Alden v. Grande Ronde Lumber Co.

81 P. 385 | Or. | 1905

Mr. Justice Bean

delivered the opinion of the court.

This is an action to recover damages for the loss of three horses hired by the plaintiff to the defendant to work in its logging camp, and alleged to have been killed or permanently injured by the negligence of its agents and servants. The plaintiff was a witness in his own behalf, and testified that one of the horses was- killed at Qamp No. 2, in charge of one Johnson as foreman, and the other two were injured at Camp No. 1, in charge of Bean; that after the horses were killed or injured he had a conversation with Johnson and Bean- about the matter, and was thereupon asked by his counsel the following question: “You may state whether he (Johnson) told you about it” (meaning the killing of the horse), and over the objection and exception of the defendant he answered that he did. He was then asked: “Now you may state what he told you concerning the matter, and how the horses were killed.” - This question was likewise objected to, but the objection was overruled, and the witness answered: “The horse, ran off a bridge and was killed.” He was then asked: “Now, in the conversation you had with him on the day you went up and found the horse was killed, and on the day afterwards, or a few days afterwards, state whether or not in either one of these conversations he stated to you- what was the cause of the horse being shoved -off the bridge.” An objection was likewise made and overruled to this question, and the witness answered: “Johnson claimed the load was not balanced right. That was his opinion. He was not there. He was there afterwards.” The court, on motion of the defendant, struck out so much of the testimony as referred to Johnson’s opinion, and allowed the remainder of it to stand, and witness was permitted, over defendant’s objection and exception, to answer similar questions as to the. conversation with foreman Bean concerning the injury to the two horses at Camp No. 1, and the way in which such injury occurred. The testimony was followed by evidence tending to show that, if the accident occurred, or the horses were killed or injured in the manner stated by Johnson and Bean,' it was due to the negligence of the. defendant and its servants.

1. The evidence as to the statements of Johnson and Bean to the plaintiff concerning the accidents to the plaintiff’s horses and the manner in which they occurred were not binding on the defendant, or competent as evidence, because they related to past transactions, and were in the nature of mere historical narrative of past occurrences. The admissions or declarations of an agent are sometimes binding on his principal, but it is only when the ' act of the agent will bind the principal, and the representations or statements are made at the time and characterize the act, that they become competent evidence for that purpose: North Pacific Lum. Co. v. Willamette Mill Co. 29 Or. 219 (44 Pac. 286); Wicktorwitz v. Farmers’ Ins. Co. 31 Or. 569 (51 Pac. 75); Hannan v. Greenfield, 36 Or. 97 (58 Pac. 888). The admissions or declarations of an agent of a corporation stand on precisely the same footing as those of an agent of a private individual. "To bind the principal, they must be within the scope of the authority confided to the agent, and must accompany the act or contract which the agent is authorized to do or make”: Angelí and Ames, Corporations (1 ed.), § 309. "The rule which admits admissions ■of an agent in an action against his principal applies only in two cases: (1) Where the scope of the agency is such that the agent is an agent for the purpose of making the particular admission — as, where an attorney, in the course of a trial, makes a solemn admission against the interest of his client. (2) Where the admission is in the form of a declaration made by an agent, while acting within the scope of his agency, and about the business of his principal, concerning such business. In.such a case the declaration made dum fervét opus is a part of the res gestae. It tends to characterize the act which the agent is doing for his principal at the time. It is regarded as a verbal act; and it is admitted on the principle that the whole transaction, and not merely a part of it, ought to appear, including what was said as well as what was done. But where the declaration of the agent relates to his past conduct, or to a past transaction in which he has acted for his principal, so that it is in the nature of a mere historical narrative, it is not admissible to bind his principal, unless the scope of the agency was such that the agent had authority to make the admission for his principal”: Bevis v. Baltimore & O. R. Co. 26 Mo. App. 22. The statements of Johnson and Bean as to the manner in which the horses were injured or killed were therefore not binding upon the defendant.

A contention is made that the error based on the admission of such testimony is not properly before this court, because it is said the bill of exceptions "consists of an extension of the reporter’s shorthand notes of all the testimony and the proceedings of the court up to the time the respondent rested his case in chief,” and decisions of this court are referred to disapproving bills of exceptions so made up, and refusing to examine them in search of alleged errors in the admission or rejection of testimony. But counsel is mistaken as to the manner in which the bill of exceptions in this case is made up. It is, in substance, in conformity with the rules of practice approved by this court, and has attached to it and made a part thereof a transcript of the stenographer’s notes.of the trial, which was deemed essential because of the alleged error based on the overruling of defendant’s motion for nonsuit.

2. Exceptions were saved by defendant to nearly, if not quite, all the instructions given by the court to the jury, but we. infer from the brief that the only error relied upon in that connection is the modification of an instruction requested by the defendant, as follows:

“If you find that the owner of said horses hired them to the defendant for the purpose in which said horses were used and driven when they were driven, and that such horses were used and driven only in the way and in the time and the manner contemplated by such hiring, or by a driver agreed upon, and either the death or the injury resulted from the efforts to accomplish only that which the owner contracted for such horses to perform (and without fault or negligence), then you will find for the defendant.”

This instruction was given as requested, except that the court added after the word “perform” in next to the last line the words “and without fault or negligence,” and it is insisted that it was error so to modify the instruction. It is doubtful whether there was any evidence tending to show that the horses, or either of them, at the time of the injury, were being driven by a driver agreed upon between the plaintiff and defendant, or that they were driven and used only in the way and the. manner and at the time contemplated in the contract of hiring; but, however that may be, if they were injured by reason of the fault or negligence of the defendant, it would be responsible, notwithstanding they may have been driven by a driver agreed upon by the parties, or used in the manner and at the time contemplated in the contract. When the plaintiff hired these animals to the defendant for logging purposes, he, of course, assumed all the ordinary risks that are incident to such employment; and if they were killed or injured without the fault or negligence of the defendant or its agents and servants, the plaintiff cannot recover, but if they were killed or injured through the negligence or want of skill or. ordinary caution on the part of the defendant, then it is liable. This, it seems to us, is the legal effect of the instructions as given by the court upon the trial, and they constitute a fair statement of the law of the case.

It follows from these views that the judgment of the court below must be reversed, and it is so ordered. Reversed.