McDermott v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1881
• Citation: 73 Mo. 516
• Court: Missouri Supreme Court
• Parties: MCDERMOTT v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant

73 Mo. 516

MCDERMOTT

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant

Supreme Court of Missouri.

April Term, 1881.

Appeal from Clay Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

Geo. W. Easley for appellant.

The admissions of Goodwin not being made at the time of the accident, so as to be of the res gestae, nor during the transaction of any business in the scope of his employment, were inadmissible. 2 Starkie Ev., 24; Story Agency, §§ 134 to 137; Va. & T. R. R. Co. v. Sayers, 26 Gratt. 328; 2 Thompson Neg., 1054, note 3; Rogers v. McCune, 19 Mo. 557; Price v. Thornton, 10 Mo. 140; Agassiz v. London Tram. Co., 21 W. R. 199; Fairlee v. Hastings, 10 Ves. 123; Griffin v. R. R. Co., 26 Ga. 111; Robinson v. R. R. Co., 7 Gray 92; Luby v. R. R. Co., 17 N. Y. 131; Moore v. Meacham, 10 N. Y. 207; Lane v. Bryant, 9 Gray 245; Stiles v. R. R. Co., 8 Metc. (Mass.) 44; Anderson v. R. R. Co., 54 N. Y. 334; M. & M. R. R. Co. v. Finney, 10 Wis. 388; Lafayette & Ind. R. R. Co. v. Ehman, 30 Ind. 83; Pennsylvania R. R. Co. v. Books,57 Pa. St. 339; Mich. Cent. R. R. Co. v. Gougar, 55 Ill. 503; Bellefontaine R. R. Co. v. Hunter, 33 Ind. 335; Ryan v. Gilmer, 2 Mont. 517; s. c., 25 Am. Rep. 744; Packet Co. v. Clough, 20 Wall. 528; Golson v. Ebert, 52 Mo. 260; Whitaker v. R. R. Co., 51 N. Y. 295; First Nat. B'k v. Ocean B'k, 60 N. Y. 297; s. c., 19 Am. Rep. 181.

Wm. S. Carroll for respondent.

Goodwin, the roadmaster, was the appellant itself in and about the hiring, retaining and discharging section foremen, such as Dawson, and he continued to be the appellant in that behalf until Dawson was finally discharged, and anything he said about Dawson's incompetency during that time was said by appellant, not in narrating the incidents of the accident, but in estimating the competency or incompetency of Dawson, an independent matter from those incidents, save and except Dawson's immediate conduct at the time of the injury, which is not attempted to be proved by any statements of Goodwin. Burnside v. R. R. Co., 47 N. H. 554; Packet Co. v. Clough, 20 Wall. 540; Gilman v. R. R. Co., 13 Allen 433; Morse v. R. R. Co., 6 Gray 450; Brothers v. Cartter, 52 Mo. 372; Noyes v. Smith, 28 Vt. 59; Frazier v. R. R. Co.,38 Pa. St. 104; Harper v. R. R. Co., 47 Mo. 567; Gormly v. Vulcan Iron Works, 61 Mo. 494; Laning v. R. R. Co., 49 N. Y. 521; s. c., 10 Am. Rep. 417; Flike v. R. R. Co., 53 N. Y. 549; s. c., 13 Am. Rep. 545; Baulec v. R. R. Co., 59 N. Y. 361; s. c., 17 Am. Rep. 325; Ford v. R. R. Co., 110 Mass. 240; s. c., 14 Am. Rep. 598.

HENRY, J.

The plaintiff was employed by defendant as a laborer on track repairs, and was injured, he alleges, in consequence of the negligence of one Dawson, defendant's section foreman, in having permitted a hand-car to be on the track when the track should have been clear for the passage of trains, and in negligently and carelessly ordering plaintiff to remove the car in the face of an approaching train. It is further alleged that Dawson was incompetent, and that the defendant had knowledge of that fact before the injury complained of occurred. It is also alleged that the company had negligently allowed piles of wood to be placed and remain close to the track, so as to render it unsafe and dangerous for the employes at work on the track; that the hand-car was struck by an engine of a train and thrown against the plaintiff, wounding him severely, and that his escape was prevented by the piles of wood at the side of the track. He sued the defendant for damages, and had judgment, from which this appeal is taken. The answer was a general denial.

To sustain the allegation of the incompetency of Dawson and the knowledge of the company that he was incompetent, the plaintiff, against defendant's objection, testified that in August, 1875, some days after the accident, he saw Mr. Goodwin, the defendant's roadmaster when the accident occurred, whose duty it was to employ and discharge section foremen, and who continued as such, until and after August, 1875; and that Goodwin, on that occasion, told plaintiff that Dawson was incompetent, and he wanted plaintiff to take his place as section foreman. The principal question in this case relates to the admissibility of this evidence.

In Betham v. Benson, Gow's Rep. 48, Ch. J. Dallas announced the doctrine in regard to the admissibility of declarations of an agent against the principal, as follows: “It is not true that where an agency is established, the declarations of the agent are admitted in evidence merely because they are his declarations; they are only evidence when they form part of the contract entered into by the agent on the behalf of the principal, and in that single case they become admissible. The declarations of an agent, at a different time, have been decided not to be evidence; indeed the cases on the subject draw this distinction between the declarations of an agent accompanying the making of, and, therefore, forming a part of the contract, and those made either at a subsequent or antecedent period.” This is now the well established doctrine, and its application to other acts of an agent besides that of making contracts is equally well settled. “The declarations of an agent are received, not as admissions, but as a part of the res gestae.” Haven v. Brown, 7 Me. 425; Rogers v. McCune, 19 Mo. 557; Va. & Tenn. R. R. Co. v. Sayers, 26 Gratt. 328; s. c., 15 Am. L. Reg. (N. S.) 297. Only declarations, therefore, made by the agent while transacting business within the scope of his agency, and then only because a part of the res gestae, are admissible.

The doctrine is very clearly stated in the last above cited case, as follows: “It is true that where the acts of the agent will bind the principal, there his declarations, representations and admissions respecting the subject matter will also bind him, if made at the same time and constituting part of the res gestae. They are of the nature of original evidence and not of hearsay, the representation or statement in such cases being the ultimate fact to be proved and not an admission of some other fact. The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of his agency in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act and a part of the res gestae that it is admissible at all. It is to be observed that the rule admitting the declarations of the agent is founded upon the legal identity of the agent and the principal, and the declarations of the agent to be admissible must be part of the res gestae.” Greenleaf Ev., (Redfield's Ed.) §§ 113, 114; Story on Agency, §§ 134, 137; Griffin v. Mont. R. R. Co., 26 Ga. 111; Robinson v. R. R. Co., 7 Gray 92; Moore v. Meacham, 10 N. Y. 207.

These well established principles usually constitute an unerring guide in determining whether or not declarations of an agent are admissible in evidence against his principal; but the case at bar presents a peculiar phase distinguishing it from the great mass of adjudicated cases on the subject, and as the precise question has not often been passed upon, it remains to be considered whether the principles above announced determine it. The declaration of the roadmaster was not made at the time of the disaster to the plaintiff, and had no connection whatever with it in the chain of causation. The question was, whether the company had knowledge of the incompetency of Dawson; and while knowledge on that subject possessed by Goodwin, the roadmaster, was knowledge of the company, the fact that Goodwin had such knowledge must be proved against the defendant, as any other fact, by the testimony of witnesses and not by the declaration of third parties; and, so far as proof of that fact is concerned, his declarations, except as a part of the res gestae, stand upon the same footing as declarations made by other persons. The ultimate fact to be proved was that the company had knowledge of Dawson's incapacity at the time the accident occurred. If Goodwin, under the same circumstances and at the same time, had declared that the company had that knowledge, no one would contend for the admissibility of that declaration, yet it is urged that a declaration by him of a fact which the law declares to be the ultimate fact, the knowledge of the company, is competent evidence. He might be introduced as a witness to testify of his knowledge, or others might be called to prove that he was told, before plaintiff was injured, of Dawson's incapacity, or that he was cognizant of acts of Dawson showing that incompetency, but his declaration that he knew it is but hearsay as against the company, no more admissible because he was still in the employment of the company, than if that employment had ceased when the...