Home Protection v. Whidden

COLEMAN, J. This is an action by the plaintiff, [206] Whidden, upon a fire insurance policy, to recover for the loss of merchandise &c. sustained by fire. The assignments of error are based upon the admission of evidence, against the objection of the defendant, and upon a charge given for the plaintiff, and the refusal to charge the jury as requested by the defendant. The court permitted the plaintiff to introduce in evidence, against the objection of the defendant, writings which were admitted to be mere copies of letters, written by one professing to be an agent of the company to another agent. The plaintiff did not serve notice on the defendant to produce the original letters, neither was there any evidence offered to show that the originals were lost or destroyed. Copies of letters can not be classed as original evidence, and are not admissible except upon proof of notice to produce the original, or after properly accounting for the absence of the original. — 13 Amer. & Eng. Encyc. of Law, pp. 261,262; 21 Amer. & Eng. Encyc. of Law,pp. 984-989. Generally the mere acts or admissions of one professing to act as the agent of another are not admissible, without independent proof of his authority. — 3 Brick. Dig., 21, § 43. After the fact of agency has been established, to render his admissions binding on thejprincipal, they must be explanatory of some cotemporaneous act within the scope of his authority, or must be made while in the execution of the agency forming a part of the res gestae. — 3 Brick. Dig. 25, § 108. Portions of- a letter written by one who is an agent, may be admissible against his principal, while other portions of the same letter may be inadmissible. Merely personal expressions of opinion by an agent, which throw no light upon the issue involved, ought not to be admitted against the principal, if such portions are especially objected to. These principles cover the assignments of error directed against the admissions of evidence. We can not say the court erred in giving charge No. 1, assigned as error. The oral charge of the court is not set out and we can not say whether there was any conflict between it and the written charges given for the defendant. The charge may have been abstract, but the giving of such a. charge is not necessarily reversible error. We do not think the court erred in refusing to give the affirmative charge for the defendant. The court [207] should never invade the province of the jury. If all the evidence introduced by the defendant was excluded, and the record showed no evidence except that for the plaintiff, we cannot say, the jury would not be authorized to find for the plaintiff. This is one way to test the right of a party to the general affirmative charge. These are the only assignments of error. Reversed and remanded.