Turner v. Turner

• Decision Date: 12 May 1905
• Citation: 50 S.E. 969,123 Ga. 5
• Parties: TURNER v. TURNER.
• Court: Georgia Supreme Court

50 S.E. 969

123 Ga. 5

TURNER v. TURNER.

Supreme Court of Georgia

May 12, 1905

Syllabus by the Court.

1. As a general rule, the declarations of an agent are not admissible against his principal, unless they are made as a part of the transaction being carried on in behalf of the principal, and constitute a part of the res gestae.

2. Declarations of an agent in the nature of entries made in the regular course of the business of the principal are, after the death of the agent, admissible against the principal in some cases not strictly within the rule above referred to.

3. Declarations of a person, since deceased, against his interest, and not made with a view to pending litigation, are admissible in evidence in any case.

4. The provisions of Civ. Code 1895, § 3034, that the declarations of an agent "as to the business transacted by him are not admissible against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent be dead," are merely declaratory of the law existing at the time the Code was adopted. The words "or else the agent be dead," refer to entries made by an agent, since deceased, in the regular course of the business of his principal, or declarations made by a person since deceased, against his interest, or other instances where, under the established rules of evidence, the declarations of a deceased person might be admitted in evidence.

5. Declarations or entries made by one, since deceased, against his interest, when admitted, are evidence as to any fact stated therein which was within his knowledge, or which it was his duty to know.

6. The mere fact that an agent employed to negotiate a loan is an attorney at law, and in securing the loan performs duties ordinarily performed by an attorney, will not make the relation existing between the borrower and such agent that of attorney and client, so as to render the agent an incompetent witness against the borrower as to matters which came to his knowledge pending the negotiation of the loan.

7. An allegation of agency may be established by evidence showing the existence of the relation of principal and agent in any of the methods recognized by law as establishing this relation.

8. There was evidence authorizing the verdict, and no sufficient reason has been shown for reversing the judgment refusing a new trial.

Error from Superior Court, Floyd County; W. M. Henry, Judge.

Action by S. F. Turner against J. D. Turner and Susie B. Turner. On the death of Susie B. Turner her administrator was made a party. Verdict for plaintiff, and defendant brings error. Affirmed.

M. B. Eubanks, for plaintiff in error.

Dean & Dean, for defendant in error.

COBB J.

1-4. It is an ancient and well-established rule of law that the declarations of an agent are not admissible against his principal, unless they were made at a time when the agent was engaged in some transaction within the scope of his agency, and was acting in behalf of his principal. To state it otherwise, the declaration must be one accompanying an act within the scope of the agency, and so nearly connected therewith as to become a part of the res gestae. Story on Ag. (9th Ed.) § 134 et seq.; 1 Gr. Ev. (16th Ed.) § 184c; 2 Evans' Pothier on Obligations (3d Am. Ed.) p. 245; Chamberlayne's Best on Ev. (Internat. Ed.) p. 487; 1 Enc.Ev. 538 et seq. Such was the recognized rule in this state at the time the Code of 1863 was adopted. Griffin v. Railroad Co., 26 Ga. 111; Sweet Water Mfg. Co. v. Glover, 29 Ga. 399; Atlanta Railroad Co. v. Hodnett, Id. 461.

There is also an equally well-established rule that entries made by one whose duty it is to make them in the regular course of business are admissible after his death, and this rule applies in the case of an agent who makes such entries in the course of the business of his principal. 1 Gr. Ev. (16th Ed.) § 120a; Starkie on Ev. (10th Am. Ed.) p. 492 et seq.; 4 Enc.Ev. 103, 104. Such entries may in many cases be a part of the res gestae; but there are also instances where such would not be the case, but after the death of the agent who made such entries they are nevertheless admissible.

There is still another ancient and well-established rule, that declarations against interest by one since deceased are admissible in evidence in a controversy between third persons. 1 Gr. Ev. (16th Ed.) § 147 et seq.; 9 Am. & Eng Enc. L. (2d Ed.) p. 8; 4 Enc.Ev. p. 87; Starkie on Ev. (10th Am. Ed.) p. 474; Chamberlayne's Best on Ev. (Internat. Ed.) p. 453. This rule is set forth in the Code in the following language: "The declarations and entries of a person, since deceased, against his interest, and not made with a view to pending litigation, are admissible in evidence in any case." Civ. Code 1895, § 5181. In that section of the Code which provides for the admission in evidence of books of account the rule that the entries of an agent, made in the course of the business, are admissible in evidence after his death, is recognized; it being there provided that the person offering the books of account must show either that he kept no clerk, or else that the clerk is dead or inaccessible, or incompetent as a witness. Civ. Code 1895, § 5182. The Code also declares that the "admissions of an agent or attorney in fact, during the existence and in pursuance of his power, are evidence against the principal." Civ. Code 1895,§ 5192. In another section it is declared: "The agent is a competent witness for or against his principal. His interest goes to his credit. The declarations of the agent as to the business transacted by him are not admissible against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent be dead." Civ. Code 1895, § 3034. If this section be isolated, and no regard paid to other provisions of the Code on the subject of the admission of evidence, and no attention paid to the ancient and well-established rules of law above referred to, which were of force in this state at the time of the adoption of the first Code, the concluding words of the section might be held to mean that the mere fact that the agent was dead would be sufficient to admit in evidence against the principal any declaration made by the agent, without reference to the time or place at which or the circumstances under which the declaration was made. Such a rule would have for its foundation neither principle nor precedent. When we look at other provisions of the Code in reference to the admissibility of evidence, and at what were the well-established rules of evidence at the time the Code was adopted, we are forced to the conclusion that no such radical change in the law was intended as such a construction would place upon this section of the Code. It is in this state a well-established rule of Code construction that a given section will be presumed to be simply a declaration of existing law, unless the language of the section is such as to clearly indicate an intention to establish a new rule. Mitchell v. Ry. Co., 111 Ga. 760, 768, 36 S.E. 971, 51 L.R.A. 622; Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 205, 37 S.E. 485, 81 Am.St.Rep. 28. Of course, the words of a section must not be held to be meaningless. The courts have no right by construction to eliminate words which have meaning simply because the meaning does not agree with the opinion of the court as to what should be the law. Can the words, "or else the agent be dead," be given a meaning, and at the same time make the section of the Code merely declaratory of existing law? In our opinion, this can be done. The first portion of the last sentence of the section was intended to declare the well-settled rule above referred to that the declarations of an agent, to be admissible, must be a part of the res gestae. The concluding words of the sentence, "or else the agent be dead," are to be interpreted in the light of those provisions of the law where the declarations of deceased persons are admitted in evidence; that is, if under established rules the declaration of a deceased person would be admissible in evidence, then under the Code such declaration would be none the less admissible because the deceased was occupying the relation of an agent at the time the declaration was made. If the declaration was one made by an entry in the regular...