skull fracture resulting in a deep hole in side of head, residual permanent brain damage, headaches, memory loss, personality changes affecting social relationships, possibility of seizures and partial paralysis
How later courts described this case
- skull fracture resulting in a deep hole in side of head, residual permanent brain damage, headaches, memory loss, personality changes affecting social relationships, possibility of seizures and partial paralysis
- “[OJrdinarily an objection comes too late for the purpose of review on appeal, if made for the first time after the jury has retired or the cause has been submitted to them, or after the close of the arguments, or on motion for new trial or otherwise, after the verdict has been rendered.”
- construing §§ 5-310 and 5-311 of Idaho Code
- construing Idaho Code §§ 5-310 to -311
Written by the judges who cited it.
The opinion
KEETON, Justice.
I concur in the ultimate disposition made-in the majority opinion in this case. I do not concur in some of the reasons given.
*434 That one who attempts to establish the liability of another by reason of a relationship of principal and agent cannot establish such liability by hearsay declarations of the purported agent is so fundamental as to require no1 citation of authority.
While the relationship of principal and agent may be established by the testimony of the agent, the declarations of such alleged agent outside of a court are hearsay, and subject to some exceptions not at all applicable here, cannot be received to establish such agency.
The broad statement in the opinion “ * * * where the agency has been established by independent evidence, the declarations as corroborative evidence are admissible * * * ” is unnecessary to a decision in this case and the rule so stated is not applicable to the facts.
Exceptions to the rule that the declarations of an agent' are inadmissible to prove the agency, such as res gestae statements made, and then only after the agency has been first established, and other exceptions, if any, are inapplicable here. For a collection of authorities covering the rule and exceptions thereto, see 67 A.L.R. 170 .
The statements of Speer placed in evidence in this case, in some instances made hours after the accident complained of occurred, could in no sense be construed to be a part of the res gestae and none of the statements so made by Speer were admissible to prove liability of the partnership for the reason that there was never a relationship of principal and agent established.
What Speer said at the time of the accident, or thereafter, might be construed as a declaration, if it was, against him, but could not bind the other defendants.
In this case there was no competent proof, prima facie or otherwise, to establish the relationship of master and servant, or principal and agent, between Speer and the other defendants; and no competent proof that he was acting for or on behalf of the other defendants, or any of them, at the time of the damage and injury. Hence no liability of The Boise Valley Livestock Commission Company, or its members, was established.
One who affirms the existence of a relationship of master and servant, or principal and agent, as a basis for relief has the burden of proving the existence of such relationship. The fact that the defendant Speer had a credit account with 'the defendant partnership, if he did, and the further fact that some checks of Speer cleared through the defendant partnership, if they did, was no evidence at all, in my opinion, to prove the relationship of principal and agent, or master and servant at the time of the accident. Such evidence being entirely lacking, the motion for non-suit and judgment for the partnership notwithstanding the verdict should have been granted.
GIVENS, C. J., concurs with KEE-TON, J.