The burden of proving agency rests upon the party asserting it, and he must prove both the agency and its extent. Jobe v. Witten, 204 S.W.2d 575, 577 (Ky. 1947). Relying on Paintsville Hospital, 683 S.W.2d at 257, the plaintiff contends that SEP is subject to liability because it did not provide a consent form notifying her that Rogers and Todd were independent contractors.
It is long settled that errors which involve the legal and relative rights of the parties cannot be tolerated. See, e.g.,Powers v. Sutherland, 62 Ky. 151 (Ky.1864) and Taylor v. Monohan, 71 Ky. 238 (1871) (By not alleging the essential landlord-tenant relationship existed and disclosing an interest or right to the possession of the premises in the plaintiff, the warrant was fatally defective.); Jobe v.Witten, 305 Ky. 457, 204 S.W.2d 575, 576 (1947) (“In a forcible detainer proceeding the warrant ... should show that the defendants, tenants of the complainant, now hold against him.”).Clay v. Terrill, 670 S.W.2d 492 (Ky.App.1984), decided by the Court of Appeals, is the most recent reported decision based upon insufficient notice.
One pleading and relying on agency has the burden of proving both the agency and its extent. Jobe v. Witten, 305 Ky. 457, 204 S.W.2d 575; General Service Garage v. Lexington Oil Co., 274 Ky. 330, 118 S.W.2d 690. We must also bear in mind that an agency cannot be established by the declaration of the alleged agent but must be established by other evidence.