excused for delay in the carriage of goods where the delay is caused solely by the violent and irresistible interference of strikers recently discharged from the carrier's employment. Semble that for a delay resulting from the refusal of the employees of a car. rier to do duty the carrier is liable. A CTION for damages. The opinion states the facts. F. H. Winston, George Willard and B. C. Cook, for appellants. T. A. Moran, for appellee. DICKEY, J. On the 10th of December, 1870, Hazen shipped, by the freight line of the railway company, a quantity of cheese from Chicago to New York. The cheese was delivered to the consignees, at New York, on the 28th of December-eighteen days after the shipment. The proofs tended to show that the usual period of such transit, at that time, did not exceed twelve days; that the weather from the 10th to the 23d was not severely cold, but that severe cold occurred between the 23d and 28th, and that the cheese, when delivered in New York, was frozen, and thereby damaged to the amount of $1,100.55, and for this amount was the verdict and judgment in favor of Hazen, from which the railway company appeals. As an excuse for this delay beyond the usual period of such transit, the defendant, at the trial below, sought to prove that the sole cause of the delay was the obstruction of the passage of trains in the neighborhood of Leavitsburg, resulting from the irresistible violence of a large number of lawless men, acting in combination with brakemen, who, up to that time, had been employed by the railway company; that the brakemen refused to work, and were discharged, and other brakemen promptly employed, but the moving of trains was prevented by the threats and violence of a mob. This evidence was objected to by the plaintiff, and excluded by the court. Pittsburgh, Fort Wayne & Chicago R. R. Co. v. Hazen. This, we think, was error. It is, doubtless, the law, that railway companies cannot claim immunity from damages for injuries resulting in such cases from the misconduct of their employees, whether such misconduct be willful or merely negligent. If employees of a common carrier suddenly refuse to work, and the carrier cannot promptly supply their places with other employees, and injury results from the delay, the carrier is responsible; such delay results from the fault of the employees. The evidence offered in this case, however, tends to prove that the delay was not the result of a want of suitable employees to conduct the trains, for the places of the "strikers" were, according to the proof offered, promptly supplied by others. The proof offered tends to show that the delay was caused by the lawless and irresistible violence of the discharged brakemen, and others acting in combination with them. These men, at the time of this lawlessness, were no longer the employees of the company. The case supposed is not distinguishable in principle from the assault of a mob of strangers. All the testimony on this subject should have been submitted to the jury, for their determination of the question whether, under all the circumstances, the period of transit was unnecessarily long. For the delay resulting from the refusal of the employees of the company to do duty, the company is undoubtedly responsible. For delay resulting solely from the lawless violence of men not in the employment of the company, the company is not responsible, even though the men whose violence caused the delay had, but a short time before, been employed by the company. Where employees suddenly refuse to work, and are discharged, and delay results from the failure of the carrier to supply promptly their places, such delay is attributable to the misconduct of the employees in refusing to do their duty, and this misconduct in such cases is justly considered the proximate cause of the delay; but when the places of the recusant employees are promptly supplied by other competent men, and the "strikers" then prevent the new employees from doing duty by lawless and irresistible violence, the delay resulting solely from this cause is not attributable to the misconduct of employees, but arises from the misconduct of persons for whose acts the carrier is in no manner responsible. The judgment is, therefore, reversed, and the cause remanded for a new trial. Judgment reversed. WALKER, CRAIG and SCHOLFIELD, JJ., dissenting. Murphy v. Ottenheimer. MURPHY V. OTTENHEIMER. (84 Ill. 39.) Liability of father to persons selling goods to his minor son. When a father has permitted his minor son to buy goods on his credit, a party knowing that fact, and without notice of any change of relation, or circumstances to put him on inquiry, may recover against the father for goods soid to the son, although the son has left his father. A CTION for goods sold and delivered. The facts are stated in the opinion. Johnson & Hewett, for appellant. Bibb & Lambert, for appellees. WALKER, J. Appellees seek to recover for a bill of goods sold by them to the son of appellant, in the summer of 1874. The goods were charged to appellant. When the bill was presented the father declined to pay for the goods, on the ground that they had been purchased without authority and against his will. On the trial in the court below, plaintiffs recovered a verdict for $69.55. The court, after overruling a motion for a new trial, rendered a judgment on the verdict, and defendant appeals and asks a reversal. It appeared on the trial that appellees had been, prior to 1873, the tenants of appellant, and he had purchased goods of them during the time, and the bills for the same had been deducted from the rent, on settlement. One or two bills were settled by appellant's business agent. Appellees claim, that during this time, and they so testified, appellant's son was in the habit of purchasing goods of appellees, and they were charged in these bills, and were paid for by appellant without objection. On the other hand, appellant testifies that his wife or himself made the purchases, and he denied all knowledge that his son ever purchased goods of appellees that were charged to him, before making this bill. It is conceded that appellant at no time ever notified appellees not to furnish or sell Murphy v. Ottenheimer. goods to his son on his credit. Appellant also swears that he directed another person to furnish his son with clothing, but there is no evidence the fact came to the knowledge of appellees. Appellant also testified that his son left home about the 4th of July of that year, when but a few articles of small value had been purchased. But appellees swear that they were not notified of, nor did they know of the fact, and they also deny all knowledge of appellant's absence from home when the greater portion of the goods were purchased. It is insisted, on these facts, that the jury were not warranted in finding that the boy had authority to purchase on his father's credit. It was held, in the case of Hunt v. Thompson, 3 Scam. 179, that there must be an express promise, or circumstances from which a promise, by the father, can be inferred, to hold him liable for necessaries furnished his infant child by a third person. It is there said that such a promise is indispensably necessary. If the promise is express, there can be no difficulty in holding the father liable; but where the promise is to be inferred from circumstances, it is frequently a matter of no small difficulty to determine whether such liability exists. Where the father permits his minor child to purchase goods on his account, whether for himself or for the father, and he pays for them without objection, it is a reasonable presumption that the minor had authority, and was the agent of the father, having full power to make such purchases. The proof of such authority is the same as the agency of the wife or a servant. The circumstances which authorize the inference of authority in the one case will be sufficient in either of the others, in each the question being, whether there was authority to act as agent. When the agency is found to exist, the law then implies a promise, as in the case of any other agency. These are the rules that govern this character of transactions. The principal question, then, is, whether the circumstances shown in evidence warranted the jury in finding the verdict. If appellees' testimony were taken alone, there would seem to be no doubt that the boy had purchased goods of them for several years and had them charged to his father, and that he, without objection, paid for them. This they swear, without qualification; and two or three items, of small value, are specified. The clerk corroborates them in this statement. But appellant denies that such VOL. XXV.-54 Murphy v. Ottenheimer. was the fact. In this conflict it was for the jury to reconcile the evidence, if that could be done, and if not, to determine to whom the credit of truth should be given. They saw the witnesses on the stand and observed their demeanor, intelligence, fairness and other circumstances, which are not before us, and their finding should not be lightly disturbed. We are not able to say they erred in giving weight to the evidence of appellees rather than to that of appellant. If they believed the evidence of the former and not of the latter, then they could not avoid the conclusion that the son was held out to appellees as an authorized agent of the father to make the purchase on the father's account, as he had been previously in the habit of doing. But it is urged that the son had left home against the will of the father, and that appellees should have known the fact. They testify that they did not know of it, nor had they heard of it. It seems that most of these articles were purchased while the father was in Minnesota, and, we presume, when he was not keeping house, so that the son could live with him, in fact. While thus absent no one's attention would be attracted by the fact that the son did not board or lodge at his father's house, if such was the fact. It was, at an early day, held, and it is believed to be the correct doctrine, that an agent in the employment of a person to perform certain duties for the principal can bind the latter within the line of his duty, even after his power has ceased, if done within a short period afterward, and without knowledge that he had ceased to be the agent. Paley on Agency, p. 42, lays down the rule, that "the implied authority arising from employment continues after the agency has ceased, unless the parties giving credit to it either may be supposed to have had notice of the change, or from length of time or other circumstances, ought not to have inferred that it continued." Parsons on Contracts, vol. 1, p. 258, says that a father may emancipate his minor son and thus lose the right to claim the son's earnings, "and a stranger, not knowing of this arrangement, might still interpose it to defeat the father's claim for the son's earnings; but if a stranger supplied a son at a distance from his home, with suitable necessaries, in ignorance of such an arrangement, there is no sufficient reason for holding that it would bar his claim against the father." This authority goes further than we would be willing to sanction; but it, with Paley on Agency, shows that |
