AK Adams & Co. Inc. v. Homeyer ( 1952 )

On Motion for Rehearing.

Carlisle, J.

Counsel for the defendant A. K. Adams & Company Inc., in their motion for a new trial state: “The court certainly must have misunderstood, overlooked, and misapplied the facts and law as raised by the amended motion for a new trial, bill of exceptions and argument and law urged by movant. Nowhere in the record was the question of the admissibility of the evidence by Standridge raised on the theory of res gestae.” In view of that statement, and in spite of the contention on page 6 of their original brief, that the evidence “was admissible as a part of the res gestae if for no other reason,” it would seem that we «have not made it entirely clear by what process of reasoning we placed our decision on that ground. Briefly, the steps of the process were these. “The declarations of the agent as to the business transacted by him shall not be admissible' against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent is dead.” Code, § 4-315. And an admission of a past wrongful act by a servant or employee, while evidence against the servant or employee, may not be used to charge the master or employer. Baker v. Lowe Electric Co., 47 Ga. App. 259 (170 S. E. 337), and citations. Clements is not a party defendant in this suit. To allow the introduction of his extra-judicial statement in evidence for the purpose of charging his employer, Akers Freight Lines, with the plaintiff’s damage, Clements’ statement must have been made as a part of the res gestae. We have already held, and we adhere to the ruling, that, in view of the time element involved, Clements’ statement was inadmissible as a part of the res gestae. Therefore, to theorize upon the admissibility of the statement on the ground that he had or had not been identified as the person making the statement, is but to belabor a dead issue. Whether he was or was not identified, his admission was not admissible in evidence' against his principal unless made as a part of the res gestae. It was not.

Motion for rehearing denied.

Gardner, P. J., and Townsend, J., concur.