Bell v. Washam
| Decision Date | 07 July 1950 |
| Docket Number | No. 1,No. 32937,32937,1 |
| Parties | BELL v. WASHAM |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. While agency may be proved by the alleged agent's testimony, mere declarations of one outside of court cannot in the first instance be received to establish agency, but after a prima facie case is otherwise made or ratisfication shown such a declaration may be admitted in evidence in corroboration of other evidence tending to prove agency.
2. Upon application of the above stated principle of law, the court erred in admitting in evidence, over the objection that it was an attempt to prove agency, testimony of the plaintiff that the driver of a loaded truck, who caused another automobile to run into and damage her car, stated to a police officer investigating the collision that he was driving the truck for the defendant, there being no other evidence tending to show agency or ratification.
3. Whether or not the driver's statement that the defendant owned the truck was inadmissible it is unnecessary to decide, since ownership without proof of agency as here does not establish liability.
4. The failure of the defendant to make objection to certain questions in interrogatories to be executed before a commissioner did not bar him from objecting upon the trial to testimony upon substantial grounds relating to the incompetency of the testimony.
5. Testimony that the truck driver stated that he could not stop the truck because of its heavy load was not subject to the objection that it was an attempt to prove agency, the statement having no relevancy to such issue, and it was admissible as part of the res gestae on the question of negligence.
6. Stripped of the objectionable testimony referred to in headnote 2, the evidence failed to show that at the time of the collision the driver of the truck was the agent or servant of the defendant, and no liability existing on the part of the defendant, the court erred in overruling the amended motion for new trial.
Mrs. C. J. Washam brought an action in the Superior Court of Bulloch County against Alton Bell to recover for damages to her automobile. It was alleged and proved by her interrogatories that while driving along highway No. 80 and approaching a point approximately one mile south of Pooler, Georgia, and, after stopping because of another automobile in front of her stopping to permit another car to leave the highway on the left side, her car was run into, from the rear and damaged by another car which had been struck by one which had just been struck by a loaded truck. It was alleged that this truck was driven by W. A. Parrish, an employee and agent of the defendant, in and about the business of the defendant and in the course of the employment of Parrish, and various acts of negligence against him were charged. The defendant denied all of the material allegations of the petition. The only evidence upon the trial consisted of the interrogatories of the plaintiff. The jury returned a verdict in her favor. The defendant filed a motion for new trial on the usual general grounds, and by amendment added two special grounds. The court overruled the motion for new trial, and the exception here is to that judgment.
Roscoff Deal, Pembroke, Deal & Bacon, Statesboro, for plaintiff in error.
A. S. Dodd, Jr., Statesboro, for defendant in error.
WORRILL, Judge (after stating the foregoing facts).
Special ground 1 complains because of the admission in evidence of the following testimony of the plaintiff by interrogatories over the objection that it was an attempt to prove agency by the statement of the purported agent, the truck driver, to a third person and that it was hearsay: 'I heard the driver of the truck tell the police officer who was investigating the accident that he was driving the truck for Alton Bell, who owned it.' Apparently this testimony was for the purpose of establishing that the driver of the truck was the servant or agent of the defendant and that the defendant was the owner of the truck. While agency may be proved by the alleged agent's testimony, it is well established that mere declarations of one outside of court cannot in the first instance be received to establish agency, but after a prima facie case is otherwise made or ratification shown such a declaration may be admitted in evidence in corroboration of other evidence tending to prove agency. In Heitmann v. Commercial Bank, 7 Ga.App. 740(3-a), 68 S.E. 51, it was held: 'While it is permissible to prove as a part of the res gestae of a transaction that one of the parties purported to act as the agent of a third person, yet his declaration to that effect is not of sufficient probative value to establish the agency, unless there is further proof, direct or circumstantial, to show that he was in fact an agent, or that his acts as agent had been ratified by the alleged principal.' See also White Sewing Machine Co. v. Horkan, 7 Ga.App. 283(3), 66 S.E. 811; Lawhon v. Henshaw, 63 Ga.App. 683, 684, 11 S.E.2d 846, et cit. The fact that the declaration was made as part of the res gestae does not alter the rule. Swint v. Milner Banking Co., 30 Ga.App. 733(3), 119 S.E. 336. See also Akridge v. Atlanta Journal Co., 56 Ga.App....
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