Fredenthal v. Brown & McCabe

• Decision Date: 09 June 1908
• Citation: 95 P. 1114,52 Or. 33
• Parties: FREDENTHAL v. BROWN & McCABE.
• Court: Oregon Supreme Court

95 P. 1114

52 Or. 33

FREDENTHAL v. BROWN & McCABE.

Supreme Court of Oregon

June 9, 1908

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by C.W. Fredenthal against Brown & McCabe. From a judgment granting a nonsuit, plaintiff appeals. Affirmed.

The defendants, as stevedores, were engaged in loading a ship the Eva, with lumber at the Inman-Poulsen Dock on the Willamette river, at Portland, Or.; the lumber being placed in a sling on the dock, lifted, carried over the vessel, and lowered through the hatchway into the hold by means of a derrick, operated by a steam winch situated on the deck of the ship and belonging to it. The plaintiff and two other men were in the hold of the ship, storing the lumber away as it was delivered there. The lumber was of uneven lengths, and carried in the sling at a slant, so that one end of the load reached the floor first. When the end of the load was within two or three feet of the floor, it was stopped, and plaintiff and his fellow workmen would take hold of it and bear it into the hold, and, upon a signal, the engineer would lower it to the floor. On the occasion of the injury, as the plaintiff and his fellows took hold of the end of the load to bear it into the hold of the ship, the load dropped several inches thus loosening the sling, or otherwise causing the short boards to slip to the floor, striking the plaintiff's foot, which resulted in the injury complained of. The negligence of defendant relied upon by plaintiff is that the stream winch was defective and out of repair, by reason of which it would not hold the load or steady it into the hold of the ship, and was thus the occasion of the accident that caused the injury. Chas. S. Smith was the engineer who operated the steam winch and derrick, and at the trial the plaintiff asked witness Olsen as to a conversation had with Smith immediately after the accident, when he came into the hold of the ship, to which objection was made and overruled and the witness answered: "I asked the engineer what the matter was, and he said it wasn't his fault; that the donkey was leaking steam; he could not handle it; he was unable to handle it--to bring it out; that it was leaking steam. *** He said the packing of the donkey was out of fix he could not do any better than he did; it was out of whack in some way, and he could not handle it." Witness Mahoney also testified, over objection, to the same conversation: "Yes, sir; as Fredenthal was hurt, the engineer was down there in 20 or 25 seconds later. He said it was pretty bad; don't blame him. 'Don't blame me,' he says. Q. State what the conversation was. A. He says: 'It looks pretty bad. Don't blame me. I could not help it. I could not hold it--I could not hold the load.' Q. Did he offer any explanation as to why he could not hold the load? A. No; I do not recollect now. He did not say anything regarding the engine being out of order. He says, 'Don't blame me. I could not hold it,' he says." At the close of plaintiff's case defendant moved for a judgment of nonsuit, on the ground "that no evidence had been introduced here to show any negligence on the part of the defendant," and on other grounds. This motion was at first overruled, but at the close of the trial defendant renewed the motion in this language: "At this time we desire to renew our motion for judgment of nonsuit on the same ground as heretofore argued on the motion for nonsuit when plaintiff finished introducing his testimony in chief." This motion was allowed for the reason that the testimony as to the statements made by Smith, the engineer, was incompetent, as such statements could not bind the principal, and without proof of them there was no negligence shown; and plaintiff appeals.

Claude Strahan, for appellant.

W.D. Fenton and R.A. Leiter, for respondent.

EAKIN J. (after stating the facts as above).

The plaintiff's case rests principally upon whether the statements made by Smith, the engineer, to witnesses Olsen and Mahoney, soon after the accident, in relation to the cause thereof, was competent evidence against the principal as admissions by an agent. It was not shown by the evidence that Smith was the agent of the defendant for any purpose except to operate the winch and derrick. His acts within that employment are the acts of the principal, and what he said about those acts while performing them is a part of the transaction; and, where the acts are competent evidence against the principal, such statements are also admissible as characterizing the acts and constituting a part of them; but statements of a past transaction made by an agent, and not part of the act itself or characterizing it, are not within the scope of the agency, and cannot be admitted in evidence to affect the principal. First Nat. Bank v. Linn Co. Bank, 30 Or. 296, 47 P. 614; Wicktorwitz v. Farmers' Ins. Co., 31 Or. 569, 51 P. 75; Luman v. Golden A.C.M. Co., 140 Cal. 700, 74 P. 307; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1, 84 S.W. 26, 105 Am.St.Rep. 558. In Vicksburg & M.R. Co. v. O'Brien, 119 U.S. 99, 7 Sup.Ct. 172, 30 L.Ed. 299, Mr. Justice Harlan, in considering the admissibility of declarations of an agent as against the principal, says: "There can be no dispute as to the general rules governing the admissibility of the declarations of an agent to affect the principal. *** 'The admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending, "et dum fervet opus." It is because it is a verbal act and part of the res gestae, that it is admissible at all, and therefore it is not necessary to call the agent to prove it; but, wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it.' *** But an act done by an agent cannot be varied, qualified, or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period." The statements of Smith sought to be proved here were no part of his acts in operating the winch, but only his account or opinion of it given afterward in response to an inquiry, and were incompetent to affect the defendants.

It is also urged by plaintiff that the statements of Smith referred to were admissible as a part of the res gestae of the accident because made soon thereafter. Some of the courts have permitted a wide range in the admission of statements made after the principal act as part of the res gestae, as being largely in the discretion of the trial court, on the theory that because of its proximity in time to the main act or transaction there is a strong probability that the declarations are true. In Vicksburg & M.R. Co. v O'Brien, supra, Mr. Justice Harlan, for the majority of the court, as to such statements being res gestae, says: "The cases have gone far enough in the admission of subsequent declarations of agents as evidence against their principals"--while Mr. Justice Field, dissenting, says: "The modern doctrine has relaxed the ancient rule that declarations, to be admissible as part of the res gestae, must be strictly contemporaneous with...