Gerke v. California Steam Navigation Co.

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action to recover damages for the unskillful construction oí the chimneys of the steamer Swan, and the negligence of the officers and servants of the company, in running tue vessel upon the Sacramento River; in consequence of which the crop of grain belonging to plaintiff, on the bank of the stream-was ei> on fire and consumed by sparks issuing from the chim, neya ol the boat, in July, 1856. The plaintiff obtained a verdict and ;udgment in the Court below, and the defendant appealed.

The first point made by the counsel of defendant is that the Court erred, in admitting evidence of the declarations of the master.

The declarations of the master were proved by the witness, McConoughay, who states, substantially, that he was a passenger upon the boat at the time; that he saw sparks and pieces of bark on fire, dying out of the chimneys and lighting on the grass, along the edge of the river on both banks; that the wind was blowing pretty hard at the time, and the fire immediately communicated to grass, grain, or anything that was near; and that he saw the fire entering into the grain of plaintiff, which was consumed. The plaintiff then asked the witness this question :

“ What conversation was had, if any, by the officers of the boat m relation to the fire ?”

The answer of the witness was:

“I heard the captain say that it was pretty hard on the [256]fanners to have their crops burnt up; and, if he thought the wind would lull in two or three hours, he would wait that time.”

The question and answer were objected to by defendant; the objection was overruled, and the defendant excepted.

The declarations of an agent will bind the principal, if made during the continuance of the agency, and at the very time of the transaction. These declarations, when thus made, are considered as part of the res gestee. (Story on Agency, §§ 134, 135; Greenl. E., § 113.

The question to determine is, whether these declarations of the master did constitute a part of the res gestee. In the case of Innes v. the Steamer Senator, (1 Cal. R., 461,) it was held by Bennett, Justice, that the declarations of the master, made the next morning after the collision, were no part of the res gestee. So, in the case of Mateer v. Brown (1 Cal. R., 224,) it was held, that the declarations of a barkeeper were not binding upon his principal, when not made in the discharge of his duty. The defendant, in that case, was an innkeeper, and the plaintiff left a package of gold-dust with the barkeeper. The declarations were not made by the barkeeper at the time he received the deposit, but afterwards, when he took the bundle out of the closet to exhibit it to a stranger. This Court held that the act of exhibiting -the package to a stranger was not done in the discharge of his duties as barkeeper, and his declarations were, therefore, but hearsay.