Chantry v. Pettit Motor Co.

The two questions in this case are these: (1) Was it proper to admit the declaration of Hamilton, the driver of the automobile, to the effect that he was employed by the defendant corporation? (2) Was the evidence as to Hamilton's agency of the defendant sufficient to take the case to the jury?

In Shelton v. Southern Railway, 86 S.C. 98,67 S.E., 899, 901, our Court said this: "In State v. McDaniel, 68 S.C. 304,47 S.E., 384, 102 Am. St. Rep., 661, it was held that, while the declaration, in such cases, to be admissible as part of the res gestae, must be substantially contemporaneous with the litigated transaction, and be the instinctive, spontaneous utterance of the mind, while under the active influence of the transaction, the circumstances precluding the idea that it is the result of reflection or design, still no hard and fast rule can be laid down as to the precise time between the occurrence and the declaration; that each casemust be decided upon its own circumstances; and that muchshould be left to the sound discretion of the trial Judge; and that this Court will not reverse his ruling, unless it clearly appears from the undisputed circumstances in evidence that the declaration ought to have been admitted or rejected." (Emphasis added.)

In Land Mortgage, etc., Co. v. Gillam, 49 S.C. 345,26 S.E., 990, 29 S.E., 203, it was held: "Agency may be shown by the acts of the agent and surrounding circumstances." Syllabus.

In Watkins v. R. Co., 97 S.C. 148, 81 S.E., 426, it was decided: "A statement of a person that he is the agent of another does not in itself, prove agency, but is competent as a circumstances, in connection with other evidence, to prove agency." Syllabus.

In the case at bar, the evidence as to the statements of Hamilton met the required conditions, according to the authorities quoted. At the time of the accident, he was driving an automobile owned by the defendant — the president of the defendant corporation so testified. The car he was driving carried the demonstrator's license plate issued by the State Highway Department to the defendant. Immediately after the accident, while the two plaintiffs, Chantry and Mrs. Miller, mangled and bloody, were being aided by persons who had come to their assistance, Hamilton said he was employed by defendant, and requested that the defendant be notified of the accident. The defendant immediately sent for its car. The president of the defendant company later on paid the fine imposed in the Magistrate's Court upon Hamilton for reckless driving.

Hamilton, in trouble, thought he was employed by the defendant, and he called on the defendant for help. Later, when the suit was being tried, the defendant was in trouble, and the defendant needed Hamilton's help. A wise jury, looking into the faces of the witnesses, may have detected the reason of conflicting statements on the part of Hamilton. They were judges of the credibility of the witnesses.

The president of the defendant company testified that he had traded a new Ford automobile to his wife for the Buick, which was operated by Hamilton at the time of the accident; that he was permitting his wife to use the Buick until the new Ford arrived; that he had put a demonstrator's license on the Buick; and that his wife was using the Buick only as a temporary arrangement. This was some evidence to prove that the president of the defendant corporation was carrying on its business of selling automobiles. To hold his wife as a customer, he was letting her use the company's automobile until the new Ford came.

In Act No. 203 approved April 25, 1927 (35 St. at Large, 370), entitled, "An Act Relating to the Payment of Annual License Fees by Dealers in Motor Vehicles, and the Use of Motor Vehicles Owned by Dealers," there is contained this provision: "License plates issued to a dealer shall be used exclusively upon cars belonging to the licensed dealer and in usual course of said business." Under the language of that statute, when the defendant corporation put its demonstrator's license plate on the Buick, it said to the world that the Buick was exclusively owned by the defendant. When the company sent it out upon the public highways, it vouched to the public that the Buick was being used "in usual course of said business" of the corporation, which was to deal in automobiles.

Section 97 of the Criminal Code, Vol. 2, Code of 1922, makes it unlawful for any person to knowingly or willfully "use any motor vehicle * * * without the consent of the owner thereof. "The law does not presume the violation of a criminal statute. When Hamilton was in the Buick of the defendant, a corporation engaged in the sale of automobiles, and had on the Buick a demonstrator's license, which only the defendant had the right to use on its cars, the presumption was that Hamilton had the consent of the owner to operate that Buick. That presumption became stronger when it was conclusively shown by the evidence in the case that the president of the corporation, when its car had been damaged in the collision, did not prosecute Hamilton for his violation of law, but on the other hand advanced to Hamilton the necessary money to pay the fine imposed upon him for reckless driving.

Our rules of evidence must meet the conditions of the time. Innocent men, women, and children, lawfully and properly using the public highways, who are injured by the reckless driving of an irresponsible negro chauffeur, doped or intoxicated, as the testimony in this case shows was probably Hamilton's condition, should not be defeated of their right to recover damages, because, after the accident, the owner of the car, the driver of which did the damage, recalls that his business is incorporated, and that the chauffeur was employed by his wife and not by the corporation of which he is an officer. In the Shelton case, supra, this Court properly said that the admission of declarations by an agent under the res gestae rule are very much within the discretion of the trial Judge. I think Judge Wilson viewed all the surrounding circumstances of this case and exercised the discretion allowed him, under the law, wisely, with the view of administering justice and to aid in the protection of the lives of our citizens, who have the right to use our public highways.

I agree with the Chief Justice that the judgment below should be affirmed.

MR. JUSTICE STABLER concurs.