Johnson v. The McLain Investment Company

• Decision Date: 06 February 1909
• Docket Number: 15,593
• Citation: 100 P. 52,79 Kan. 423
• Parties: LILLIE M. JOHNSON et al. v. THE MCLAIN INVESTMENT COMPANY
• Court: Kansas Supreme Court

100 P. 52

79 Kan. 423

LILLIE M. JOHNSON et al. v. THE MCLAIN INVESTMENT COMPANY

No. 15,593

Supreme Court of Kansas

February 6, 1909

Error from District Court, Barton County; J. W. Brinkerhoff, Judge.

Decided January, 1909.

Error from Barton district court; JERMAIN W. BRINCKERHOFF, judge. Opinion on rehearing, filed February 6, 1909. Affirmed. (First opinion not reported.)

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Setting Out a Fire--Admissions by an Agent--Spontaneous Exclamations--Hearsay. A barn was destroyed by a fire which originated the day before on a neighboring ranch, whose manager with others discovered the danger while the fire was at some distance and vainly endeavored to save the building. In an action by the owner of the barn against the owner of the ranch, testimony that while the barn was burning the manager said that he had himself set out the fire was not competent evidence that he had in fact done so. The declaration of the manager was not rendered competent by reason of his being the defendant's agent for it was a mere narration of a past transaction, not relating to, explaining or characterizing any act in which he was then engaged; and the circumstances do not indicate that it was such a spontaneous exclamation made under the stress of nervous excitement that its truth could be presumed without being sworn to.

Russell & Russell, and Osmond & Cole, for plaintiffs in error.

D. A. Banta, J. W. Clarke, Boyle & Howell, and Guthrie & Smith, for defendant in error.

OPINION

MASON, J.:

Lillie M. Johnson and others brought an action against the McLain Investment Company, alleging that one Frank Jones, an agent of the defendant in charge of a ranch which it owned, had negligently allowed a fire to spread from this ranch to premises of the plaintiffs, where it destroyed a barn. A demurrer to the plaintiffs' evidence was sustained and they brought the case here. The question principally argued at the hearing was whether the evidence showed such relations between the company and Jones as to render it liable for the results of his negligence, and this court, finding that that question should be answered in the affirmative, ordered a reversal of the judgment.

In a petition for a rehearing counsel for the defendant urged that no competent evidence had been introduced tending to show that Jones himself had anything to do with the setting out of the fire. This contention had been made in the brief, but in such close connection with the claim that there was no evidence to connect the company itself with the fire that it escaped special attention. To give opportunity for an examination of this phase of the matter a rehearing was granted.

There was evidence that the fire started upon the land of the defendant and spread to that of the plaintiffs, but the only testimony tending to show what occasioned it was that of two witnesses, who said that on the morning the barn was burned they came to the scene of the fire, which was then about three hundred yards from the barn, and found Jones and another man trying to check it. They gave their assistance, but all efforts proved unavailing and the barn was destroyed. The substance of the evidence under consideration was embodied in this question and answer, to which objections were duly made:

"Ques. I will ask you . . . to tell the jury what, if any, statements were made by Mr. Jones at the time of the burning of the barn and while you were there with reference to the origin of the fire and the cause of its spreading? Ans. He told me he was burning off some weeds and rubbish in a draw that runs down on the northeast corner of the pasture and the fire broke over in the grass in the pasture and burned it off, which he wanted to burn off anyway, and that night he thought the fire was safe and went home, and the next morning he looked down there and saw the smoke, and riding down there he found the fire was going toward this barn of Mrs. Johnson's, and he goes back and he and his man and a team goes down and tries to prevent the fire from burning the barn."

It is clear that this testimony was not rendered competent to prove the origin of the fire by the fact that the unsworn statement it introduced was that of the defendant's agent, for the statement was not made in the course of the agent's employment. It had no reference to, nor did it explain or characterize, any act in which he was engaged; it was a mere narration of a past transaction. (2 Wig. Ev. 1078; Kansas Pacific Rly. Co. v. Pointer, 9 Kan. 620, 630; U. P. Ry. Co. v. Fray, 35 Kan. 700, 704, 12 P. 98; Dodge v. Childs, 38 Kan. 526, 529, 16 P. 815; Mo. P. Rly. Co. v. McCally, 41 Kan. 655, 21 P. 574; Coal Co. v. Dickson, 55 Kan. 62, 70, 39 P. 691; Mo. P. Rly. Co. v. Johnson, 55 Kan. 344, 347, 40 P. 641; Railroad Co. v. Osborn, 58 Kan. 768, 51 P. 286; Railroad Co. v. Cattle Co., 59 Kan. 111, 115, 52 P. 71; Walker v. O'Connell, 59 Kan. 306, 308, 52 P. 894; Robins v. Murdock, 69 Kan. 596, 77 P. 596; Railroad Co. v. Burks, 78 Kan. 515, 96 P. 950; Case v. Pulsifer, ante, p. 176.)

There is, however, another theory upon which a plausible argument can be made for the admission of this conversation as evidence that Jones set out the fire--namely, that it falls within the exception to the rule excluding hearsay for which in default of a better term Doctor Wigmore adopts the name "spontaneous exclamations." As that writer points out (3 Wig. Ev. § 1745), the principle upon which this exception depends is entirely distinct from that back of the rule admitting evidence of spoken words regarded as verbal acts, but has been so...