Salmon v. . Pearce

27 S.E.2d 647, 223 N.C. 587, 1943 N.C. LEXIS 328

• Court: Supreme Court of North Carolina
• Decided: November 24, 1943
• Status: Published

Opinion

BabNhill, J.

It is apparent from this record that the judgment of nonsuit was bottomed on the conclusion that there was no sufficient evidence offered tending to show that Pearce at the time of the accident was about his master’s business, so as to charge the insurance company with liability under the doctrine of respondeat superior. In this conclusion we concur.

The evidence tends to show negligence and general employment, and nothing more. There is no evidence that Pearce was, at the time and in respect to the transaction out of which the injury and death arose, engaged in discharging any duty of his employment.

Proof of general employment alone is not sufficient to impose liability. It'must be made to appear that the particular act in which the employee was at the time engaged was within the scope of his employment and was being performed in the furtherance of his master’s business. Tribble v. Swinson, 213 N. C., 550, 196 S. E., 820; Liverman v. Cline, 212 N. C., 43, 192 S. E., 809; Smith v. Moore, 220 N. C., 165, 16 S. E. (2d), 701, and cases cited; Grier v. Grier, 192 N. C., 760, 135 S. E., 852; Biddle v. Whisnant, 220 N. C., 131, 16 S. E. (2d), 698; Robinson v. Sears, Roebuck & Co., 216 N. C., 322, 4 S. E. (2d), 889; Cole v. Funeral Home, 207 N. C., 271, 176 S. E., 553; Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 126; McLamb v. Beasley, 218 N. C., 308, 11 S. E. (2d), 283.

Presence of the premium collection book on the car owned by Pearce and used by him in discharging his duties does not supply the missing link. Van Landingham v. Sewing Machine Co., supra; Tribble v. Swinson, supra; Creech v. Linen Service Corp., 219 N. C., 457, 14 S. E. (2d), 408.

Barrow v. Keel, 213 N. C., 373, 196 S. E., 366, and Pinnix v. Griffin, 219 N. C., 35, 12 S. E. (2d), 667, relied on by plaintiff, are factually distinguishable.

Was there, then, error in the exclusion of the evidence relating to statements made by Pearce shortly after the accident?

Agency having been established either by proof or by admission, the declarations of the agent made in the course of his employment and within the scope of his agency and while he is engaged in the business (dum fervet opus') are competent as, in that case, they are,' as it were, the declarations of the principal. Brittain v. Westall, 137 N. C., 30, 49 S. E., 54, and cases cited; Hunsucker v. Corbitt, 187 N. C., 496, 122 S. E., 378.

To be competent tbe statement must be made while the agent is engaged in transacting some authorized business and must be so connected with it as to constitute a part of the res gestee. It must be a part of the business on hand or the pending transaction, as regards which for certain purposes the law identifies the principal and the agent, Queen v. Ins. Co., 177 N. C., 34, 97 S. E., 741; or it must be the extempore utterance of the mind under circumstances and at a time when there has been no sufficient opportunity to plan false or misleading statements —such statement as exhibits the mind’s impression of immediate events and is not narrative of past happenings. Tiffany on Agency, p. 252; Queen v. Ins. Co., supra; Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802; Caulder v. Motor Sales, Inc., 221 N. C., 437, 20 S. E. (2d), 338. On this point Pinnix v. Griffin, supra, is also authoritative.

Statements of an agent that are nothing more than a narrative of a past occurrence, Northwestern Union Packet Co. v. Clough, 22 L. Ed., 406, and which do not characterize or qualify an act presently done within the scope of the agency, Nance v. R. R., 189 N. O., 638, 127 S. E., 635, are, as against the principal, nothing more than hearsay and are incompetent. Brown v. Montgomery Ward & Co., 217 N. C., 368, 8 S. E. (2d), 199; Caulder v. Motor Sales, Inc., supra. See also Anno. 76 A. L. R., 1125, 20 Am. Jur., 510, sec. 599; Winchester and P. Mfg. Co. v. Creary, 116 U. S., 161, 29 L. Ed., 591.

A driver’s statement to a policeman, made before the person injured by his truck was taken away, that he was working for the defendant, Renfro v. Central Coal and Coke Co., 19 S. W. (2d), 766, or a chauffeur’s declaration that he was on a mission for his employer, is incompetent for “the act done cannot be qualified or explained by the servant’s declaration, which amounts to no more than a mere narrative of a past occurrence.” Frank v. Wright, 140 Tenn., 535, 205 S. W., 434. Likewise, a remark made by an automobile driver, immediately after returning to the place where he ran the car into a wagon and horses, that he was working for the defendant is hearsay and inadmissible for any purpose. Beville v. Taylor, 202 Ala., 305, 80 So., 370; see also Sakolof v. Bonn, 194 N. Y. Supp., 580; Lang Floral and Nursery Co. v. Sheridan, 245 S. W., 467 (Tex.); and Moore v. Rosenmond, 238 N. Y., 356, 144 N. E., 639, which are to the same effect.

That such declarations are hearsay and inadmissible in evidence is sustained not only by the text writers and decisions of other courts but by many decisions of this Court in addition to those heretofore cited. Cole v. Funeral Home, 207 N. C., 271, 176 S. E., 553; Smith v. R. R., 68 N. C., 107; Rumbough v. Improvement Co., 112 N. C., 751, 17 S. E., 536; Gazzam v. Ins. Co., 155 N. C., 330, 71 S. E., 434; Hubbard v. R. R., supra; Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 817, and cases cited.

It follows tbat tbe testimony as to declarations made by tbe defendant Pearce was incompetent and inadmissible as against tbe defendant Insurance Company. These declarations were made some time after tbe occurrence, after Pearce bad left tbe scene of tbe accident and returned, after police bad arrived at tbe scene, and after tbe deceased bad been placed on an ambulance. They clearly come under tbe hearsay rule.

Even if admitted, tbe statement made tends to show tbat Pearce bad completed bis work and was at tbe time on bis way borne. Creech v. Linen Corp., supra; McLamb v. Beasley, supra.

Tbe judgment below is

Affirmed.