McPherrin v. Jennings

Eeed, J. 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. i. evidence: of°i|ent°ns sitae. I. Eor the purpose of proving the manner in which the injury occurred, plaintiff offered evidence of the statements and declarations of a person who was in the barn when he returned for the team. Defendant objected to this evidence on the ground that it was incompetent, being mere hearsay. This objection was overruled, and the ruling is assigned as error. It is claimed by plaintiff that the person who made the declarations was — 624 — tlie agent of defendant, and that they were made while he was in the performance of the duties of his agency, and related to a matter within the scope of his employment. The ground upon which the declarations or admissions of an agent are admitted in evidence against his principal is that whatever he does or says in reference to the business in which he is at the time employed, and which is within the scope of his authority, is done or said by the principal. U. S. v. Gooding, 12 Wheat., 460; American Fur Co. v. U. S., 2 Pet., 358; Stiles v. Western R'y Co., 8 Metc., 46; Corbin v. Adams, 6 Cush., 93; Morse v. Connecticut R. R’y Co., 6 Gray, 450; 1 Greenl. Ev., § 113. 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 — 625 — receive tire pay and deliver the team. He declined to receive any pay for the services because of the loss which plaintiff had sustained, but he delivered the remaining horse, and it was while this business was being transacted that the statement was made. We think, therefore, that the court properly admitted the evidence. 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. SSignas'evidente of. 2. NEGDI-GENCE in structure: 3. evidence: niftting-aprejfiyinstmo-e<* tIOUII. Plaintiff was permitted, against defendants objection, to introduce evidence tending to prove that feed-boxes constructed in the manner in which those in defendant’s stable were constructed were not in use in the other stables in the town. This evidence, we think, should have been excluded. The question whether defendant was negligent in using the boxes depends upon whether they were so constructed as that it was dangerous to use them, and not upon whether they were in common use. We think, however, that defendant could not have been prejudiced by its admission. The construcr j j tion *ke boxes was fully explained by the wifcmesses, and in its instructions the court told the jury in effect that, unless they were so constructed that it was dangerous to use them, defendant was not negligent in using them, even though their construction was different from that of the feed-boxes in common use. Under the instructions the jury could hardly have failed to understand that the test of defendant’s liability was whether the use of the boxes was likely to be attended with danger, and, as the evidence objected to had no bearing on that question, there is no reason to suppose that they were misled by it. — 626 — 4. evidence: not relevant to issue. III. Defendant introduced as a witness a veterinary surgeon, by whom he proposed to prove that it frequently happens that horses suddenly fall down and die . , . , . without any apparent cause, or without being afflicted with any known or apparent-disease; but the evidence was excluded on plaintiff’s objection. This ruling is correct. The witness was offered as an expert, hut the subject on which it was proposed to examine him is not one of science or skill, nor was he asked to state his opinion on any questions relating to his profession. The questions asked him related solely to an alleged fact, and his testimony was offered for the sole purpose of proving the existence of that fact; but, standing alone, the fact, if it existed, wap immaterial to any issue in the case. The canse of the death of the horse in question might properly he inquired into, and, if the witness had been able to express an opinion from the facts proven or conceded in the case as to the cause of that death, such opinion would have been competent evidence. Rut it would have no tendency to disprove plaintiff’s theory as to the cause of the death of his horse, to show that horses sometimes die suddenly, when the cause of the death is not known or apparent. o. bailment: ba§ef1ndoc-£ tributorynegligeucenot applicable. IV. Defendant asks the court to instruct the jury that plaintiff was not entitled to recover unless he had proven that he was not himself guilty of any negligence contributing to the injury complained of; but the court refused to give such instruction. This rul- . . . _ , , mg id clearly right. Deiendant had the horse in his possession as bailee. ITis duty to properly care for it grew out of the contract of bailment, and his liability for its loss arises out of his failure to perform his contract obligation. The immediate cause of the loss, it is true, was the negligence in failing to properly care for the animal; hut this negligence constitutes a breach of contract, and the right of action is based upon this breach. It is clear that the — 627 — doctrine of contributory negligence lias no application to the case. We find no error in the record on which we think the judgment should be disturbed. It is therefore Affirmed.