Texas N. O. R. Co. v. Peterson

WALKER, J.

This suit was instituted by appellee against appellant on allegations that he had been employed as crossing flagman at 42% cents per hour, and that appellant had attempted to settle with him at a less sum. The suit was to recover the difference. On a trial to the jury the evidence was sufficient to sustain their finding in appellee’s favor.

The only question necessary for us to review arises on the admission of the contents of a letter, purporting to have been written by appellant fixing appellee’s wages at 42% cents per hour, offered by appellee.

H, N. Free, appellant’s section foreman, testified for appellee as follows:

“My name is H. N. Free. I am section foreman for the T. & N. O. Railroad Company at Orange, Tex. Mr. Peterson and Mr. Garrison and several more men were sent out to me by Mayor Lea of Orange to be put on as crossing flagmen. I had instructions from Mr. Mieksch to put on' men sent out by Mr. Lea. I did not know what the wages to be paid them was, and so toldl them. They went to work as flagmen, and I wrote in to Houston to find out what the wages for this work would be. I got a memorandum stating that those wages would be 42% cents per hour. I did not remember who it was signed by but think it came from the general office. I further told these men who were employed as crossing flagmen, after receiving this memorandum, which I thought was from the general office, that the rate of pay would be 42% cents per hour. This memorandum was received by me 10 or 11 days after these men started to work.

“I am section foreman and have charge of section men. I have no authority whatever to hire or fire crossing flagmen, and to say what scale of wages shall be.”

It appeared that the “memorandum” referred to by this witness was lost. Appellant’s objection was to the effect that it did not appear that this memorandum was written by one of its agents with authority to fix appellee’s wages.

Agency, as any other fact, can be proved by circumstances. In this case, it appears from the section foreman’s evidence that he wrote to appellant’s general office, inquiring as to what appellee’s wages would be, and that some one in the office answered this letter fixing the wages at 42% cents per hour. It further appears that this section foreman reported appellee’s time at 42% cents per hour from time to time as the wages accrued, and that no one in the general office ever wrote him that a mistake had been made. It also appears that appellee’s last pay check was on the basis of 42% cents per hour. With this letter from the section foreman on file in its general office, appellant permitted appellee to remain in its employ several months, without notifying him that the memorandum was written by one without authority. Dliring all this time the section foreman who employed appellee and its road master requested him to cash the pay checks received by him, though ’for a less sum than that claimed, and that the mistake would be adjusted. We think these circumstances were sufficient to make this memorandum admissible.

The judgment of the trial court is affirmed.