Akridge v. Atlanta Journal Co.

• Decision Date: 01 December 1937
• Docket Number: 26202.
• Citation: 194 S.E. 590,56 Ga.App. 812
• Parties: AKRIDGE v. ATLANTA JOURNAL CO. et al.
• Court: Georgia Court of Appeals

194 S.E. 590

56 Ga.App. 812

AKRIDGE v. ATLANTA JOURNAL CO. et al.

No. 26202.

Court of Appeals of Georgia, First Division

December 1, 1937

Rehearing Denied Dec. 17, 1937.

Syllabus by the Court.

The court did not err in granting a nonsuit as to the Atlanta Journal Company.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Suit by Charles Akridge against Martin Christian and the Atlanta Journal Company. A judgment was entered granting a nonsuit as to the Atlanta Journal Company, and the plaintiff brings error.

Affirmed.

Maddox & Griffin, of Rome, for plaintiff in error.

Maddox Matthews & Owens, of Rome, for defendants in error.

BROYLES Chief Judge.

Charles Akridge brought suit against Martin Christian and the Atlanta Journal Company, on account of personal injuries and damage to his automobile, alleging in part that Christian was the agent of the Atlanta Journal Company, and it was his duty to see after local agencies and make collections in Northwest Georgia, including the City of Lafayette; that in the execution of his duties he used an automobile; that at the time of the injury complained of, which occurred on Broad street in Rome, Ga., he had been to Lafayette on business for the Journal Company and was returning to his headquarters in Rome, and was acting within the scope of his employment; that he drove his automobile against the back of petitioner's automobile, resulting in injury to petitioner and petitioner's automobile. The Atlanta Journal Company answering, admitted that Christian was its agent and employee; but denied that Christian, at the time in question was acting within the scope of his employment and about the business of the defendant company, and denied that he was returning from Lafayette at said time. At the conclusion of the evidence the court granted a nonsuit as to the Atlanta Journal Company, and, upon motion of the plaintiff, declared a mistrial as to the defendant Christian.

While ordinarily a principal would not be liable for an injury caused by an agent if the agent were not liable, in view of the pleadings and orders of the court above stated and the issues to be determined, it is unnecessary to discuss or set forth the pleadings or the evidence so far as they relate to the liability of the defendant Christian. The issues raised by the assignments of error are as follows: (1) Were certain statements of the defendant Christian, which the plaintiff contended were made at the scene of and immediately after the wreck, admissible in evidence against the Atlanta Journal Company? (2) Did counsel for the Atlanta Journal Company have the right to examine the defendant Christian whom the plaintiff called "as a witness against himself and for the purpose of cross-examination"? (3) Did the court properly grant a nonsuit as to the Atlanta Journal Company?

1. The bill of exceptions shows that the plaintiff (Charles Akridge) testified in his own behalf that the defendant Martin Christian told him that he (Christian) was coming from Trion and Lafayette where he had been collecting for the Atlanta Journal, and counsel for defendants moved to rule out this testimony, as to the defendant Atlanta Journal Company, on the ground that it was hearsay and the Atlanta Journal Company was not bound by the statement of Mr. Christian. Counsel for the plaintiff insisted that the statement of Mr. Christian made at the time was a part of the res gestæ and admissible, and stated further that he expected the witness to answer that Christian had stated that he had been to Trion and Lafayette, was on his way home, had his collection books and papers in the automobile, and that they were the collection books and papers of the Atlanta Journal Company. The court ruled that until it was shown that Christian was the agent of the company and employed at the time in the company's business, the evidence was not admissible; and on this ruling the plaintiff assigns error for the reason it was admitted in the answer of the Atlanta Journal Company that Christian was the agent of the Journal Company and said statements of Christian were made at the time and place of the wreck. The bill of exceptions also shows that H. P. Rinehart, a witness for the plaintiff, testified: "I heard Mr. Christian make the remark to Mr. Akridge he could take his car to the Ford place and have it repaired, and when they did to send the bill to the Atlanta Journal and they would pay it. * * *" Counsel for defendants, in behalf of the Atlanta Journal Company, moved "to exclude from the testimony of the witness the statement 'send the bill to the Atlanta Journal' and so forth, as immaterial and irrelevant." The court sustained the objection, and on this ruling the plaintiff assigns error, and says that the statements of Christian, being made at the time and place of the wreck, constituted a part of the res gestæ and were therefore admissible. The bill of exceptions also shows that Lee Perry, a witness for the plaintiff, testified that the defendant Christian "said he had been [come] from Trion or Lafayette where he had been collecting for the Journal," the witness "having previously testified that this conversation took place at the scene of the wreck between Christian, one of the defendants, and Charles Akridge." Counsel for the defendants objected to this evidence as immaterial, irrelevant, and incompetent. The court sustained the objection, and on this ruling the plaintiff assigns error on the ground that it is contrary to law.

The plaintiff alleged in his petition that the defendant Christian had been to Lafayette, Ga., on business for the defendant Atlanta Journal Company and, in the course of his duties as agent and employee of said Company, was returning to his headquarters and home in Rome and was acting within the scope of his employment and about the business of the Journal Company at the time of the injury. The evidence above set out, and excluded by the court, would tend to sustain this contention of the plaintiff, and if it were admissible the nonsuit was improperly granted. There is no issue as to the alleged statements of the defendant Christian being admissible in evidence against him. The issue is whether they were admissible in evidence against the Atlanta Journal Company. Were they admissible because the defendant Christian was the admitted agent of the defendant Atlanta Journal Company and the statements were made at the time and place of the wreck and consequently a part of the res gestæ, or were they properly excluded because they were hearsay, incompetent, and irrelevant as to the Atlanta Journal Company, and because the declarations of the alleged agent were not admissible to prove that he was acting as agent at the time of the injury? The cause of action of the plaintiff is based purely on the allegation "that at the time complained of the defendant Martin Christian * * * was acting within the scope of his employment and about the business of the defendant the Atlanta Journal Company." The Atlanta Journal Company admitted that Christian was its agent, but denied that Christian was acting as its agent or was acting on or about the company's business at the time of the alleged injury. Under these circumstances, the plaintiff must first prove that Christian was acting as agent for the Atlanta Journal Company at the time of the injury, before the alleged statements of Christian would be admissible against the Journal Company. "Where there is an attempt to bind a person by the act of an agent, it is necessary for the person asserting the agency to establish it. After a prima facie case is made, the declarations of the agent himself, made accompanying the transaction or during the execution or settlement of it, are admissible in corroboration of the prior evidence tending to establish the agency." (Italics ours.) White Sewing Machine Co. v. Horkan, 7 Ga.App. 283(3), 66 S.E. 811. See, also, Delpheon Co. v. Crankshaw, 25 Ga.App. 672(4), 104 S.E. 455.

In the instant case the record fails to show that there was any "prior" evidence establishing the agency at the time of the injury which would pave the way for the admission of these declarations by the alleged agent of the Atlanta Journal Company. And the agency of Christian at the time of the injury could not legally be proved by testimony of the declarations of Christian, the alleged agent. In Hall v Mize, 142 Ga. 395(2), 83 S.E. 92, it is said: "Where it is sought to bind one by the acts of another, who is alleged to be his agent, the agency cannot be proved by testimony of the statements of the alleged agent." (Italics ours.) See, also Herrington & Co. v. Shumate Razor Co., 6 Ga.App. 861, 65 S.E. 1064; Horton v. Tway, 43 Ga.App. 164, 158 S.E. 365. Nor does the fact that the alleged statements of the defendant Christian were made at the time and place of the injury render them admissible in evidence against the defendant Atlanta Journal Company, because "the declarations of an alleged agent, though made dum fervet opus, are not admissible to prove his agency." Franklin County Lumber Co. v. Grady County, 133 Ga. 557 (1), 66 S.E. 264. In the opinion in that case, it is said: "The court permitted witnesses for the plaintiff to testify to declarations made by certain persons, * * * which declarations tended to show that such persons were doing this work as the agents of the defendant company. In each instance counsel for defendant sought to have the testimony excluded upon the ground that agency cannot be proved by the declaration of the alleged agent. The judge in his rulings seems to have been of the opinion that declarations of this character, though not generally admissible to prove the agency of the person making them, are admissible for this purpose if made dum fervet...