Pennsylvania Railroad v. Flanigan

Mr. Justice Green

delivered the opinion of the court, May 24th, 1886.

After a most careful reading of all the testimony in this case we are obliged to say there is no evidence whatever of an express contract for the payment of wages or salary by the defendant to the plaintiff. The plaintiff himself being examined at great length does not state that the defendant, or any of its officers ever agreed to pay.him any stipulated compensation for the service he rendered. It was undoubtedly true that he did sell tickets 'for the defendant, and was duly appointed passenger agent at Wilkesbarre by authority of the company. It is also true that he performed the service to which he was appointed, and it is not questioned that his performance was entirely faithful throughout. If there were nothing else in the case he would be entitled to compensation adequate to the service rendered upon the principle of a quantum meruit. But there are other material facts in evidence. During all the time of the service for which the pi’esent claim is made the plaintiff was in the employment of the Lehigh Valley Railroad Company as ticket agent at Wilkesbarre station. For that service he was paid a fixed monthly compensation, with privilege to sell tickets upon commission for certain western railroad companies. Being thus engaged, the Lehigh Valley Railroad Company, b.y contract with the Pennsylvania Railroad Company, agreed that the latter company might use the terminal facilities of the former at Wilkesbarre, including the passenger and freight stations, for the purposes of the North and West Branch Railroad Company, extending from South Wilkesbarre to Catawissa. This last named company was in the control of the Pennsylvania Railroad Company, and the terms of the arrangement with the Lehigh Valley Company included the sale of tickets over the North and West Branch and to points beyond, and the arrival and departure of passengers, and the landing and shipment of freight from the Wilkesbarre station of the Lehigh Valley Oompanys In consideration of these privileges the Pennsylvania Railroad Company agreed to pay the Lehigh Valley Company five cents for every passenger coming into or going out of the station, and a sum per ton for all freight handled. All the service was performed by the agents of the Lehigh Valley Company for the Pennsjdvania Company. It was therefore undoubtedly the fact that compensation for the service was to be paid by the Pennsylvania Company to the Lehigh Valley Company. The Lehigh Valley Company directed their passenger agent, the plaintiff, to sell tickets for the Pennsylvania Company, and he did so. For selling tickets for the latter *564 company compensation is claimed, which, being refused, the present action is brought to recover it. There being no proof of an express contract to pay a 'specific compensation, the case was tried upon the theory of a quantum meruit, and evidence was given of the value of the service. The court left the case to the jury upon some testimony of the plaintiff that an agent of the defendant had promised him he should be paid for his service. Can a recovery be had in such circumstances?

There is no doubt that the Pennsylvania Company did appoint the plaintiff as their agent to sell tickets for them at this station, and that in pursuance of that appointment he acted for them and gave the usual bond given by passenger ticket-agents. It must also be conceded that the Lehigh Valley Company knew of this agency and assented to it, in fact directed the plaintiff to perform the service, Thus far the facts are without controversy, and if these facts alone constituted a right of recovery the verdict and judgment should stand.

But it is denied by the defendant that these facts alone confer a right to recover; the denial is based upon an allegation that the defendant contracted with the Lehigh Valley Company for the service of the plaintiff and paid that company for the service, that they never agreed with the plaintiff to pay him any compensation, that the Lehigh Valley Company never consented to the payment of compensation b]'’ the defendant to the plaintiff, and that it is against the policy of the law to allow the servant of one master to recover compensation for service rendered during the continuance of his employment, to another master.

The proof that the service in question was contracted for between the two companies is direct, positive, clear and entirely uncontradieted, and the compensation for the service was to be paid by the Pennsylvania Company to the Lehigh Valley Company, There is not a particle of evidence proving or tending to prove that the Lehigh Valley Company agreed that their agent, the plaintiff, should or might receive compensation for the service in question from the defendant, or that they had any knowledge that such compensation was to be paid. The only evidence tending to show that the defend"ant agreed to pay compensation to the plaintiff is found in the testimony of the plaintiff. Alfred Walter was the superintendent of the North and West-Branch Company. The plaintiff testified to a conversation with him and was asked, “ What was said? A. Mr. Walter promised on several occasions to pay me a salary. Q. Mr. Walter on several occasions promised to pay you ,a .salary ? A. Yes, sir. Q. When did you meet him again after this timé, about the first of December? A. I saw *565 Mr. Walter probably on an average of once a month. Q. Covering what period ? A. From the first of December, 1882, up to — well I seen him all the time during the time I was in their service: in regard to paying my salary, the last time I talked with him in regard to that was probably in April or May, 1884. Q. What did he say at these conversations? A. He had always held out to me that I would be paid a salary for the services performed.”

With the exception of a repetition of the last answer on cross-examination, the foregoing is the whole and the only evidence of a contract by the defendant company to pay compensation to the plaintiff for his services. It will be seen at once that this is but the expression of a conclusion or opinion of the witness as to the effect of the words used in the conversation stated. The words themselves are not given nor the substance of them. Whether they amounted to a “promise ” would be for the jury to judge if they only knew what they were, but the plaintiff did not give them. So when he said that Mr. Walter “held out” to him that he would be paid he states nothing more than a conclusion of his own. The jury could not tell whether Mr. Walter really “ held out” such an idea because they did not know the words he used.

This kind of evidence is altogether insufficient to prove an express promise to pay by the defendant. The circumstances and relations of the parties were such that nothing but distinct and clear words of an agreement or contract to pay can suffice to create such an obligation. No doubt if there was distinct proof of an actual promise to pay by the defendant, and satisfactory proof of the consent of the Lehigh Valley Company that their agent should receive such pay, the defendant would be legally bound to pay. But in our opinion nothing short of this will suffice.

The plaintiff being in the constant employment of the Lehigh Valley Company, and paid by them for his entire service, could not lawfully contract to render service during the same time to another company, especially a competing company as this one was, for compensation, without clear proof of the knowledge and consent of the Lehigh Valley Company both to the employment by the defendant and the payment of compensation. In Everhart v. Searle, 21 P. F. S., 256, we said, Thompson, C. J.: “The case before us is rather novel. It involves a question whether the same person may be an agent in a private transaction for both parties without the consent of both, so as to entitle him to compensation from both or either. We have the authority of Holy Writ for saying that ‘no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one *566 and despise the other.’ All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principle in every system of enlightened jurisprudence’.”

In the same opinion it was further said: “ There was plausibility and seeming force in the argument that as Flagg, the plaintiff’s principal in the sale, was not injured by the arrangement with the defendant, there was nothing wrong in making that arrangement. This is specious, but not sound. The transaction is to be regarded as against the policy of the law, and not binding upon a party who has a right to object to it.” This was said of one who had been appointed agent of one person to sell, and of another person to buy, the same property. He had made a positive agreement with the purchaser for an expressed consideration for making the purchase, but it was held he could not recover even upon his undoubted and absolute contract, because he was also the agent of the seller, under promise of compensation to sell the same property. The contract for payment of compensation by the purchaser was declared void as against the policy of the law. In Story on Agency, § 211, it is said: “Indeed it may be laid down as a general principle that in all cases where a person is either aetualty or constructively an agent for other persons all profits and advantages made by him in the business beyond his ordinary compensation are for the benefit of his employers.” These principles are perfectly familiar, and are illustrated by a vast number of reported cases applied to many different relations of life. It seems very clear to us that they are entirely applicable to the present case. The plaintiff by his own testimony proved that he could sell tickets to competitive and distant points by either company’s road. He was therefore subject to a divergent duty of fidelity to both if employed b3’- both. Whether he would be more faithful to the interests of one than of the other might depend upon a secret disproportion of compensation received from one as against the other. But it is enough to know that absolute fidelity to one was inconsistent with the same fidelity to the other. In such a situation nothing less thau clear proof of the consent of both employers, not merely to the double service, but to the double compensation, would suffice to validate an express contract with the second employer; much more would it be requisite to support an implied contract. As there was not the slightest evidence of the consent of the Lehigh Valley Company to their own paid servant becoming the paid servant of the defendant, the plaintiff’s claim for compensation from the latter is fatally defective.

Judgment reversed.