Meyers v. San Pedro, L.A. & S.L.R. Co.

• Decision Date: 23 August 1909
• Docket Number: 2019
• Citation: 36 Utah 307,104 P. 736
• Parties: MEYERS v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY
• Court: Utah Supreme Court

104 P. 736

36 Utah 307

MEYERS v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY

No. 2019

Supreme Court of Utah

August 23, 1909

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Lena Meyers against the San Pedro, Los Angeles & Salt Lake Railroad Company.

Judgment for plaintiff.

Defendant appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

Pennel Cherrington for appellant.

APPELLANT'S POINTS.

"If error is shown it will be presumed to have been

prejudicial unless the record affirmatively shows that no injury did or could result." (Holt v. Spokane Railroad, 35 P 39.) The so-called "service letter" was incompetent and hearsay. It constituted no part of the res gestae, was only a mere recital of past occurrences by one who did not profess to have personal knowledge of them, and who was not shown to be authorized to make admissions of liability on the part of the defendant. (Jones on Evidence, sec. 270; Elliott on Evidence, sec. 255; Encyc. of Evidence, vol. 1, page 556; Rice on Evidence, vol. 1, sec. 230; Wharton's Law of Evidence [3d Ed.], secs. 1173 and 1174; 16 Cyc. 1003.) We admit that anything that Van Housen did or said in the service letter that necessarily qualified the act of issuing the service letter was binding on the company, but the difficulty is that he did not confine himself to those things, but entered upon recitals and conclusions that were no part of the service letter, did not qualify it, but only qualified the prior transaction concerning which he had no authority whatever to bind the company by his admissions based upon conclusions arrived at from hearsay. (See V. &amp T. Railroad Company v. Sayers, 26 Grattan 328 Stiles v. Western Railroad, 8 Metcalf, 44; Home Protection Company v. Whidden, 103 Ala. 203; Trustees v. Mitchell, 73 Ill.App. 543; Farmers' Mutual Insurance Co. v. Bowen, 40 Mich. 147; Chicago City Railway v. McMeen, 70 Ill.App. 220; Teal v. Meravey, 12 Ill.App. 32; Boston & Maine Railroad v. Ordway, 140 Mass. 510; Telephone Co. v. Simms' Administrator, 99 Ky. 404; Tuggle v. St. Louis, etc., Ry., 62 Mo. 425; Lumber Co. v. Kreeger, 52 Mo.App. 418; Bevis v. B. & O. Railway Company, 26 Mo.App. 19; McDermott v. Railroad Co., 73 Mo. 516; B. & O. Railroad v. School District, 96 Pa. St. 65; Williams v. Tel. Co., 116 N.C. 558; Leistritz v. American Zylonite Co., 154 Mass. 382.)

Booth, Lee & Badger and Powers & Marioneaux for respondent.

RESPONDENT'S POINTS.

If the admission of the agent is offered in evidence to establish the existence or non-existence of some fact (other than that of the existence or extent of the agency), it is necessary, in order that the admission or declaration of the agent may be binding on his principal, that the following elements should concur: (1) the fact of the agency must be established; (2) the admission or declaration must be in regard to some matter within the scope of the agent's authority; (3) the admission or declaration must (a) constitute a part of the res gestae of a transaction in which the agent was acting for his principal, and (b) serve to characterize that transaction. (See also Mecham, Agency, sec. 714; Clark & Skyles, Law of Agency, secs. 466-471; Greenleaf, Evidence, secs. 113 and 114; 2 Jones Evidence, secs. 359 and 360; Am. and Eng. Ency. of Law, 1, 690-698; Wigmore, sec. 1078; Ency. of Evidence, 1, 538-556.) The facts in this case clearly bring the "service letter" within the rule making the authorized admission of an agent competent evidence against his principal (1) The "fact of agency" was admitted; (2) the admission was as to a "matter within the scope of the agent's authority;" (3) the admission "constituted a part of the res gestae of a transaction in which the agent was acting for his principal, and serve to characterize that transaction."

We shall divide the questions concerning the admission of the "service letter" under the following heads: (1) Is the fact that the statements were hearsay as far as Superintendent Van Housen was concerned a valid objection? (2) Is the fact that these statements did not constitute a part of the res gestae of the collision between the first and second sections of train 81 a valid objection? (3) Is the fact that these statements were not made at the time Mr. Smith, the trainmaster, told Guernsey that he was discharged, a valid objection? (4) Are the statements made by Van Housen incompetent on the ground that while he had a right to discharge Guernsey and state in the service certificate that he was discharged, still he did not have a right to go further and state the facts constituting the specific reasons for Guernsey's discharge? (5) Is it a valid objection to the statements contained in the service letter that they constitute the "opinion, conclusion, conjecture or deduction" of Superintendent Van Housen?

(1) That this admission is not objectionable because the facts contained therein are hearsay as far as Van Housen is concerned, see Wigmore, sec. 1053; Kitchen v. Robins, 29 Ga. 713, 716; Bishop of Meath v. Marquess of Winchester, 3 Bing. N. C. N. 183, 203; Bulley v. Bulley, L. R., 9 Ch. App. 739, 747, 751; Wasey v. Insurance Co., 126 Mich. 119, 85 N.W. 459; Sparr v. Wellman, 11 Mo. 230, 234; Reed v. McCord, 160 N.Y. 330, 54 N.E. 737; Thayer's Cases, Ev., p. 112; Miller v. Denman, 8 Yearg. 237; Shaddock v. Clifton, 22 Wis. 114 (2 & 3). We have already discussed the res gestae of this transaction and trust have established that it is entirely separate from the res gestae of the collision. The fact that Mr. Smith, the trainmaster, told Mr. Guernsey on the night of February 5th that he was discharged, may lead to the conclusion that the service letter was no part of the res gestae of the discharge. However that may be, we think the matter wholly immaterial as to whether the giving of the service letter is regarded as a part of the discharge or not, it is admitted that in itself it was an authorized act, and therefore has a res gestae of its own. Res gestae as heretofore set forth simply means accompanying an authorized act, and counsel admits that the service letter was authorized. This we think is conclusive on the question of the res gestae. (4) Counsel argues that Superintendent Van Housen had a right to go so far in the service certificate, but had no right to go as far as he actually went. A sufficient answer, we submit, to this contention is that there was a strong showing of authority for the issuing of the service letter, and in the absence of any contradiction of that showing appellant is bound by the record made on the trial. It was admitted on the trial that Van Housen was the superintendent of the defendant for the division covered by the accident; it was shown that it was the custom, and the strong inference is that it was the contract right of the discharged employee Guernsey to receive a "service letter" upon leaving the defendant. (5) Counsel objects to the statements in the service letter on the ground that they constitute the opinion, the conclusion or conjecture of the superintendent. We submit that this phase of the question is satisfactorily disposed of by the authorities we have cited under the "hearsay" objection to the service letter. It was there shown that the fact that the admissions were based upon hearsay is no objection.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

The plaintiff brought this action to recover damages for the death of her husband, alleged to have been caused by the defendant's negligence.

It is alleged in the complaint that the defendant negligently ran and operated "a certain train known as 'section No 2' of train No. 81 at a high and dangerous rate of speed into and against a certain train known as the 'first section' of train No. 81, and in disregard of the schedule which it had theretofore established for the running of trains," whereby the deceased, who was the conductor of the first section, was killed. The defendant denied the alleged negligence, and pleaded contributory negligence and negligence of fellow-servants. The two sections were made up at Black Rock, Utah. W. C. Guernsey was the conductor of the second section. The crews of both sections received orders from the train dispatcher to leave Black Rock and run to Caliente, Nevada. The first section left at about 9:55 p. m. of the 4th day of February. The second section left about thirty or forty minutes later. No further orders were received from the dispatcher by either crew. The collision occurred about one and one-quarter miles east of the east switch at or near Beryl, Utah, on February 5th, at about 4:25 a. m., as testified to by some witnesses, or at 4:30 or between 4:28 and 4:29, as testified to by others. The station there consisted of only a switch track and a water tank. The distance between the east and west switch is three thousand feet. Freight train No. 81 was scheduled on the time card to leave Beryl at 4:30 a. m. The last stopping place was at Lund, about twenty miles east of Beryl. The second section at Lund overtook the first section. The first section left Lund at 3:55 a. m., about twenty minutes late. The second section left about seventeen or twenty minutes thereafter. The speed of the first section running from Lund to Beryl was from fifteen to twenty miles an hour until within about two and one-half miles of the place of the accident, when it slowed down to about five or seven miles an hour, at which speed it was running when the rear end was run into by the second section with such force as to demolish the caboose and three cars ahead of it, and to derail a number of other cars. The engine of the second section, and about ten cars of that section, were also derailed, and a couple of them crushed. The...