Stroud v. Columbia, N. & L. R. Co.

• Citation: 60 S.E. 963,79 S.C. 447
• Parties: STROUD v. COLUMBIA, N. & L. R. CO.
• Decision Date: 30 March 1908
• Court: United States State Supreme Court of South Carolina

60 S.E. 963

79 S.C. 447

STROUD v. COLUMBIA, N. & L. R. CO.

Supreme Court of South Carolina

March 30, 1908

Appeal from Common Pleas Circuit Court of Laurens County; R. C Watts, Judge.

Action by Emma G. Stroud against the Columbia Newberry & Laurens Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

W. R Richey and Ferguson & Featherstone, for appellant.

Dial & Todd and Wm. H. Lyles, for respondent.

POPE C.J.

Emma G. Stroud brought her action in the court of common pleas for Laurens county against the Columbia, Newberry & Laurens Railroad Company, alleging as her cause of action that the sparks of an engine of the defendant from one of its trains had ignited the dwelling house wherein the plaintiff had about $1,600 worth of property, and that the fire so communicated destroyed the same. The defendant company by its answer admitted its incorporation as claimed in the complaint, but denied the other facts therein stated. The action came on to be heard in the court of common pleas in May, 1907, before Judge Watts and a jury. After hearing the plaintiff's testimony, the defendant declining to offer any, and the charge of his honor, the jury returned a verdict in favor of the plaintiff for $700. After judgment the defendant appealed, alleging error on the part of the circuit judge in admitting certain testimony, and also error in refusing defendant's motion for a new trial. We will now notice the grounds of appeal in the order presented.

1. "Because the presiding judge erred, it is respectfully submitted, in allowing the witness W. R. Richey, over defendant's objection, to testify to a conversation by witness with C. H. Gasque, agent of the defendant company, on the morning after the fire, to the effect that an engine belonging to the defendant company had run up the Greenville road, or up to the power house or furniture factory, that night, throwing out many sparks; the error being that such statement or declaration of C. H. Gasque was not a part of the res gestae, and not within the scope of his agency or authority, which was binding upon the defendant, and was hearsay, and his honor should have so held."

We should carefully notice the preliminary testimony, for thereby it is made to appear that C. H. Gasque was the agent of both the Columbia, Newberry & Laurens Railroad Company and also of the Charleston & Western Carolina Railroad Company, in the city of Laurens, S. C., and as such agent had charge of the yards and everything down there of the said two railroads. The defendant on cross-examination developed by testimony that Mr. Gasque is the depot agent of the two railroads and looked after everything down there. Mr. Gasque, as said agent, was asked by Mr. W. R. Richey what engine passed from the joint depot up the Greenville branch on the night of October 20th at about 9 o'clock, and he replied that it was the engine of the Columbia, Newberry & Laurens Railroad Company. The exception here alleges error of the circuit judge in allowing a statement by Mr. Richey of what admission Mr. Gasque made. The defendant insists that the witness should not have been allowed to testify as to the admission of Mr. Gasque, as agent of the defendant railroad, because it is not made to appear that he was present when the engine left the depot yard on the night of the 20th of October, 1905, but made this admission the next morning. The circuit judge held that it would be difficult to ascertain the fact as to the ownership of the engine in question if the agent of the railroad, who had charge of the yard from which it was operated, could not tell about the thing. There was no effort made to ascertain anything about the engine in its passage from the depot past the residence destroyed by the fire; but the admissions were confined to the ownership of the engine and that such engine did pass on the railroad alongside of the burnt building. It is true that the form of the question presented by Mr. Richey to Mr. Gasque contained a reference to the sparks flying from the engine as it passed along; but that admission was not important, because it was abundantly testified that the engine that passed up about 9 o'clock on the night of the 20th emitted sparks very freely. The importance of these admissions of Mr. Gasque was the indentification of the engine itself. It was nowhere attempted by witnesses that the set engine actually set fire to the house. Any conclusion in that regard was left to the jury as an inference. It must be remembered that this was a corporation, and could only speak through agents; and where such agent has control of the depot, and yards around the same, he was in position to represent the railroad company, so that any admissions such agent made touching engines owned by his principal and operating within the territorial limits of his agency would bind his principal.

The declaration of Mr. Gasque to Mr. Richey relating to the engine of the defendant, so far as its identification and location were concerned, were within the scope of Mr Gasque's agency. As was said in Railroad v. Blake, 12 Rich. Law, 634: "The admission of a party may always be given in evidence against him, and the president sufficiently represents his corporation to make his admission evidence against the company." The mere fact that the agency...