Longman v. Anderson, 23891.

• Decision Date: 20 June 1924
• Docket Number: No. 23891.,23891.
• Parties: LONGMAN v. ANDERSON et al.
• Court: Minnesota Supreme Court

160 Minn. 15

199 N.W. 742

LONGMAN

v.ANDERSON et al.

No. 23891.

Supreme Court of Minnesota.

June 20, 1924.

Appeal from District Court, Hennepin County; G. W. Buffington, Judge.

Action by Signa T. Longman against Rachael Anderson and others, and the Ramaley Boat Company. From a judgment for plaintiff, the defendant last named appeals. Reversed, with directions.

Syllabus by the Court

Record examined, and held, that the question of contributory negligence was for the jury.

Statements or declarations of an officer of a corporation are admissible against a corporation only when made in the course of the performance of their authorized duties as agents so that they constitute a part of their conduct as agents-a part of the res gestae.

Such statements, when made in casual conversation, and not made in the scope of the agency while transacting business for his principal, nor in relation to a transaction or matter then depending in which he was acting or called upon to act or speak for his principal, are inadmissible.

Such statements relating to past transactions are hearsay.

Such statements of an officer of a corporation are not received as admissions but as a part of the res gestae. Kingman, Cross, Morley & Cant, of Minneapolis, for appellant.

Olof L. Bruce, of Minneapolis, for respondent.

WILSON, C. J.

The defendant Ramaley Boat Company has appealed from a judgment entered in favor of plaintiff against it pursuant to a verdict for $3,500 as damages on account of the death of Carl H. Longman, which occurred by reason of his being struck down by an automobile driven by defendant Rachael Anderson. Her father, John Anderson, another defendant, was riding with her, and the verdict was against all the defendants. The special administratrix of the estate of decedent brought this action for the benefit of the widow and two children.

Appellant is engaged in the business of building boats, having its place of business at Wayzata. J. E. Ramaley is its manager and treasurer, and as such looks after the business of the corporation. It has an office and keeps books of account. Rachael Anderson has been its bookkeeper for more than two years. She lived with her father. They kept an automobile. Appellant had no interest in, nor connection with, this automobile. It was used at times by the bookkeeper in going to and from her work. The books were kept in the office and put in a vault therein at night.

On September 14, 1921, decedent, with his wife and one Carl Johnson, were driving in an automobile on Minnetonka boulevard, and they had a flat tire. They stopped to make a change near or under a street light at the edge of the street. This street had a paving of about 18 feet in width. The car was brought to a standstill at the righthand side of the street with the left wheels only remaining on the pavement. While decedent was at the rear of his car taking off the extra casing, which was carried there in the usual way, and was in a sitting position in this work, he was struck by the Anderson car operated by Rachael Anderson. Her father was with her. At the close of her work on that day at about 5:30 p. m. her father had come for her in the car, and she had gone with him to their home, and after having their evening meal they started to drive in to Minneapolis. On this trip the Anderson car ran into the rear of the Longman car, and decedent was crushed between the cars, causing his death almost immediately. This happened at about 7:15 p. m., and it was then about dark, and was raining lightly.

At the time of this unfortunate incident Rachael Anderson had with her in the car the account books and a small adding machine belonging to her employer. The presence of these books and machine is explained by Rachael Anderson in this way. She had had trouble for two or three weeks in getting a balance. She was just a few cents off in the balance. She had a cousin, Helen Carlson, in Minneapolis, who was a stenographer, and she concluded to visit her on the evening in question, and she thought that her cousin would check over with her. She went there to have help in checking the figures. She took the books and machine without the knowledge or consent of her employer, and was giving her time to this work outside of her regular hours. No one other than her father knew of the trip to her cousin's or the purpose thereof. She was supported in this version by appellant. In opposition thereto, for the purpose of attempting to show that at the time of the collision Rachael Anderson was acting in the course of her employment and in furtherance of her employer's business, the plaintiff put in evidence, partly over the objection of appellant, the following testimony:

‘Signa T. Longman: She (Miss Anderson) after the accident said she was taking her employer's books to the city to have them audited.

‘Sheriff Earl Brown: She (Miss Anderson) told me she was in the employ of Ramaley Boat Works, one of the boat works at Wayzata, and she was bringing their account books into town that night. * * * It is my recollection that she said she was bringing them in to do some work on them. She was their bookkeeper.’

Verney L. Johnson testified that on the day following the accident he was at the hospital where Miss Anderson was, and Mr. J. E. Ramaley was there, and they talked in a casual way, and ‘then Mr. Ramaley said that arrangements had been made to take the books in to Minneapolis inasmuch as Miss Anderson was having difficulty with them. * * * He volunteered the information.’

Appellant's motion to strike out all the foregoing testimony was denied, and the trial court submitted to the jury the question as to whether Rachael Anderson was acting as the servant of appellant at the time this accident occurred, and as to whether this act was done in the course of her employment as a bookkeeper of appellant and by authority of appellant, either expressly or impliedly conferred.

The jury found against appellant and Rachael Anderson. Appellant's motion for judgment notwithstanding the verdict or for a new trial was denied, and appellant appealed from the judgment entered.

Appellant now claims: (1) That decedent was guilty of contributory negligence; (2) that there was error in the reception of evidence and in denying appellant's motion to strike out certain testimony; and (3) that there is not...