
    Cobb, Welsh & Co., vs. L. H. Johnson.
    Evidence. Declaration, of agent as evidence against the principal. Example. The declarations of an agent as to a transaction for which it is sought to make his principal liable by action, cannot be made evidence against the principal unless they are directly connected with, and made a part of the transaction. Thus, in an action against the principal to recover damages for the loss of a hired slave, by the alleged negligence of the defendant, testimony as to the agent’s declarations, made the day after the casualty by which the slave Was killed, as to the manner of the killing, is not a part of the res gestee, but in the nature of hearsay evidence; and therefore inadmissible.
    FROM MONTGOMERY.
    This action of trover was instituted in the circuit comt of Montgomery, in March, 1852, by L. H. Johnson, against Cobb, Welsh & Co., to recover damages for the alleged conversion and consequent loss of a slave hired by the former to the latter, and killed by the falling in of an ore bank. The declaration contains a count i/n case also. The slave was hired during the year 1851, to defendants, for service at their iron works. By the contract of hire, the defendants agreed to keep tlie slave out of “dangerous places, by which life or limb might be endangered.” Upon the trial -at the January term, 1854, before Judge Pepper, the plaintiff offered to prove the admissions and statements ■of Perkins, the agent of defendants, as to the casualty, which were made the day after the casualty occurred. This evidence was objected to by the defendants, but admitted by the court. There was verdict and judgment for the plaintiff, and the defendants brought up the cause by writ of error to this court.
    Henry and Shackleeoed, for the plaintiffs in error,
    with whom was John E. House, who said,
    Perkins was the ore bank manager of plaintiffs in error, at the time the negro in the pleadings mentioned was killed. The court permitted the declarations of Perkins, made the day after the casualty by which the negro lost his life, to be given in evidence to the jury. It is insisted that this was erroneous. The declarations of an agent cannot be given in evidence to bind the principal, unless they were made at the time the transaction, of which he speaks, took place, and constitute a part thereof. While he is doing the act, dum fervet opus, he may speak of it, and such declarations incorporate themselves into the thing then being done, and become a part of it. Such declarations are •evidence to charge the principal. 1 Greenleaf on Ev., sec. 113, 114. 1 Phil, on Ev., p. 99. Were the declarations of Perkins made one day after the transaction of which he spoke, admissible to charge his principal? Clearly not. If they were admissible a day afterwards, they could be admitted a year afterwards, and it would not be contended that declarations made a year after the happening 1 of an event, constituted a part of that event. Upon authority, the declarations of Perkins were not a part of the res gestae. “What an "agent says at the time of a sale, which he is employed to make, is evidence as part of the transaction of selling; but the principal is not bound by the representations of the agent at another time.” • 1 Phil, on Ev., 99. “Declarations are' not admissible as part of the res gestae, unless they were made at the time of the act done, which is under investigation, and which they are calculated to characterize; they must so ha/rmonize and ie connected with the act, done, as to constitute a part of it” Nelson vs. State. 2 Swan, 260. See also, Trousdale, Gov., c&c., vs. McNichol, 2 Swan, 384. Snell vs. McGavoch and Allen. 1 Swan, 208. 1 Swan. 279. 11 Humph., 67. 10 Humph., 138. 6 Peters, 504, 3, 4 and 5 paragraphs. It is therefore insisted that the court erred in permitting Jones and Hart, to detail their conversations with Perkins on the day after the negro was killed, for the value of which the plaintiffs in error were sued.
    Robb, for the defendant in error
    said:
    We admit, that on the first view of the case, without a careful examination of the whole case, and the peculiarities of this case, that it does appear that the statement of the agent, Perkins was improperly admitted, but on a careful examination of all .the facts and circumstances, it will appear otherwise, • The action is trover and conversion, with, a count in case for negligence. The proof shows that the plaintiff hired the slave, Westly, to defendants, from May 6th, 1851, to the 25th day of December, 1851, and in the contract the defendants specially agreed to take care of the slave and “keep him out of all dangerous places” during this term of hiring, and return him at the end of the time.
    The defendants having assumed this obligation with the plaintiff, saw fit to commit the compliance of their part of this agreement, (to wit: the management of the slave for this period of time) to their agent and negro manager, Perkins, rather than to execute it in person. Defendants were away from the whole scene of operations themselves, but were present and acting through their agent and manager. Whilst their agent was acting for them in the “keeping” and managing this negro, he failed to “keep” him “owt” of all “dangerous places,” and actually put him in a dangerous place, in which he was killed, by the falling in of the bank; and the next morning, at the bank, before the body of the negro was removed, and when it was before him, this agent gave an account of the disaster. His agency still continuing, and to the end of the year, for the management of the ore bank and the negroes there employed.
    The court will see that the statement of Perkins, detailed as given by Jones, is the same, and made at the same time as that stated by Hart in his deposition. Jones says that “he and Hart went there together,” and-Perkins gave them an account of the
    
      "We contend that Perkins, on this occasion, was representing and personating Ms principals, and that his declarations and acts were the acts of the principals themselYes. See 1 Story on Agency, sec. 135, 136, and 137. 1 Greenleaf, sec. 114. “When an agent is authorized to pay money for work done for his principal, or when he is referred to, to settle or adjust any account or business, his admission of the existence of the debt will take the case out of the statute of limitations,” also, “an acknowledgment by an authorized agent to buy goods for his principal, that Tie has received the goods, will, if made while he is transacting the business, but not otherwise, be good evidence of the delivery to him as against his principal.” Story on Agency, sec. 138.
    But it may be said that Perkins superseded his authority in permitting the slave to be in this dangerous place; to this we reply, that the defendants are bound to the owner of the slave, both for the lawful and unlawful acts of the agent as to the management of the slave. As in the case where the agent appointed to sell a horse, represented the horse to be sound, when he in fact was unsound. The principal was held responsible for the unauthorized and false representation of the soundness of the horse. Story on Agency, sec. 138, 126-7
    The slave Westly was by virtue of the contract of hiring, the property of the defendants during the year, and this property and contract was being represented by Perkins, the agent and manager; and whilst acting as manager, and entitled to the management of the slave, he made the declaration about the manner of management of the slave. The character of the management of the slave was the thing to he enquired of, and an account of this whilst acting, Perkins gave to witnesses, Jones and Hart.
    “Wherever the acts of the agent will hind the principal, then his representations, declarations, and admissions respecting the subject matter will, also bind him:, if made at the same time and constituting part of the res gestae.’’’’ 1 Greenleaf, sec. 113.
    What are we to understand by '■'•res gestes,” as applicable to the case before the court? The defendants did nothing, the agent did nothing, said nothing whilst the crumbling earth and stone was crushing the life out of the unfortunate negro. Neither principal nor agent did or said any thing a shprt time before or a short time after the fatal affair, hut the conduct of the agent previously, in sending the. slave into .the dangerous place; and his failure to comply with his contract during the whole time, in failing to- keep- him out of all íídangerous places” during the whole time, was the original cause from which the death resulted. If “res gestee” mean, and mean only, what was done and said whilst the slave was being killed, it means nothing; for nothing was said or done then.
    Those terms must be, in this case, understood to include and embrace all that occurred whilst the negro was in and at the ore bank, both before and after the killing, and what are “res gestae” must be determined by the coxn-t.
    The statements here made, were made just as the negro was taken out of the pit, and whilst he was lying by its side., certainly these declarations were made “during the continuancy of the ageney in regard to a transaction then depending, et dum fervet opus.” 1 Greenleaf, sec. 113, latter part.
   Cakuthees J.,

delivered the opinion of the court.

This action- is brought to recover, the value of a slave, hired to the defendants by the plaintiff, on the ground of conversion. It is specified in. the bond for the hire, that the boy is to bQ.^Te&pt out of all da/n-gerous places whereby Ufe or Umb may be endangered.” He was put to work at an ore bank, and while digging ore, was killed by the falling in of the bank above him. Whether it was a violation of the covenant, to put him at that place, would depend upon the proof as to the nature and character of the employment, and whether it should be regarded as a. “dangerous place.” The fact of itself, that the negro lost his life there, would not be sufficient perhaps to make out the breach. This would depend upon the proof of those acquainted with such places, and the nature of the employment. But we give no opinion now upon this point — it would be a question for the jury.

■ But a question of evidence is raised, upon which; the cáse must turn at present.

Perkins, was the manager and agent of defendants at the iron works, where the boy. was placed. ■ He made certain statements and declarations, as to the facts and circumstances of the death, on the day. after it occurred, which were allowed to be proved on the trial against the defendants. The objection to this evidence was overruled by the court, and exceptions- taken.

In this, we think, there is manifest error. Perkins was a competent witness for either party, and could have been introduced, if his evidence was desired.

The declaration of an agent is not evidence against his principal, unless they are directly connected with, and made a part of the transactions of the agency. If they be at a time subsequent to the act, or unconnected with it, they are hearsay, and therefore inadmissible. To make the statements of Perkins competent, they must have been made at the time the thing under investigation occurred, so as to constitute a part of it.

This is what is meant by the res gestee. 1 Greenlf. Ev. 114, 113. 2 Swan R, 260, 384%

In the case under consideration, the thing to be ascertained was, the manner in which, and the character ■of the place at which the slave Westly was killed. To ■show this, the agent, Perkins, made statements on the next day after the event.

It is evident from the bare statement of the facts, that the rule above laid down, must exclude these declarations. They cannot, in any sense, be incorporated into, and constitute a part of the event, which transpired the day before.

They are not then, a part of the res gestee, and should have been excluded.

For this error, the judgment will be reversed, and a new trial granted.  