66 Iowa 622 | Iowa | 1885
Lead Opinion
Defendant was the keeper of a feed-stable, and received horses belonging to others to be cared for and fed for a consideration. Plaintiff left with him a team of horses, which defendant undertook to care for during that day. When plaintiff returned for the team he found that one of the horses was dead.
His claim is that the animal got its head fast in a box in which its feed was placed, and that in struggling to free itself it was killed; and he alleges that the injury was occasioned by the careless and negligent manner in which the stable was constructed. He also charges that defendant was negligent in not looking after and properly caring for the animal while it was in the stable.
Under this rule plaintiff was entitled to introduce evidence of the declarations in question only in case he had established that the persons who made them was in fact the agent of the defendant; that they related to a matter within the scope of his employment as such agent; and that at the time of making them he was engaged in the performance of some duty with reference to the matter to which they related. The evidence shows that defendant also kept a store, and that the person who it is claimed made the declarations sometimes assisted him in the store, and at other times gave attention to the business at the feed-stable. It is shown that he sometimes had charge of the stable, and that at such times he gave directions for the feeding and care of the horses in it, and received pay for the services rendered from the patrons of the place. Whatever he did, either in the store or at the stable, was done for defendant. We are of opinion that this evidence establishes that the relation of principal and agent existed between defendant and this person. It also shows, we think, that the agent had authority to act for defendant in the transaction with plaintiff of the particular business which was then pending between the parties, and the declarations related to the subject of that business. Plaintiff went to the stable for the purpose of paying for the care of his team and taking it away, and the agent had authority to
The case differs materially in its facts from Verry v. Burlington, C. R. & M. R’y Co., 47 Iowa, 549, cited by appellant. The declaration of the agent which was admitted in that case did not relate to any business which the agent was engaged in transacting at the time it was made, and it was held that it should have been excluded on that ground; while in this case the declaration related to the very business in which the agent was engaged at the time.
We find no error in the record on which we think the judgment should be disturbed. It is therefore
Affirmed.
Dissenting Opinion
dissenting . — A. am not abie to concur in the foregoing opinion as to the admissibility of the statements of the defendant’s agent. It is true that this agent appears to have been employed to some extent in the capacity of an hostler, but he had nothing to do with the transaction out of which the plaintiff’s loss arose. He did not put up the horse. The most that can be said is that, after the horse was dead, the hostler, having been notified, came and extracted his body, and the statements which the witness was allowed to testify to as having been made by the hostler were in regard to the condition in which the horse was found. These statements Avere nothing but a narrative of past evejits, and it is well settled that evidence of such statements made by an agent do not bind the principal. In 1 Greenl. Ev., § 113, the author says: “Where the agent’s right to act in the particular matter in question has ceased, the principal can no longer be affected by his declarations, they being mere hearsay.” Citing Stiles v. Western R’y Co., 8 Metc., 44; Corbin v. Adams, 6 Cush., 93; Covington, etc., R'y Co. v. Ingles, 15 B. Mon., 637.
It is of no consequence that the- hostler was still in the defendant’s employment as hostler at the time he made the alleged statements. The material faqt is that he was not then nor at any time engaged in the transaction in which the injury occurred. Even if the hostler had been charged with responsibility in regard to the construction of the stable, and there had been evidence tending to show that the injury occurred through his fault in constructing it improperly, his statements about it subsequent to the injury would not bind his principal. It Avas substantially so held in Luby v. Hud
Under the ruling made, I no see reason why any employer would not be bound by any statement of an employe