The error complained of in this case is that the court below took from the jury the question of limited liability of appellant, as provided by the contract which appellant made with the Navy on behalf of co-appellee David S. Hachen.
The facts, briefly, are that Hachen secured a commission from the Navy as Chaplain; that he interviewed the Ferguson Moving Storage Company with reference to packing, transporting, and storing his household goods. The majority of this court take the position, with the trial court, that there is no evidence of a substantial nature indicating that Hachen gave any authority to Ferguson to make the Navy Hachen's agent for the caring of Hachen's furniture. Of course, I admit there was no express authority. If there had been, there would have been no litigation. However, agency can be created without express authority; it can be, and in many instances is, created by implication, and it is in the latter type of cases that law suits arise. The present case is one in point.
My dissenting opinion is based entirely upon the evidence of Hachen himself. His account of his dealings with Ferguson is as follows:
"I gather it probably took place about a week or so before June 11th. I asked Mr. Kuhn if it was possible to place the things in storage. He, of course, said it was, and the question at issue for me was whether I could have the Navy pay for this. I asked Mr. Kuhn could the Navy pay for these things and Mr. Kuhn was very uncertain about this, then I believe we had a subsequent conversation a day or two later, in which he said, `place the things in the warehouse,' and that he would attempt to work out some arrangement with the Navy. That is as much as I can remember."
In the light of this testimony, the trial court took the question of agency from the consideration of the jury. His charge is as follows:
"* * * considering all of the evidence in its most favorable light there has been insufficient proof of the allegation that the United States Navy acted as agent for the plaintiff, especially the plaintiff, David S. Hachen, and, that, therefore, the limitation of the damages as alleged should apply and therefore you *Page 230 may disregard this item of defense and give it no consideration whatsoever and you will proceed to the consideration in this case as if the United States Navy were never mentioned in this law suit."
Hachen wanted the Navy to pay for the storage; he was satisfied to have his goods placed with Ferguson and have Ferguson "attempt to work out some arrangement with the Navy."
In order to get the Navy to pay for the storage, the arrangement would have to be on the basis of limited liability of the Navy. Hachen didn't want to pay the storage; he wanted Ferguson to see if Ferguson could make a deal to have the Navy pay; that was the intention of the parties.
The evidence in this case is clear that the value of the goods determined the cost of storage. In any event, what was understood between the parties as to "some arrangement?" The only arrangement which Ferguson could make with the Navy was one of limited liability — $30 per 100 lbs., or a total amount of liability of $1,020.
The New Century Dictionary defines "arrangement" as follows: "disposition; adjustment; settlement; agreement." In other words, Hachen left it to Ferguson "to work out some (agreement) arrangement" with the Navy. Is this not some testimony, yes, substantial evidence of an implied authority to make a contract with the Navy? If so, then it was a question for the trier of the facts, not the court.
In 3 Corpus Juris Secundum, 322, Section 330, we find this interesting statement of the law: "Where either party presents evidence which, although slight, would justify a finding in his favor, and the evidence on material facts is conflicting, he is entitled to go to the jury, and it is, or would be, error to withdraw the case from the jury by nonsuit, direction of verdict, instructions, or by sustaining a demurrer to the evidence." (Emphasis added.)
In the same section, at page 323, discussing the very point which the trial court had for determination in the instant case, we find this language: "Ordinarily, agency is a question of fact to be determined by the jury. This is true where agency is in issue or dispute, any competent evidence legally tending to prove the existence of the disputed agency has been adduced, *Page 231 and, from the evidence introduced on the question, there may be afair difference of opinion as to the existence of the agency, such as where the evidence is conflicting or even where it isundisputed, if reasonable men may differ in the inferences to be drawn therefrom." (Emphasis added.)
In my opinion, there is substantial evidence in this case, wherein Hachen impliedly authorized Ferguson to make the arrangement which was made with the Navy on Hachen's account, and that the matter should have been left for the determination of the jury.
In my opinion, the judgment of the Court of Common Pleas should be modified, and final judgment rendered in this court in favor of plaintiffs for $1,020, with interest.