Southern Express Co. v. Fox & Logan

• Decision Date: 19 March 1909
• Citation: Southern Express Co. v. Fox & Logan, 131 Ky. 257, 117 S.W. 270 (Ky. Ct. App. 1909)
• Parties: SOUTHERN EXPRESS CO. v. FOX & LOGAN.
• Court: Kentucky Court of Appeals

117 S.W. 270

131 Ky. 257

SOUTHERN EXPRESS CO. v. FOX & LOGAN.

Court of Appeals of Kentucky.

March 19, 1909

"To be officially reported."

Extended opinion.

For former opinion, see115 S.W. 184.

HOBSON J.

1.A stall is reasonably safe when it is such as a person of ordinary prudence would provide.The defendant may show, by persons qualified to know, that the stall in question was put up in the usual and customary method of erecting stalls for the shipment of horses, and that it was reasonably safe for that purpose.

2.The defendant offered to prove by J. W. Bondurant that, after the horses had been at Memphis some days, he met Benyon, who was then in charge of the horses, and Benyon then told him they were all right.It is insisted that this testimony of Bondurant was binding upon the plaintiffs as an admission and was competent for this purpose as substantive evidence.In Greenleaf on Evidence,§ 113, the rule is thus stated "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 the agency in regard to a transaction then depending, et dum fervet opus.It is because it is a verbal act, and part of the res gestæ, that it is admissible at all, and therefore it is not necessary to call the agent himself to prove it; but, wherever what he did is admissible in evidence, then it is competent to prove what he said about the act while he was doing it, and it follows that, where his right to act in the particular matter in question has ceased, the principal can no longer be affected by his declarations, they being merely hearsay."

The same rule has often been announced by this court.Thus, in Reed v. Brooks,13 Ky. 127, the court said "The confessions of an agent cannot be admitted as proof either of his agency or of acts done by him as agent.Where what an agent says is part of the...