Griffin v. Montgomery

• Decision Date: 30 June 1858
• Citation: 26 Ga. 111
• Parties: Daniel Griffin, plaintiff in error. vs. Montgomery and West Point Railroad Company, defendant in error.
• Court: Georgia Supreme Court

26 Ga. 111

Daniel Griffin, plaintiff in error. vs. Montgomery and West Point Railroad Company, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1858.

Trover, from Muscogee. Tried before Judge Worrill, May Term, 1858.

The Montgomery and West Point Railroad Company conveyed a negro boy, Warren, from Columbus, belonging to Daniel Griffin, the plaintiff, away from his possession; whereupon he brought his action of trover.

On the trial of the case, plaintiff proposed to prove by the admission of David Cropp, conductor of one of the passenger trains of defendant, to the superintendent, Samuel G. Jones, that he carried plaintiff's boy, Warren, over the road, knowing him to be a negro, and that he belonged to plaintiff; the negro was passing for a white man, and he humored the joke, and charged him full fare. This admission was the last month of 1855, or the first of 1856, and Cropp was then a conductor on the passenger train of defendant.

Defendant's counsel objected to this testimony on the ground, that it was not a part of the res gestœ. The objection was sustained by the Court, and the plaintiff excepted.

Plaintiff then proposed to prove that Cropp made the same admission to Robert Simons, the night after he carried the negro boy Warren over the road. To which defendant's counsel objected. The Court sustained the objection, and plaintiff's counsel excepted.

Plaintiff then proved the value of the negro; a demand on defendant for the negro, and a refusal by the defendant to deliver him; and the ownership of the negro Warren. The right to possession being admitted to be in plaintiff.

Plaintiff closed his case; whereupon, defendant moved the Court for a nonsuit, which was granted by the Court, and plaintiff excepted, and on these exceptions assigns error.

R. J. Moses, by Jno. A. Jones, for plaintiff in error.

Hines Holt, for defendant in error.

By the Court.—Lumpkin, J., delivering the opinion.

To bind the principal by the admissions of his agent, theymust be made at the time the thing occurs, or the business is transacted. 1 Greenleaf, sec. 713 and note, and the authorities there cited. The conductor is a competent witness in this case, and should have been examined. His sayings, made at a subsequent time, are no part of the res gestœ, and were properly excluded by the Court.

Judgment affirmed.

DECLARATIONS OF AGENT—ADMISSIBILITY AS EVIDENCE. " 'The declarations of the agent as to the business transacted by him are not admissible against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent be dead.' This is but an affirmation of the ancient rule, and often recognized by this court: 24 Georgia, 211; 26 Ibid. 1ll; 29 Ibid. 399 and 461. The case in 26 Georgia, 111, was whether the sayings of a conductor of a railroad train, whilst still in office, were admissible as to a past occurrence happening on his train. It was held they were not." The Newton Manufacturing Company v. White, 53 Ga. 400.

"The sayings of the agents of a railroad company are admissible and will bind the company, only when made in the particular business entrusted to them, and while engaged in that business." Evans & Rag-land v. Atlanta & West Point R. R. Co., 56 Ga. 498 (1). * * * * "Section 3034 of the Civil Code of 1895, and many decisions of this court, settle it beyond controversy: 6 Georgia Reports, 365; 19 Ibid. 416; 29 Ibid. 399, 461; 34 Ibid. 330; 26 Ibid. 1ll, and others. These Georgia cases and our Code confine the admissibility of the sayings of the agent to the business entrusted to him, and to the time while so employed, and exclude his sayings as to past transactions. In our State, they are admissible only upon the principle of being part of the 'res gestae.' It is clear, therefore, that the court rejected the indorsement of this agent and of the other agents, properly, because they spoke or wrote about past transactions, and there was no proof that it was their business to investigate these transactions and write or make statements about them." Id. 500.

"Sayings of the president of the construction company which was building and equipping the railroad, made two or...