Sledge v. Wagoner

109 S.E.2d 180 (1959)

250 N.C. 559

Willard Robert SLEDGE v. Bryce WAGONER, P. E. Hodges and J. Bernard Parker, t/a Bus Terminal Restaurants and Modern Grill.

No. 529.

Supreme Court of North Carolina.

June 12, 1959.

*182 Ottway Burton and Don Davis, Asheboro, for plaintiff, appellant.

James B. Lovelace, High Point, for defendants, appellees.

BOBBITT, Justice.

As in Maddox v. Brown, 233 N.C. 519, 521, 64 S.E.2d 864, 865, where the rules applicable are fully stated, decision turns on "whether the evidence on the retrial was substantially the same as, or materially different from, that adduced at the previous trial." See Jernigan v. Jernigan, 238 N.C. 444, 78 S.E.2d 179, and cases cited.

The evidence relating to the cause and circumstances of plaintiff's fall consists of plaintiff's testimony. Except as stated below, it is substantially the same as his testimony at the trial at November Term, 1957, set forth in detail by Johnson, J., in the opinion in Sledge v. Wagoner, 248 N.C. 631, 104 S.E.2d 195. Variations in small particulars need not be discussed.

At the first trial, pertinent to his contention that the passageway was obstructed, plaintiff testified he could "open the door 24 inches from the door facing to the corner of the table," and when he pushed on the door it opened just wide enough for him to "sidle in." At the second trial, plaintiff testified: "The width of that door from jamb to jamb is 36 inches." Again: "From the right-hand door facing to the corner of the table was forty-seven inches." Again: "With those chairs here you could open it around thirty-one inches the way the chairs were occupied." Again: "* * * this rack was approximately four inches from the edge of the door. I won't say for sure, it could have been a little more." He did not use the phrase, "sidle in," or testify that he could not or did not open the door sufficiently wide to enable him to walk into the restaurant without coming in contact with the magazine and newspaper rack. We need not determine whether these variations, standing alone, are sufficiently material to require decision contrary to that reached on the former appeal.

According to plaintiff's testimony, the "little snag" or "spur," on which the cuff of his right trouser leg caught, was approximately three inches from the floor and "anywhere from a half to three-quarters of an inch" in length. The complaint alleged "That the side of the projecting rod was too small to detect by the plaintiff, but that it was large enough to catch in his pants leg * * *." He testified he first observed the "snag" from his position on the floor after he fell. The plaintiff had been in this restaurant almost daily during the six months preceding his fall.

At the first trial, plaintiff testified, without objection, that Wood, the restaurant manager, told him that "he ought to have moved that magazine rack before somebody got hurt." On former appeal, this was referred to as "the crucial evidence" relative to foreseeability as an element of proximate cause, which, "with other corroboratory evidence suffices to make the question of foreseeability one for the jury."

At the second trial, on objection by defendants, the court excluded this proffered testimony: When asked what statement, if any, Wood made with reference to the rack, plaintiff answered: "He said, `I am going to move this before somebody else gets hurt'; said `It ought to have been moved before, it is too close to the door.'" Plaintiff insists that this testimony as to Wood's declarations was competent and should now be considered. (Note: At the second trial, plaintiff did not testify or proffer testimony that Wood then moved *183 the rack and carried it out and said he was going to dispose of it.)

Wood worked in defendants' restaurant and served plaintiff on many occasions. On September 3, 1955, plaintiff entered the restaurant and ordered a cup of coffee. Wood served him. Plaintiff left his coffee on the counter and went (through the swinging door) into the waiting room in order to check the bus schedule. He fell when he re-entered the restaurant. Plaintiff testified: "As to how long after I fell before I had any conversation with Mr. Wood about the rack, I don't know the minutes they were, it was a few minutes, he came around, possibly five or six minutes, just a few minutes. I had got up and sitting up on my stool. I was going to drink my coffee and I was hurting so bad I couldn't, made me sick."

Plaintiff assigns as error the exclusion of evidence offered to show that Wood was the manager of defendants' said restaurant.

Plaintiff's testimony that Wood said he was the manager was incompetent and properly excluded. "* * * extrajudicial declarations of an alleged agent are inadmissible to establish either the fact of agency or its nature and extent, such statements being regarded as hearsay and offered for the purpose of proving the truth of the factual matter therein asserted." Parrish v. Boysell Manufacturing Co., 211 N.C. 7, 11, 188 S.E. 817, 819, and cases cited; Commercial Solvents, Inc. v. Johnson, 235 N.C. 237, 69 S.E.2d 716.

The agreed case on appeal states: "Plaintiff offered into evidence a portion of an unverified and unsigned purported copy of a purported reporter's transcript (attached hereto as plaintiff's Exhibit `H') of the testimony of one Bryce Wagoner at a hearing before the Clerk upon a motion in a civil action entitled: `Willard Robert Sledge, Plaintiff v. Bus Terminal Restaurant of North Carolina, Inc., defendant.' " There was no testimony that Bryce Wagoner, a defendant in the present action, made the statements attributed to him in answers set forth in the portion of the purported copy of purported transcript offered by plaintiff. Moreover, there was no identification of this transcript by the person who purportedly prepared it. Under these circumstances, this proffered evidence was properly excluded.

Too, the court properly excluded plaintiff's Exhibit "I," a paper purporting to be an affidavit of J. Bernard Parker, a defendant herein. No testimony was offered to identify the signature of J. Bernard Parker. Moreover, its exclusion did not prejudice plaintiff. Indeed, it sets forth that the said restaurant in High Point was one of the restaurants operated by defendants herein as partners, trading under the firm name of Bus Terminal Restaurants of North Carolina, and that Wood was an employee of the High Point restaurant.

The evidence suffices to show that Wood was an agent of defendants. We consider now whether, as contended by plaintiff, the exclusion of plaintiff's testimony concerning Wood's declarations was erroneous.

Clearly, the statement or remark attributed to Wood was not competent as a spontaneous statement or utterance. VI Wigmore on Evidence, 3rd Ed., § 1746; Stansbury, North Carolina Evidence, § 164; Staley v. Royal Pines Park, 202 N.C. 155, 162 S.E. 202; Johnson v. Meyer's Co., 246 N.C. 310, 313, 98 S.E.2d 315. It was simply Wood's appraisal, after plaintiff's fall, of what he then thought should have been done and should be done to avoid the possibility of contact by plaintiff and others with the newspaper and magazine rack. It does not suggest that Wood had knowledge or notice of any prior incident in which plaintiff or any other person had encountered any difficulty on account of this rack nor was there evidence that any such prior incident had occurred.

There is no evidence that Wood was authorized by defendants, his principals, to *184 make such a statement or remark. Moreover, it did not relate to a transaction then pending wherein Wood purported to speak for defendants. Fanelty v. Rogers Jewelers, 230 N.C. 694, 697, 55 S.E.2d 493, 496, and cases cited. In the Fanelty case, a statement by defendant's store manager, made in a casual conversation a month or so after plaintiff had fallen in the store entryway, that "the store had `a very dangerous front,'" was held properly excluded. Here, as in the Fanelty case, the statement or remark appears to be no more than an expression of opinion.

The well settled rule is stated by Stacy, C. J., in Hubbard v. Southern R. R. Co., 203 N.C. 675, 678, 166 S.E. 802, 804, as follows: "It is the rule with us that what an agent or employee says relative to an act presently being done by him within the scope of his agency or employment, is admissible as a part of the res gestae, and may be offered in evidence, either for or against the principal or employer, but what the agent or employee says afterwards, and merely narrative of a past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer." Hughes v. Anchor Enterprises, 245 N.C. 131, 135, 95 S.E.2d 577, 63 A.L.R.2d 685; Stansbury, North Carolina Evidence, § 169, and cases cited.

In Staley v. Royal Pines Park, supra, the plaintiff fell when going down a flight of steps on defendant's premises. She alleged, inter alia, that the carpet on the top steps had worn away. Plaintiff testified that, after her fall, the man in charge of the premises said: "We had intended to fix that carpet, but had just neglected to do so." [202 N.C. 155, 162 S.E. 203.] Evidence of these declarations was held incompetent. Decisions of like import include Hughes v. Anchor Enterprises, supra, and Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E.2d 199. It is noteworthy that these cases involved an agent's declarations as to what he had observed or done prior to the plaintiff's fall. A fortiori, declarations consisting merely of an appraisal or expression of opinion, after plaintiff's fall, as to what should have been done and as to what should be done in the future, are incompetent.

Plaintiff relies largely on Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77, where this Court held competent a report, containing statements of fact, filed by the employer's manager with the North Carolina Industrial Commission. Such report constituted the employer's compliance with the requirements of the statute now codified as G.S. § 97-92. Obviously, an employer cannot disavow the authority of the agent who acts in his behalf in filing a report required by statute. With reference to a compensation claim, it is noted: "There must be some causal relation between the employment and the injury; but, if the injury is one which, after the event, may be seen to have had its origin in the employment, it need not be shown that it is one which ought to have been foreseen or expected." (Our italics.) Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 726, 153 S.E. 266, 269; Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596.

For reasons stated, the exclusion of the testimony as to Wood's declarations was correct.

The legal duty of defendants was to maintain their restaurant premises in such a condition as a reasonably careful and prudent restaurant operator would deem sufficient to protect patrons from danger while exercising ordinary care for their own safety. Skipper v. Cheatham, 249 N.C. 706, 107 S.E.2d 625, and cases cited. Defendants are not liable for injuries resulting to plaintiff from his contact with the newspaper and magazine rack unless they could and should have reasonably foreseen that this rack was likely to cause injury to their patrons.

Absent the evidence considered crucial by this Court on former appeal, we *185 have concluded that plaintiff's evidence at the second trial was insufficient to support a finding that defendants could and should have reasonably foreseen that the newspaper and magazine rack described in the evidence was likely to cause injury to their patrons.

It is noted that Sledge v. Wagoner, 248 N.C. 631, 104 S.E.2d 195, has been cited as authoritative, in respect of the principles of law stated therein, in subsequent cases: Bemont v. Isenhour, 249 N.C. 106, 107, 105 S.E.2d 431; Skipper v. Cheatham, supra; Little v. Wilson Oil Corp., 249 N.C. 773, 107 S.E.2d 729; Garner v. Atlantic Greyhound Corp., 250 N.C. 151, 108 S.E.2d 461.

The judgment of involuntary nonsuit is affirmed.

Affirmed.