Marsh v. The South Carolina R.R. Co.

• Decision Date: 31 January 1876
• Citation: 56 Ga. 275
• Parties: Mary J. Marsh, plaintiff in error. v. The South Carolina Railroad Company, defendant in error.
• Court: Georgia Supreme Court

56 Ga. 275

Mary J. Marsh, plaintiff in error. v. The South Carolina Railroad Company, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Railroads. Principal and agent. Presumptions. Evidence. Witness. Practice in the Superior Court. Before Judge Tompkins. Richmond Superior Court. April Term, 1875.

Reported in the opinion.

Hook & Webb, for plaintiff in error.

W. T. Gould, for defendant.

Bleckley, Judge.

A wife sued a railroad company for the homicide of her husband, who was run over and killed by a train while he was engaged in uncoupling the cars. He was an employee of the company; and another employee, one Butler Addison, was present and witnessed the occurrence. Previous to the trial, the plaintiff's counsel had made some effort to obtain an interview with Addison for the purpose of learning the facts and ascertaining what he would testify, and had been prevented from so doing by the interposition of the company's local agent. Addison, it seems, had made a statement of the facts to the plaintiff immediately after the occurrence. He had also said to one Fullerton that the death was the result of the engineer's failure to put on brakes; that he, Addison, was afraid to tell it, lest he should be discharged; and that the agent would not allow him to communicate the facts of the case to the plaintiff's counsel until the trial.

Before Addison himself was introduced as a witness, his declarations made to the plaintiff and to Fullerton, were offered *in evidence; and, on objection by the defendant, the court excluded them.

The plaintiff then examined Addison and was permitted to put to him leading questions. A like privilege was accorded to defendant on cross-examination. Addison testified to nothing about brakes, and was asked no questions on that subject except whether he had not said to plaintiff, immediately after the killing, that her husband was killed in consequence of the brakes not being on. The court ruled against the answer as evidence.

1. The sayings of Addison were sought to be introduced, partly on the ground that the agent had hindered intercourse with him by plaintiff's counsel previous to the trial. It is not clear to us how that would be any reason for admitting them, if it were conceded that the agent's conduct was improper, and that such conduct was within the scope of his authority. But improper conduct by an agent, not within his authority, certainly is not to be imputed to the principal, nor is the principal to suffer a penalty on account of it.

2. There is no presumption that any mere local agent of arailroad is employed to stand between witnesses and those interested in their evidence, or that he was instructed to do so. To brine such an act within the sphere of delegated powers, there must be proof of the delegation. There was no such proof in the present case, and consequently whatever the agent did in that way must be supposed to have been done on his own motion and not by the procurement of the company.

3. Nor were Addison's declarations...