March 25, 1921. *Page 518

The opinion of the Court was delivered by This was an action by plaintiff against defendants for loss of suit case, the defendant Wise defaulted, and the City Transfer and Baggage Company answered and contested. The case was heard by Hon. M.S. Whaley, County Judge, and a jury, and a verdict rendered in favor of the plaintiff. Wise did not appear and testify. The issue raised by the other defendant was that Wise was not their agent, and that Wise took the notice of call from their desk without their knowledge, and answered the call without their knowledge or authority. After entry of judgment defendant appeals and takes four exceptions, but on the hearing of the case abandoned the fourth exception. All three of the exceptions complain of error in the Judge's charge. No motion was made in the trial below for nonsuit or directed verdict, so the only question to be determined was whether or not the Judge erred in his charge.

The first and second exceptions are overruled. His Honor committed no error in charging the law of agency, and explaining how the relationship of principal and agent may be created; the evidence and issues made in the case made it necessary that his Honor should elucidate this. The complaint alleged such facts that the inference could be drawn that Wise was the agent of the appellant, and from the evidence offered at trial that inference could be inferred and the real question in the case was, Was Wise the agent of appellant for the purpose of transporting the plaintiff to the depot? and not whether Wise was the general agent of the appellant, or how he was appointed.

If his Honor committed an error in misstating the issues raised by the pleadings to the jury it was the duty of attorneys to call his attention to such error. We see no merit in any of the exceptions as made. Under the *Page 519 undisputed facts of the case the plaintiff was clearly entitled to a verdict, and the appellants got a trial that was free from error on the part of the trial Judge. All exceptions are overruled, and judgment affirmed.

MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER, concur.

Mr. JUSTICE COTHRAN: I concur in the result upon this ground: The complaint was plainly demurrable; it did not allege that the defendant received the baggage for transfer; it did not allege that the defendant, Wise, who actually received it, was the agent of the transfer company; it did not allege that the transfer company by its negligence permitted Wise to represent himself as the agent of the transfer company; it simply alleged that the transfer company had agreed to transfer the baggage, and that Wise had called for it, representing himself as the agent of the transfer company, and that in the movement Wise had lost the baggage.

The defendant not having demurred to the complaint, not having made a motion to require the complaint to be made more definite, and not having objected to testimony along both lines (that Wise was the agent of the transfer company, and that the latter was negligent in allowing him to represent himself as their agent,) is not in a position now to object to the testimony or charge of the Court upon either theory. Both of these issues were fairly presented to the jury in the Circuit Judge's charge, without objection on the part of the defendant, and with the finding of the jury we are not concerned. *Page 520

*518The opinion of the Court was delivered by

This' was an action by plaintiff against defendants for loss of suit case, the defendant Wise defaulted, and the City Transfer and Baggage Company answered and contested. The case was heard by Hon. M. S. Whaley, County Judge, and a jury, and a verdict rendered in favor of the plaintiff. Wise did not appear and testify. The issue raised by the other defendant was that Wise was not their agent, and that Wise took the notice of call from their desk without their knowledge, and answered the call without their knowledge or authority. After entry of judgment defendant appeals and ta^es four, exceptions, but on the hearing of the case abandoned the fourth exception. All three of the exceptions complain of error in the Judge’s charge. No motion was made in the trial below for non-suit or directed verdict, so the only-question to be determined was whether or not the Judge erred in his charge.

1 The first and second exceptions are overruled. His Honor committed no error in charging the law of agency, and explaining how the relationship of principal and agent may be created; the evidence and issues made in the case made it necessary that his Honor should elucidate this. The complaint alleged such facts that the inference could be drawn that Wise was the agent of the appellant, and from the evidence offered at trial that inference could be inferred and the real question in the case was, Was Wise the agent of appellant for the purpose of transporting the plaintiff to the depot ? and not whether Wise was the general agent of the appellant, or how he was appointed.

2 If his Honor committed an error in misstating the issues raised by the pleadings to the jury it was the duty of attorneys to call his attention to such error. We see no merit in any of the exceptions as made. Under the *519undisputed facts of the case the plaintiff was clearly entitled to a verdict, and the appellants got a, trial that was free from error on the part of the trial Judge. All exceptions are overruled, and judgment affirmed.

I concur in the result upon this ground: The complaint was plainly demurrable; it did not allege that the defendant received the baggage for transfer; it did not allege that the defendant, Wise, who actually received it, was the agent of the transfer company; it did not allege that the transfer company by its negligence permitted Wise to represent himself as the agent of the transfer company; it simply alleged that the transfer company had agreed to transfer the baggage, and that Wise had called for it, representing himself as the agent of the transfer company, and that in the movement Wise had lost the baggage:

The defendant not having demurred to the complaint, not having made a motion to require the complaint to be made more definite, and not having objected to testimony along both lines (that Wise was the agent of the transfer company, and that the latter was negligent in allowing him to represent himself as their agent,) is not in a position now to object to the testimony or charge of the Court upon either theory. Both of these issues were fairly presented to the jury in the Circuit Judge’s charge, without objection on the part of the defendant, and with the finding of the jury we are not concerned.