Roux v. Blodgett & Davis Lumber Co.

• Decision Date: 17 February 1893
• Citation: 94 Mich. 607,54 N.W. 492
• Parties: ROUX v. BLODGETT & DAVIS LUMBER CO.
• Court: Michigan Supreme Court

54 N.W. 492

94 Mich. 607

ROUX v. BLODGETT & DAVIS LUMBER CO.

Supreme Court of Michigan

February 17, 1893

Error to circuit court, Menominee county; John W. Stone, Judge.

Action by Noe Roux against the Blodgett & Davis Lumber Company to recover damages for personal injuries. Judgment was entered on a verdict for $6,000, and defendant brings error. Affirmed.

B. J. Brown, (H. O. Fairchild, of counsel,) for appellant.

Sawyer & Waite, (Uhl & Crane, of counsel,) for appellee.

LONG J.

This case was in this court at the April term of 1891, and is reported in 85 Mich. 519, 48 N.W. 1092. On the former trial in the court below the court took the case from the jury on the ground that the plaintiff was guilty of contributory negligence. The case has again been tried, and the plaintiff recovered judgment in the sum of $6,000. Defendant brings the case to this court by writ of error. The facts appearing in the present case are substantially as they appeared in the former record, and are so fully stated in the former opinion that a restatement of them is unnecessary.

It is claimed by defendant's counsel that the court was in error in permitting plaintiff, upon the trial, to prove statements made by Mr. McDougal after the accident occurred. It appears that while a witness for plaintiff was upon the stand, under examination by plaintiff's counsel, he testified that he saw Mr. McDougal standing at the foot of the stairs while they were bringing the plaintiff down, after he was injured. He was asked to state what, if anything, he heard Mr. McDougal say to plaintiff, and responded that he heard Mr. McDougal say, "It is too bad, Noe," speaking to the plaintiff, who said: I know Mr. McDougal, but it is your fault. I told you to fix it last night." And Mr. McDougal said: "I know, put I had too much to do. I could not fix it." This conversation occurred about five minutes after the accident occurred by which the plaintiff was injured, and while the mill hands were removing him from the mill to the carriage, ready to take him home. Defendant's counsel cites many cases to the point that this testimony was incompetent for the reason that the statements were made after the accident occurred and were therefore mere hearsay. The rule is that declarations of an agent or servant do not, in general, bind the principal. To be admissible they must be in the nature of original, and not hearsay, evidence. They must be made, not only during the continuance of the agency, but in regard to the transaction depending at the very time. There are authorities, however, holding that when the statements are made so close upon the time when the act was completed, such statements are a part of the res gestae Whether the statements made by Mr. McDougal in the present case were competent or not, as evidence against the defendant, under these rules, and the cases cited upon either side of the proposition, need not be considered here. At the time this testimony was given, it was objected to by defendant's counsel as incompetent. The court admitted it. If the consideration of the question rested here, it would become important to consider the authorities cited by counsel; but it appears that afterwards and during the trial, the testimony of Mr. McDougal, taken upon the former trial, was produced and read on the part of defendant, by consent of both parties, to the effect that the plaintiff gave him no notice of the broken covering previous to the accident. Mr. McDougal also testified that he remembered when the plaintiff was taken downstairs, but that he did not stand at the foot of the stairs when the plaintiff was taken down, and had no conversation with plaintiff in regard to his agreeing to fix the covering over the gear wheels. He testified fully upon that subject, and claimed that he was not there at all, but went on ahead to get the carriage ready to take plaintiff home. He testified further: "I did not have any conversation with Mr. Roux while he was fast in the gearing. He spoke to me several times. When he saw me coming first, he hollered out to me to send for the priest; and while they were getting him out I think he repeated that as much as five or six times, and I promised to do so. That is all the conversation I can remember. He said nothing to me about it being my fault, while he stood there with his leg in the gearing wheel. Question. Didn't you say anything to him, that you admitted to him that it was your fault, and that you ought to have had it fixed? Answer. No sir." Mr. McDougal testified further that about a year before the trial he did have a talk with the plaintiff, and told him that he did not know of this board being off, when the plaintiff said to him that he intended to tell him at noon of the day he got hurt that the board was off. It appears from this that the defendant on the trial introduced independent evidence upon its part, from the only witness who could testify in that respect, that the plaintiff had given him on notice previous to the accident of the broken condition of this covering, and also expressly denied the declarations imputed to Mr. McDougal, defendant's foreman, by the testimony of plaintiff and another witness. This testimony being introduced by the defendant for the purpose of impeaching the testimony of plaintiff and his witnesses, whatever error-if it was error-there might have been in permitting the plaintiff and his witnesses to testify to this conversation with McDougal after the accident occurred was cured by defendant, in introducing in evidence the deposition of Mr. McDougal himself, and showing by such deposition the denial made by Mr. McDougal of any and all conversation with plaintiff relative to his agreement to fix the covering over the wheels. If McDougal's deposition had been read in evidence by defendant first, it certainly would have been competent for the plaintiff and his witnesses to have testified upon that subject thereafter, or if Mr. McDougal had been placed upon the witness stand, and upon cross-examination asked if he did not make these statements claimed by plaintiff to have been made by him at the foot of the stairs, and had denied them, it would then have been competent for the plaintiff to introduce testimony showing that he did so state. The whole matter, then, becomes a question simply of the order of proof; and we think it is well ruled that the trial court, under the circumstances here, committed no error in permitting testimony to stand which is afterwards made competent by the introduction of other evidence. Rounsavell v. Pease, 45 Wis. 506. It was held in the above case that where, in an action by the principal, defendants were improperly permitted to introduce evidence of such declarations by the agent, but afterwards the agent was called as a witness in plaintiff's behalf, and, after testifying to the facts of the transaction in question, denied that he had ever made the statements imputed to him, that the error in admitting the impeaching evidence was cured. This principle was again approved in Stone v. Sleigh Co., 70 Wis. 585, 36 N.W. 248. See, also, Mawich v. Elsey, 47 Mich. 10, 8 N.W. 587, and 10 N.W. 57; Roberts v. Pepple, 55 Mich. 367, 21 N.W. 319.

It is claimed that the court was in error in instructing the jury in that portion of its charge, as follows: "Did the performance of plaintiff's duties require him to go into the vicinity of this machinery, and was he in the exercise of ordinary care in so going? Was it necessary that he should act promptly, or with rapidity, and did the performance of his duties so absorb his attention that he might not always carry in mind the danger lying there? If the plaintiff's claim in this case is the true one,-and the court leaves it to you to say whether it is or not,-then I advise you that it is a case where two reasonable and different views might be taken, and two men...