United States Cast Iron Pipe & Foundry Co. v. Caldwell
94 So. 540
Ala.
1922
Check Treatment
SOMERVILLE, J.

Conceding, without deciding, that the evidence .is sufficient to support a finding by the jury that the defendant Friel was personally interested in having the coal mine opened and. operated for experimental purposes, and that he not only authorized the miner Geis to do so, but actually employed him for that purpose, nevertheless plaintiff’s case against the appellant corporation must be held to be without support in the evidence.

[1] Under the allegations of the complaint, plaintiffs could not recover unless they showed that the intestate was an employee of appellant corporation in the prosecution of the work of opening the mine. Harris v. McNamara, 97 Ala. 181, 187, 12 South. 103; Dallas Mfg. Co. v. Townes, 148 Ala. 146, 152, 41 South. 988.

The only evidence which tends in the remotest degree to connect tlie appellant corporation with the opening and operation of th.e mine—which was, according to all the witnesses, including plaintiffs’, “under the direction and control of Nick Geis”—is the testimony of witness Early that on one occasion, when he was at the mine with Friel, Friel told him that “he was having the work done for the United States Cast Iron Pipe & Foundry Company.”

[2] But the evidence shows without dispute that Friel was employed by that company merely in its work of prospecting and testing for coal, and that his duty was to supervise the drilling and some surveying being done for the company. He had no authority to open or operate a coal mine for the company—an undertaking which was clearly beyond the scope of his employment. PTence his declaration, if made as claimed, did not tend to show that the work was being done by the authority of the company, or with its knowledge or consent. Oden-Elliott Lbr. Co. v. Rowe, 201 Ala. 128, 129, 77 South. 552.

[3,4] It must be observed, however, that the statement in question was hearsay merely, and was improperly admitted in evidence.

The rule is, of course, well settled that where a parol agency is involved, the fact and extent of the agency may be established by the testimony of the agent; and that, where there is enough testimony to support a finding of the existence of the agency, the acts or declarations of the agent are admissible in evidence against the principal. Roberts v. Williams, 198 Ala. 290, 73 South. 502.

But, as to the latter proposition, there is an important limitation, viz. the act or dee *263 laration must be explanatory of, and part of,: some act or transaction, witbin the scope of bis authority, which the agent is at the time engaged in performing for his principal. Union Naval Stores Co. v. Pugh, 156 Ala. 869, 374, 47 South. 48, and cases therein cited; 2 Corp. Jur. 939, § 695.

The undisputed evidence shows that Uriel was an agent of appellant corporation, but the same evidence shows also that his authority did not extend to the opening or operation of mines, and that he was wholly without authority as to the opening or operation of this particular mine.

Again, the statement imputed to Uriel was, under the circumstances, nothing but hearsay evidence. It was not made in the course of, or as a part of, the operation of the mine. On the contrary, it was made objectively, as a matter of information to a stranger.

[5] But, if it were conceded that Uriel was authorized by appellant corporation to have the mine opened and operated, and that, acting under that authority, he made the arrangement which he says he made with Geis, or even employed Geis to do the work, assisted him'with his pay roll, supplied him with timbers, and promised to secure a car for the coal being mined; yet under the evidence it cannot be doubted, as a clear legal conclusion, that Geis stood in the position of an independent contractor, for whose negligence in the conduct of his undertaking his employer was not responsible to the man employed by Geis, even if the complaint were framed to cover such a case. Harris v. McNamara, 97 Ala. 181, 12 South. 103; Dallas Mfg. Co. v. Townes, 148 Ala. 146, 41 South. 988; Porter v. T. C. I. & Ry. Co., 177 Ala. 406, 59 South. 255; Scoggins v. Atlantic, etc., Co., 179 Ala. 213, 60 South. 175; ConnorsWeyman Steel Co. v. Kilgore, 189 Ala. 643, 645, 66 South. 609.

Bor the reasons above set forth, the general affirmative charge should have been given for appellant [defendant] as requested, and its refusal was error which must reverse the judgment.

Beversed and remanded.

ANDEBSON, C. J., and McCLELLAN and THOMAS, JJ., concur.

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