48 So. 853 | Ala. | 1909
The general rule is that the declaration of one made while in the actual possession and control of personal property, and explanatory thereof, is admissible in evidence, and this upon the idea that it is a part of the res gestse of such possession. — May-field’s Digest, vol. 8, p. 453, § 355. We think, however, when, as in the present case, the person Avhose declaration is sought to be proven is himself the ivitness testifying, and not being sought for purpose of impeachment, such evidence would be of little probative force, since the sworn testimony of the witness as to the facts would be better evidence than his unsworn declaration. The majority of the court are of the opinion, and so hold, that under the facts of this case the declaration of Hood, admitted in evidence, as to the ownership of the team, made by him while in the possession and control of the same as a driver, does not come within the principle above stated as to declarations, made'by one in possession of property, explanatory of such possession, and that in the admission of this evidence the court committed reversible error. The writer, with whom McClellan, J., concurs- on this point, is of the opinion that if the declaration of one in possession, explanatory of such possession, be admissible in evidence upon the theory of res gestse of the possession, which seems to be the universal rule, such declaration explanatory of possession would not be rendered incompetent because it might tend to show ownership of the property in a third' party. •
The plaintiff was permitted to prove by his witness Bobbins, against the objection of the defendant, that a
There was evidence tending to show that the driver of the ox team was an experienced driver, and also evidence showing how he was managing the team at the time of the accident. On this evidence it was competent for the witness Norris, who was shown to be an experienced and expert driver of ox teams, to give his opinion as to whether the manner in which the team was driven was proper.
Charge 2, requested by the defendant, was rendered bad in the use of the disjunctive conjunction “or,” and for this reason, if no other, was properly refused. By this charge the jury were instructed to find for the de
The third charge asked by the defendant is subject to the criticism that it pretermits the competency of the driver of the ox team. He might have been a prudent driver, and yet not competent to manage a team of the character of the one in question, and, if not, the defendant would be liable for an injury done another caused by the incompetency of the driver.
The fourth and fifth charges are each faulty in pretermitting an absence of fault on the part of the driver in the “sudden fright” of the oxen, and for this reason, if no other, these charges were properly refused.
The sixth charge limits all preventive efforts to avoid the injury to the time of the accident, when it might have been avoided by taking precautionary measures before the time of the accident.
There was no evidence that the team was the property of Oohn & Goldberg, but the property of Oohn & Goldberg Lumber Company, and hence charge 7 was properly refused.
The twelfth charge requested by defendant ivas argumentative, and there was no error in refusing it.
In accordance with the holding of the majority of the court, for the error committed in the admission of the evidence of the witness Hood, indicated above, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
In behalf of the majority of the court, holding that the witness Hood should not have been allowed to testify that he had said, shortly after the accident, that the wagon and team belonged to the defendants, I desire to say: First. That the remark was not
It is a settled principle in the law of agency that, while the declarations of an agent who is admitted or proved to be such, may be admitted, if made in conducting a transaction within the scope of his agency, for the purpose of throwing light .upon the transaction itself, it is equally true that the fact of agency cannot be proved by the declarations of the agent. — 1 Elliott on Ev. § 252; 2 Elliott on Ex. §§ 1631 (note 21), 1636; Whiting & Co. v. Lake, 91 Pa. 349; First Nat. Bank of Tuscaloosa v. Leland, 122 Ala. 289, 295, 296, 25 South. 195; Owensboro Wagon Co. v. Bliss et al., 132 Ala. 254, 260, 31 South. 81, 90 Am. St. Rep. 907; Mobile & Montgomery R. v. Ashcraft, 48 Ala. 15, 30. While the acts and declara
In the case now before the court, the witness whose declarations were sought to be introduced was on the stand; and even if he possessed any competent knowledge of the ownership, it should have been proved by his testimony under oath, and not by his stating what he had said before. The.cases in which expressions have been used which, taken from their context, may seem to be in conflict with the foregoing cases, are easily explainable on other principles. For instance, the case of Daffron v. Crump, 69 Ala. 77, was a trial of the right of property in a yoke of oxen which had been levied on as the property of said Daffron; and a claim was interposed by his wife, setting up that the property was hers. There was no question about the fact that said defend
Another fact may be noticed towit, that in all tbe cases where this testimony was admitted tbe point at issue was whether tbe party making tbe declaration was claiming the property himself, or, disclaiming any ownership, acknowledged that be held for another. In none of them was a party, who was acknowledged by both parties to have interest in' the property, allowed, by bis mere declarations, to show that tbe title to tbe property was in either one or the other, simply because be bad been employed to transport it from one point to another. Tbe fact is that a servant is not in tbe possession of personal property intrusted to him, but that bis possession is tbe possession of bis master. “A servant’s declarations regarding tbe rights or liabilities of tbe master are incompetent, in the absence of some proof of express agency and evidence that the statements were within the line of tbe declarant’s duty and made while be was in good faith seeking to discharge it.” — 16 Cyc. 1030. It is inconceivable that any court should declare that a mere servant, employed to drive a team, could, by bis mere