Hematite Min. Co. v. East Tennessee, V. & G. Ry. Co.

• Decision Date: 17 July 1893
• Citation: 18 S.E. 24,92 Ga. 268
• Parties: HEMATITE MIN. CO. v. EAST TENNESSEE, V. & G. RY. CO.
• Court: Georgia Supreme Court

18 S.E. 24

92 Ga. 268

HEMATITE MIN. CO. v. EAST TENNESSEE, V. & G. RY. CO.

Supreme Court of Georgia

July 17, 1893

Syllabus by the Court.

1. The general authority of a railway agent to give receipts for goods delivered for transportation extends only to such receipts as are given at the time the goods are delivered, or so near there as to be, according to business usage, a part of the res gestae. Unless special authority be shown receipts executed by the agent several months after the transaction--more especially if litigation was then contemplated, or had become probable--are not evidence to affect the company.

2. Information furnished a witness by an agent of a railway company as to the contents of a record kept by the company is inadmissible in evidence against the company, when it appears that the information given related to transactions long past and it does not appear that the furnishing of such information was within the scope of the agent's employment.

3. Although the plaintiff, while a witness on the stand testified generally that he remembered certain facts stated by him, and that he used certain books and memoranda to refresh his memory, (the memoranda, but not the books, being then before him,) his evidence as to the numbers and destinations of certain cars, and the dates of their shipment, was inadmissible; it further appearing from his testimony that he could state none of these particulars without referring to the books, or to the memoranda he had taken therefrom, and that the entries in the books were sometimes written by himself, and sometimes by another in his employ; it being also apparent that at the time of testifying the witness was unable to state which entries were made by himself, and which by the other.

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by the Hematite Mining Company against the East Tennessee, Virginia & Georgia Railway Company for failure to deliver freight. Judgment for defendant. Plaintiff brings error. Affirmed.

J. F. Hillyer, for plaintiff in error.

McCutchen & Shumate and Hoskinson & Harris, for defendant in error.

LUMPKIN J. 1, 2.

The plaintiff sought to recover damages for an alleged failure to deliver certain car loads of ore claimed to have been received by the railway company for transportation. If the agent of the company knew personally of the delivery of the ore, he would have been a competent witness to prove the fact, and should have been introduced for this purpose. Instead of doing this, however, the plaintiff undertook to make out its case, in part, by tendering receipts for the ore executed by this agent many months after the transaction. The rejection of this evidence is one of the errors complained of. In our opinion, the ruling of the court below was right. To render such receipts admissible, it must affirmatively appear that they were given at the time the goods were delivered for transportation, or so near thereto as to be according to business usage, a part of the res gestae; otherwise they would be the mere declarations of the agent, not made dam fervet opus, and therefore not binding upon the company he represented. Under such circumstances the agent of a railway company has no authority to bind it by admissions of this kind, because it is manifestly not within the scope of his authority, as agent, to make them. It would be very dangerous to receive in evidence against a principal-whether an incorporated company or otherwise--declarations of an agent, made long after the business in which the agent was acting had been...