*1 P.2d 971 cases). (two al. YOST HAYWARD v. et
Nos, 7789-7792.
Supreme Court of Idaho.
April 3, 1952. April 29, 1952.
Rehearing Denied *4 Wander, Nampa, Ewing
W. W. & Smith Caldwell, ap- Müller, and Meek & all pellants. *5 respondents. Groome, Caldwell, for
Cleve
é21 THOMAS, Justice.
There companion growing are two cases California; out Lincoln, of an accident at Joseph Hayward, one action Jr., a B. minor, by through guardian li- his ad tem, Joseph Hayward, B. brought an action to damages recover $40,000 in the sum of personal injuries for alleged sustained and to have been occasioned by negligence the personally agent and as servant of Livestock Company, partnership; a other action is the father and mother minor, $20,000 general recover damages injuries son, to their minor hospital for medical expense, $605 arising out of the same facts. The two cases, pursuant stipulation, order consolidated for trial brought and were by stipulation this court and order on a transcript. single The members of at the Yost, time of accident were R. L. George Smeed; Slote and W. Smeed John died and the trustees of his estate were parties actions; to the before the came died, case to trial Slote and the by stipulation Executrix of his was will party substituted order as defendant place par- stead. As to the other defendant, ties granted a nonsuit was at plaintiffs’ conclusion of evidence. verdict, Lincoln, nonsuit, for motion for directed Cali- accident occurred notwithstanding fornia, 31, 1949, Joseph judgment B. motion for when May on nearly verdict, ground Hayward, Jr., age of rea- then and for seven, son, among others, home the evidence does going school to his was from recess; upon negligence at the noon it occurred establish the defendant public grounds; highway contributory negli- Speer, near the school does establish but crossing highway Joseph Hayward, young boy gence was evi- B. Jr. operated by respects many car material be was struck dence in cannot reconciled; Speer; attempting without motion nonsuit and defendant for trial, verdict, a motion detail as evidence adduced at directed well may sharp verdict, judgment conflict ad- notwithstanding stated there traveling, speed as to the car mits the truth adversaries’ may 35 miles ranging from 10 fact which every conflict miles inference Likewise, an v. hour in a restricted zone. therefrom. Stowers legitimately drawn Idaho, Co., P.2d boy Ry. there is conflict whether the Union Pacific pedestrian lane, 312, 111 1041; Graves, within the and as to 62 Idaho wheth- Stearns paid er or not he condi- attention P.2d 822. *7 attempted the highway tion of before he consistently held This court has but, the cross without further mention of material facts the that where evidence on respects, evidence in various suffice these undisputed facts inis conflict where on or say negligence that contribu- as to and may differ men and fair-minded reasonable presents negligence many sharp con- tory conclusions to inferences and the tp flicts. therefrom, different con drawn or where the a verdict for jury returned might reasonably be reached clusions $10,000 verdict the of minor in sum question negligence minds, of different the $3,605, the of parents in sum for the negligence, as well contributory ap-' were rendered. thereon judgments cause, of fact to be sub proximate is one judgments and both peals were taken from jury question mitted to the and not a of law denying respective non- orders from the the Union Pacific for court. Stowers v. verdict, judgment suit, notwith- directed Graves, Ry. Co., supra; supra. Stearns verdict, mistrial, and .trial.
standing the new denying appellants’ The court did not err in motion for nonsuit for directed verdict were assignments of error made Many judgment notwithstanding for the ver order will consider the set which we against Speer. dict as forth below. Appellants urge urged by appellants the
It the court erred appellants’ respondents’ in the admission of denying court erred in motion Exhibit 'by Appellants improper re- prepared assign map The exhibit is a as error “L”. California, Lincoln, for city arguments by marks and counsel re- engineer the of engineer spondents the jury. of The asserted re- and made from field notes the and at marks the court accident were not taken down day taken on the the reporter accident; map transcript de- appear the the the do scene by the of the proceedings as found than in picted physical facts otherwise the accident vicinity where motion for into the record engineer mistrial dictated in the depicted retired; the loca- after min- occurred; map jury had the court also appearing respond- utes marks show that counsel for skid after distance of tion and completed arguments delineated ents his closing were and which pavement on the present jury, objected appellants was not engineer counsel for map; on the argument respondents and had no counsel the accident to. at the time mistrial, and moved the court which the skid marks for a knowledge that personal denied; in fact made motion was court admon- that the map were upon the depicted However, jury the ished the Speer. jury as to facts ánd the Mr. car of by the verdict; him' to the retired to consider its the court called who police, chief of occurred, minute further accident shows thereafter where general area in the jury set forth absence the defendants instructions general him gave mistrial, appeared to moved court for a they which was facts as physical all the ; (Tr. entry 1333) denied minute skid marks were f. does him that him, told arguments Speer; reflect what remarks or Mr. car of by the those objected scope counsel were to or that Mr. in- testified also policeman objection. the accident that after soon him formed maps marks. Such skid those question For a misconduct admitted competent counsel to be considered on appeal, the rec supplying a better understand- purpose Of sufficiently ord must set out the matters objects location of in- the relative ing of relating thereto court is limited to litigation, are received volved questions properly a review of such as are trial court discretion in the (cid:127) raised, preserved and submitted suffi- illustration, aid the to better purpose of *8 C.J.S., Appeal 4 Error, cient record. for the was laid foundation
jury. Proper 1167, 1206, 1660, pp. The 1704. case of §§ exhibit, and its admis- admission of City Falls, Idaho v. 61 Stewart Idaho v. Kleinschmidt not was erroneous. sion 697, upon relied 471, by P.2d appel- 103 362; 185, Pap- P.2d 30 Scribner, Idaho 54 harmony with lants, sup- out of 'but 557, 1064; is not 149 P. Weber, Idaho 27 v. esh 910, proposition; case, in 1114,p. C.J.S., general 32 ports this 22 Sec. also see C.J. here, presented there was in the Evidence, but 730. § 424 825; Fisher, 484, transcript Co. 169 37 P.2d
reporter’s sufficient record v. Okl. objections Horwitz, 201, City thereto 3 counsel and Tulsa v. 151 Okl. remarks of 841; thereon, ruling Phillips to invoke a & P.2d v. American Car ruling 810; Foundry Co., Mo.App., 287 S.W. court. Hughes & Blankenship M. v. A. Paint by objection the remarks The 970; Co., Mo.App. 483, 154 135 Glass S.W. counsel, appeal, on made available to be 463, Mowry Norman, 223 122 v. Mo. S.W. time re made at the should have been 724; 140, Price, 84 S.W. State v. 186 Mo. Ry.M. Co. v. marks were made. Ohio & Co., 920; Metropolitan Ry. Feary v. Street 428; Sy 100, Wrape, Ind.App. 30 N.E. 4 452; Whyte, 75,Mo. Norris 162 62 v. S.W. Co., Ry. 208 Minn. v. Northern mons Great 1037; Barkley, 20, Ellis 158 Mo. v. 57 S.W. Iron 240, 303; v. Oliver 293 Eilola N.W. 658, 142 203. 160Iowa N.W. 77, Co., 275 408. N.W. 201 Minn. Mining objection ordinarily an This means that record are bound Parties on of review purpose comes for the too late there is in district court and they make after the time appeal, the first made if for use nothing practice justify our in has been sub or the cause jury retired has facts which should to establish of affidavits them, the close after mitted or there, of record but have been trial for new arguments, on motion 579, 578, 59 Carey Lafferty, Idaho v. not. been ren has verdict otherwise, after the 86 168. P.2d Error, 297 Appeal and C.J.S., § dered. presented record On (b), p. 594. with reference asserted error court appellants im urged by It is counsel was improper remarks of jury proper counsel before remarks by this court. for review preserved are preserved for consideration and are appellants verdict The claim appeal remarks where such available jury return- each case excessive. was at brought into the record affidavits are $10,000 injuries to ed a verdict of trial, as was a motion for new tached to $3,605 par- boy; and a verdict of Improper here. remarks counsel done hospital and ents, included $605 which jury arguments are not closing other medical doctor bills care. where ground for reversal available years age near seven brought boy into the record remarks Following the ac- the accident. support time of executed by affidavits only hospitalized boy period' for a Duncan Vance cident the trial. new motion for intermittently, 290; weeks, and was 389, six Co., P.2d some 191 Okl. Drilling a doctor several McAbee, under care of Co. v. Okl. Oil Westgate fully was not re- 1150; Storage thereafter and & months Transfer 74 P.2d Enid *9 partial type and even of seizures time injuries at from the covered Jacksonian paralysis types. of certain trial. quite boy was at- injury At the of boy been time injuries has
Since tending average, as- and his upset when school work easily becomes nervous and progress he no 'become but has little or it has since others and sociating with play parents with and have found nec- in school his it children to for other difficult him in and essary him. to aid his work home cooperate with his in an effort teachers in- both suffered external boy The improve power to remember retain and his body and his injuries in about ternal things in taught which had school. he been shock, severe system, and suffered nervous possible' damage The extent of future concussions, the skull of fracture cerebral of thereon brain because the scar tissue parie- left of the from the center extending predictable was not at thé time anteriorally tal downward bone trial; injury perma- the results of his base at the temporal-parietal suter and nent. scalp; he skull, lacerations of multiple abra- boy also contusions sufferéd a life has expectancy of 57.22 hemorrhage years, is, intro-abdominal causing expected sions he be would to live weakness; generalized in age which resulted to be sixty-five years. left side deep on the there was a hole parents may maintain an hospi- head, to the first taken
his
when
injury
action for the
aof minor child. Sec.
critical
in
tal
and was
was unconscious
he
5-310,
Code;
Idaho
every
such action
condition;
contin-
injury
has
since
he
may
damages
given
as under all the cir
has not
headache
ually
with
suffered
cumstances
may
just.
case
Sec.
controlled;
cooperative or easily
been
5-311, Idaho Code.
which
Elements
enter
testimony
respects
is
medical
some
into the determination of such damages
jury.
conflict,
conflicts are for the
but such
include contributions
parents
which the
testimony
reflex-
is medical
that his
There
reasonably
might
expected
have
to receive
he
equal, and that
hyper-active
es
but
earnings
from the
of such
child until
minor
position
his
without wa-
maintain
cannot
majority,
his
for which
precise
there is no
damage
has
vering, and
residual
he
measure,
Moore,
Richmond v.
Cal.App.
can-
permanent and it
which is rather
brain
173,
681, as
284 P.
well as the loss of
long
certainty
how
be stated with
comfort,
protection,
society
companion
testi-
There
medical
injury may last.
ship.
Bowman,
Checketts
70 Idaho
later devel-
may
effect
he
mony to the
The amount appears such that matter excess personal injuries and allowed the child for suggest or the jury law amount is such as to primarily for parents also to presence passion first blush the disturb will not this court determine prejudice part jury on the and we ap clearly except where such verdicts *10 say, carefully cannot examining the after its discre pears abused that the trial court evidence, case, and under the facts in this 50, 225 Elkins, Idaho v. 71 tion. Koch that either verdict is that excessive or the con appellants raised The P.2d 457. jury preju was by passion motivated excessive verdicts tention that dice in case; returning the verdict in either case in each by new trial their motions for or that t'he trial court abused its discre for new motions such the trial court denied tion in refusing to set aside either verdict were not verdicts that the trial and held grant Taylor, a new ’by court trial. Garrett v. the trial excessive; ruling such supra; Bowman, supra; will Checketts v. Bates court and in this weight entitled v. Carnival, Bros. abuse of Siebrand Circus & 71 in the absence aside not be set 318, supra. Idaho 231 P.2d Elkins, 747. Koch v. discretion. dam assignment The determining the amount of error
In
with ref
injuries erence
personal
giving
awarded for
Instruction No.
ages to be
38
refusing
give
should consider
requested
the court
two
jury
instructions
they
af
appellants
as
conditions
economic
was not
existing
discussed either
power of
purchasing
in the brief or in
arguments,
fect
the value
oral
nor
487,
Taylor,
69 Idaho
were there
money.
v.
authorities
support
Garrett
cited in
Burley,
City
386;
v.
assignment.
Hooten
of such
appellant
210 P.2d
Where
presents
369,
neither
arguments
With of action objection, Subsequently, Hay- over Mrs. defendants, by parents against the it the permitted testify Speer ward that prejudicial give error court to after told her about an hour the accident of portion Instruction No. 16 which that way Gridley, was on that he his Califor- may, jury that in its award instructed nia; market, attend a livestock and that parents, take into consideration the to the working Valley he was for Live- worry by and suffered distress mental Company, buying Commission stock and injuries by reason of inflicted parents recep- At time selling livestock. of the child. upon their there was this evidence no tion tend record which would to establish remaining assignment errors are Speer relationship admissibility between relate to interrelated partnership except the evidence with ref- sufficiency certain evidence cards. signature to the over erence respondents, and admitted offered .plain- ; particular evi- Sorenson, further reference to this a witness er One dis- Speer dence will be tiffs, that sold livestock under cross-examination testified opin- again point in this Livestock Auction cussed at another through the Roseville ion; California, Yost, Roseville, operated partners, there- Mr. one of the Yard at after witness, .partnership certain cancelled testified that the honored and identified $24,000 by Speer purchase the drafts in excess drawn aggregating checks livestock, Live- and that drawn on of the Roseville the'checks on the account drawn Speer Bank, Speer Yard, payable the Roseville payable to made Auction stock Yost, partners, by them, for and Yost were de- Speer one of the endorsed posited Valley Livestock in The Boise Com- through the Roseville Livestock cattle sold Company’s account; Yard, period extending mission covering a he further tes- Auction only tified partner- that the benefit four months before within to the for some accident; ship these checks from such when transactions arose two weeks of the. objection of cattle through ring evidence over were sold were received in partnership partner- the en- checks bore which in the the defendants. These resulted ship Speer receiving commission; Yost he also testi- of either dorsement Valley Com- fied that there was but 'Commission one account in Boise Livestock cattle, did, deposited in The Boise bank for all who pany, bought Company partnership sepa- ac- but Commission maintained Livestock police books; chief accounts in Thereafter its count. rate California, municipality account, Lincoln, guaranteed each individual his own occurred, testified on partners accident and that each of the three could wherein examination, objection, that arrange over to draw drafts on same ac- direct (him shortly accident purchase cattle, after the charged count to Speer told and were investigation, making he was any while a commission as others were for sales Valley Live- for The Boise he worked ring. through the Company; the admission stock Speer, direct examination was not error; assigned as was not this evidence had statements he questioned as po- the chief of upon cross-examination Hayward or to the either to Mrs. in evidence introduced lice the defendants any relationship police, or as to he chief of plaintiffs, Defendants’ objection *12 over partnership or with reference had with 2, accident re- was the No. which Exhibit occupation purpose trip or the of his soon after the ac- the officer by port made to California. response Speer, cident, which it is the contention of First among things other that stated questions, testimony Hay appellants that the of Mrs. by employed Live- was he objection, ward, over buy- admitted with a refer- Company as cattle stock
429 return to the Speer made now that We will alleged statements ence police; accident, the chief to cross-examination after the hour to her about an cross-examination, under defendants way to Grid he was on his effect that investigation in evidence livestock market introduced ley, attend a California to report police partner of the it chief of wherein working he cattle, employed on face im shows its selling ship, buying buyer. Evi by cattle the reason that a prejudicial for proper and dence elicited on cross-examination is re alleged agent or of an servant declarations garded part testimony presence alleged out of witness, Nulsen, party calling the v. employer Nulsen are not admissible to principal or 407, 509, relationship Cal.App.2d or 3 39 agency evidence master P.2d prove produced rule, by tending the defendant gestae under res or make servant plaintiff’s case out must be alleged declarations of an considered otherwise. plaintiff, with offered presence testimony by of the al Merrill made outside agent are, themselves, Bridge 585, Co., v. & 69 principal incom Missouri Iron leged Or. Murray 439; City 140 P. 35 Cupples Butte, v. prove agency, v. Stan petent 789, 161, party Mont. P. and the 466, 326, 88 field, Idaho, yet 207 P. where who 35 complain offers such evidence cannot by be agency has been established inde position cause corroborates the evidence, taken by as cor the declarations pendent opposite party. Davenport Stratton, v. Light evidence admissible. roborative 232, 4; P.2d Co., 24 149 Pugh Cal.2d Mc- & 52 v. v. Russell ner Lumber Johnston Kean, 556, 349; 820; 162 616, plain 177 Or. P.2d P.2d see also Ennis v. 17 Idaho 126, 1; may tiff Smith, have benefit facts 18 P.2d Bell v. favor 171 Wash. 408; developed him, able to Washam, Ga.App. 63, by 82 60 S.E.2d defendant’s evi dence, are not contradictory which to his 322. C.J.S., Agency, 3 § own statements to the fundamental . no from There was evidence theory C.J.S., Evidence, of the case. 32 might agency be inferred which fact 1046, Furthermore, 1134. p. documen § Hayward Mrs. testified as to at the time by tary introduced party one Speer, prove particular particular the declarations made to her fact or for a purpose, generally weighed may time such declarations were con against party. for or either and it was error the sidered not admissible 32 C.J.S., Evidence, 775, p. 700. court, § While objection, to admit evi over may impeached such evidence or con Stores, Safeway v. 100 Ashley dence. competent tradicted substantial evidence 53; Smith, v. 312, P.2d Ennis Mont. 47 defendant, C.J.S., offered McMaken, Evi Myers Wash., supra; p. 1104; dence, § Sec. 524, 276 167. Am.Jur. Neb. N.W. *13 430 Speer was authorized to 771, in evidence cor- drafts on
915, p.
its admission
draw
plaintiff
Livestock
roborates other evidence of
accortnt,
relationship of Company
First National
tending to establish a
Bank of
Caldwell, Idaho,
ageffcy;
arrange-
to admit in
but that
an
while it was error
such
Speer
personal guarantee
ment was
a
by
evidence
on
the declarations
basis
object
an
with
to
Hayward
to
the time such evidence
further
Mrs.
at
livestock
admitted, yet
industry
error
centralize
and
cattle
pooling
was offered
of
and
harmless,
promote
prejudicial,
sub-
to
by
was not
the business
but
those in-
stantially
gave
introduced dividuals
a guarantee
who
the same
drew
2,
account;
Hackney
that the partnership
Exhibit No.
on
in
did
defendants
401;
400,
participate
profits
losses,
So.
fur- not
in the
Dudley,
v.
113
or the
216 Ala.
any,
testimony,
simply
if
charged
in-
but
was other
a
thermore there
commission
extrajudicial
dependently
such
statement
of the cattle
of
sale
which went
Speer
through
yards
tendency
money
which
estab-
its
and that it had
had
no
relationship.
Olson,
particular
Hiner v.
23
lish such
whatever
account but ar-
890,
227,
Cal.App.2d
ranged
72 P.2d
occasions subject to authoritative control of The Yard. Auction Boise Valley Livestock Commission Com- pany respect Speer to Mrs. of in the details of his work The declarations Rose- the or as to it performed; drawn be Hayward, checks how should the deposited so far as Auction Yard the concerned Livestock record is these ville Valley Live him; Boise aught matters entirely with for in account of the signature appears that Company, the in record he could stock Commission th.e work the wit testimony pleased, of when he seek the rebuttal out select cards and the parties of evidence Locke, pur- some from constituted whom he would make ness preju and no agency, chases of whom relationship he would sell live- and. the admis in stock; committed there is no in was evidence dicial error record paid expense as to who operation sion thereof. of car; maintenance of his so far as the partnership appellant urged by the It is is liberty concerned he at record was be sufficient the evidence though even that do- principal relationship work in his way, own choose establish not manner method more is suffi- thereof this without which best agent, liability for subject principal to and, suited him most, responsi- only his cient agent; in of such act bility principal the tortious to the would that the decisive contended respect it is achieved; results there nois evidence that Valley or whether inquiry is partnership any or had exercised Company had the Livestock direction, right or supervision control physical details of control right to car; to the-use as neither is there physical de- Speer and movements existed authority or was per- mode the manner to tails exercised direct work. of his formance aught car. From ap- run his how to the partnership in the record pears had he the car which Speer owned Speer’s charge or control over no more presumption no there is driving and Í32 pal’s business, transportation than unless the
means act was done and manner train, in the manner by plane, if or authorized traveling he had directed been principal bus, record facts in the or the result one and there are no- which, fairly princi- inferred intended or from can authorized pal.” any control principal his had or exercised over the
over his work or the details of Comment: management operation his car. principal “A employing another to achieve a result but not nor controlling frequently arises in question cases right having to control the details his party, driving this where as such'as physical of his movements is not re- duties, and his carrying own car out sponsible negligence incidental occurs, to whether there an accident person such while is conducting the princi- person and between exists * * * authorized transaction. In pal principal is that the relationship their movements their control of person in tortious acts of such liable for physical forces, they the relation operation car. of his independent contractors prin- to the Speer was our view that It is cipal. It is only when to the relation- employee an of The Boise ship principal agent there Company; we are Livestock Commission *15 right physical added to control de- sup the evidence satisfied that would tails as to the performance manner of port relationship; Life & Ac Nat’l such a which is characteristic of the relation- Morrison, 29, Tenn. 179 cident Co. Ins. v. ship servant, of master and that the 1, 2; Agency, 501; Mechem 162 S.W.2d person in whose service the act is done liability if there is subject becomes liability Speer it must rest acts tortious physical conduct of the actor.” principal upon' relationship of and exceptions The as stated in Sec. 251 rule agent. believe the set forth We in application have no to-this case. Agency Law of Restatement Institute, 250, is American Law Sec. . growth, development application- The and equitable in cases this nature, sound 250, rule set forth in Sec. Restate applied. be Therein it is and should stated supra, ment of the Agency, Law of is. as follows: supported by the following cases texts:
“Except 251, as stated prin- in Sec. a Courier Co., & Louisville Times Journal cipal- physical is liable for Akers, Ky. 745, harm 350; v. 295 175 S.W.2d negligent physical Knight caused Hawkins, con- v. Tenn.App. 448, 26 173 agent, an who is not servant, 163; duct-of a S.W.2d Nat’l Life & Accident Ins. performance -during the princi- Morrison, supra; Co. v. American Nat’l
433 cases, judgment as to that the both 229, S.W.2d Denke, 95 128 Tex. Co. v. Ins. defendant, Livestock Valley Met v. 409; Henkelmann 370, A.L.R. 107 Company, partnership, 591, Commission a Co., 26 Md. 180 ropolitan Life Ins. hereby is re- Souther, reversed McCarthy 83 N.H. should 418; v. A.2d court directions Young, to the with below 275 manded 445; Westcott v. 29, 137 A. Drees, dismiss; judgment in the 153; case Haykl v. 153, N.E. 175 Mass. Hayward Hay- 38; Joseph and Delma T. Atlas B. 90, App.Div. 286 N.Y.S. 247 ward, wife, Yost, L. Foraker, husband and v. R. et 196 Tulsa v. Ins. Life Co. of defendant, Harry al., remaining as to 323; Chelsea 389, Redfield v. 165 P.2d Okl. 975; Speer, W. remanded 480, is reversed with Co., Kan. 54 P.2d 143 Coal trial; Co., etc., grant 184 Wash. directions Maytag v. new Mitchell Harrington judgment Hay- H. B. 393; Joseph v. D. in the case of 342, 51 P.2d 40, ward, Joseph B. Co., guardian 33 P.2d as ad litem of Mercantile 97 Mont. Lee 1, Hayward, minor, Yost, Wyo. Jr., et Morris, 22 R. L. 553; v. 46 v. Stockwell al., Bailey, hereby 189; Co. v. the same affirmed Russell Products P.2d against 601; Speer. Harry Counihan v. 212, P.2d the defendant W. 162 Okl. 19 602, Co., Cal.App. 118 Lufstufka & Bros. Costs of Boise Livestock Valley 1151; 694; also : 140 A.L.R. See 5 P.2d both cases Company Commission 921; 621; 112 A.L.R. Weslow A.L.R. 117 awarded Boise Livestock to The Co., Life 308 Pa. ski Hancock Ins. v. John Company. 787; Khoury 117, 166, 162 A. 87 A.L.R. Costs of W. in the case of Harry Co., 265 Illuminating Edison Electric v. Joseph Hayward Hay- B. Delma T. 1163; 77, 236, A.L.R. N.E. 60 Mass. 164 wife, Yost, ward et husband and v. R. L. Chemical Kennedy & v. Charcoal Union al., Speer. are Harry W. awarded 666, 354, Co., Tenn. 4 S.W.2d 57 A. respondents Costs case in the ; 470; 739; A.L.R. A.L.R. 627 29 L.R. Joseph Hayward, guardian B. ad litem of 621; 2 Sec. note A.L.R. Am.Jur. Joseph Hayward, minor, Jr., a B. L.R. C.J.S., Agency,(cid:127)§ 255, 11, pocket part; 3 Yost, al., et respondents awarded p. 188. against Harry Speer. W. growth of the doctrine inde- pendent contractor such matters involving TAYLOR, JJ., PORTER concur. *16 ably presented exhaustively is and as here Morris, KEETON, case Stockwell v. the of treated in Justice.
supra. disposition concur in I ultimate made- opinion in majority this case. in carefully I do have and
We con- examined of concur the reasons assigned given. in some all errors conclude sidered and á3á a attempts relationship principal agent establish the es- who and
That one of of relation by reason a tablished. another liability of agent principal cannot estab and ship of Speer What the acci- said at time of liability hearsay lish declarations dent, thereafter, or as might be construed fundamental purported agent so is of declaration, was, against him, if but authority. require citation of no1 could not bind the other defendants. relationship principal and of While the competent In case was no there testimony agent may be established proof, prima facie otherwise, or to estab- agent, declarations such al- of the lish relationship servant, of master and a court are hear- leged agent outside of principal or agent, Speer between and exceptions say, subject not at some defendants; competent other and no here, applicable cannot all received proof that he was acting for or behalf agency. establish such defendants, them, other or opinion in broad statement injury. time of the damage and “ * * * agency Hence where the has es- liability been no evidence, independent the Livestock Company, tablished its members, declarations corroborative are evidence was established. ” * * * unnecessary
admissible is a One who affirms the existence of a re- case and rule so stated decision in this lationship servant, prin- of master and applicable to the facts. cipal agent, as a basis for has relief the burden of Exceptions proving rule that to the the declara- existence such relationship. prove agent' are inadmissible to The fact that the de- of an tions Speer gestae fendant agency, as res statements had credit account with 'the defendant made, agency partnership, did, after has only and then if he exceptions, the further established, other fact that been first checks of some inapplicable through cleared For a col- any, partnership, if here. the defendant they did, rule if covering all, lection authorities no my evidence at in thereto, exceptions 170. opinion, prove see 67 A.L.R. the relationship prin- cipal agent, or master and servant at Speer placed evi- statements of of the accident. Such time case, some instances made in this dence lacking, being entirely the motion for non- complained of after the accident hours judgment suit occurred, could no sense construed notwithstanding the verdict should have part gestae res none to be a granted. been by Speer were so the statements made prove liability partner- admissible GIVENS, J.,C. concurs KEE- with TON, ship for the reason that there was never J.