Opinion
No. 49
Filed 8 January 1980
1. Evidence 36 — statements by agent — admissibility against principal The statement of an agent to a third party will be admitted into evidence as the admission of the principal only when (1) the statement is spoken within the scope of the agent's authority to speak for his principal, or (2) the statement relates to an act presently being done by him within the scope of his agency or employment.
2. Evidence 36.1 — statements by defendant's employee — inadmissibility against defendant In an action to recover for injuries sustained when plaintiff tripped and fell over anchor brackets left in a sidewalk after removal of a telephone booth, statements concerning defendant telephone company's liability made to plaintiff by defendant's service foreman for telephone booth maintenance when he came to supervise removal of the brackets an hour and a half after the accident were not admissible against defendant where there was no showing that the service foreman was defendant's agent for handling negligence claims, and the statements did not relate to an act presently being done by the foreman within the scope of his employment but constituted a hearsay narrative of a past occurrence.
APPEAL by defendant Southern Bell from decision of the Court of Appeals, 41 N.C. App. 62, 254 S.E.2d 243 (1979), which found no error in the trial before Smith (David I.), S.J., at the 30 January 1978 Civil Session of NEW HANOVER Superior Court.
Brown Culbreth by Stephen E. Culbreth, attorney for plaintiff appellee.
Poisson, Barnhill, Butler Britt, by L.J. Poisson, Jr., and John C. Collins; R. Frost Branon, Jr., General Attorney for Southern Bell; of Counsel, Drury B. Thompson, Vice President and General Counsel for Southern Bell, attorneys for defendant appellant.
Justice COPELAND dissenting.
Justices EXUM and CARLTON join in the dissenting opinion.
On 27 May 1975, plaintiff brought this action to recover damages for personal injury suffered on 4 July 1974 when he struck his right foot on a bracket left embedded in the cement adjacent to the sidewalk in Carolina Beach. The bracket had been placed there by defendant Southern Bell as an anchor for one of its telephone booths and had been left there by defendant John C. Ward when, pursuant to instructions from Southern Bell, Ward removed the telephone booth some six months before the accident.
Plaintiff alleged that his injuries were proximately caused by the negligence of either or both defendants. In its answer, Southern Bell denied negligence on its part and asserted that John C. Ward was acting as an independent contractor when he removed the telephone booth and left the brackets. In his answer, defendant Ward denied he was an employee of Southern Bell, admitted removing the telephone booth at the request of Southern Bell, and denied negligence.
Plaintiff's evidence tends to show that a telephone booth stood at the corner of the Battery Restaurant, adjacent to a sidewalk in Carolina Beach. In April 1973, the operator of the restaurant asked Southern Bell to remove the booth. "I told them that it might be for just a temporary period of time, maybe a week or so, and that it might be put back after some remodeling or reconstruction of the outside of the restaurant." The phone booth was removed but the brackets which formerly anchored the booth were left in the cement. Thereafter, "sometime in 1973, " the restaurant operator "contacted the telephone company and told it to remove the brackets." The brackets were not removed until 4 July 1974 after plaintiff's accident.
Plaintiff's evidence further tends to show that on 4 July 1974, while walking to a restaurant with his wife for lunch, he struck his right foot on a metal bracket adjacent to the sidewalk and fell, thus lacerating his right toe and twisting his left knee. The bracket was the same color as the sidewalk, and plaintiff had trouble seeing it even after tripping over it. Plaintiff called Southern Bell, and one Robert Rochelle, service foreman for telephone booth maintenance, promptly came to the location of the accident and in a conversation with plaintiff concerning the incident confessed negligence "on their behalf" and informed plaintiff someone from Southern Bell would contact him and furnish the name of a physician. Mr. Rochelle said: "We will take care of everything for you."
Plaintiff was later treated by Drs. Weis and Hundley for his injuries, incurred medical bills in the sum of $344.19, and plaintiff offered medical evidence tending to show that he had sustained a 10 percent permanent physical impairment to his left knee, secondary to a torn cartilage.
Defendant's evidence tends to show that John C. Ward, pursuant to contract, cleaned and maintained telephone booths for Southern Bell. One morning prior to 4 July 1974, Ward "got a call from Mr. Robert W. Rochelle, service foreman for booth maintenance for Southern Bell, to go and remove a phone booth at the Battery Restaurant; I was to remove this booth on a temporary basis. He said it might be for a day or two, as whoever was working on the building wanted to do some work behind where the booth was. Mr. Rochelle was the only one who would call me usually . . . . He instructed me to remove the booth, take it to the back of the building, and turn it face in so that no one would get inside and mess with the phone. He said he would let me know something in the next day or two as to when to put it back. I went and disconnected the booth and left the brackets standing because the work was being done in the area on scaffolding and such, and the booth was to go right back in the next day or so." Mr. Ward did not hear anything further on this matter until 4 July 1974. On that day Mr. Rochelle called Mr. Ward and told him to "go down there and remove these brackets, that somebody had stumped their toe." Mr. Ward went to the restaurant and quickly removed the brackets, and Mr. Rochelle arrived at the scene of the accident a few minutes after the removal.
At the close of all the evidence, the trial court allowed John Ward's motion for a directed verdict. Plaintiff appealed, and the Court of Appeals reversed and remanded for a new trial as to defendant Ward. 41 N.C. App. at 67. Defendant Ward has not appealed from this decision. Consequently, this aspect of the case is not before us.
At the close of all the evidence, the trial court denied Southern Bell's motion for a directed verdict. The jury found negligence on the part of Southern Bell, no contributory negligence on the part of plaintiff, and awarded plaintiff $15,000. Southern Bell appealed to the Court of Appeals and that court found no error with Vaughn, J., dissenting. Defendant thereupon appealed to the Supreme Court as of right pursuant to G.S. 7A-30(2).
The dispositive question on this appeal is whether statements allegedly made to plaintiff by defendant's agent R. W. Rochelle, were properly admissible into evidence as the admissions of Southern Bell.
In North Carolina there are two grounds upon which the statement of an agent to a third party will be admitted into evidence as the admission of the principal. See generally, 2 Stansbury, North Carolina Evidence, 169 (Brandis rev. 1973). First, such statement is admissible if it is spoken within the scope of an agent's authority to speak for his principal. Norburn v. Mackie, 262 N.C. 16, 136 S.E.2d 279 (1964); Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77 (1936); Russell v. Oil Co., 206 N.C. 341, 174 S.E. 101 (1934). If there is competent evidence that an agent is authorized to speak on behalf of his employer, then statements he makes to third parties within the scope of his authority and in the course of his agency are admissible in evidence as the admissions of the principal. 2 Stansbury, supra, 169 at 12-15. Any intimations to the contrary in Pangle v. Appalachian Hall, 190 N.C. 833, 131 S.E. 42 (1925); McEntyre v. Cotton Mills, 132 N.C. 598, 44 S.E. 109 (1903); Summerrow v. Baruch, 128 N.C. 202, 38 S.E. 861 (1901), and Williams v. Telephone Co., 116 N.C. 558, 21 S.E. 298 (1895), are expressly rejected.
Second, if there is no competent evidence that an agent has authority to speak for his principal, then his statement to third parties will be received as an admission of his principal only if the statement relates to an act "presently being done by him within the scope of his agency or employment." Hubbard v. R.R., 203 N.C. 675, 166 S.E. 802 (1932) (emphasis added). Accord, 2 Stansbury, supra, 169, and cases cited therein. If the statement made is "merely narrative of a past occurrence," it is not part of the res gestae but only hearsay and is not competent as against the principal. Hubbard v. R.R., supra. "Authority to do an act on the principal's behalf does not ordinarily carry with it an implied authority to talk about it afterwards." 2 Stansbury, supra, 169 at 16.
Application of the above principles to the facts in this case leads us to conclude that the statements allegedly made to plaintiff by defendant's agent, R. W. Rochelle, were erroneously admitted into evidence.
Plaintiff testified that he called Southern Bell immediately after his injury. He spoke to an operator and said: "`Operator, I guess this is an emergency. I have been injured by what used to be a phone booth on your property. To whom should I speak?' And I spoke with a lady . . . . She said she would have someone down there immediately and that she was sorry about the accident." Approximately an hour and a half later a Mr. Rochelle, from Southern Bell, came into plaintiff's shop, which was near the scene of the accident. Plaintiff testified that Mr. Rochelle told him the following:
"I am really sorry about the accident. That this is negligence on our behalf. That someone from the phone company will contact you today and let you know what doctor to go to. I am not versed in the medical aspect of this. I am not sure exactly who our physicians are, but someone will contact you today and tell you exactly what physician to go to there will be no trouble about it. That we will take care of everything for you."
In order for this statement to be admissible as an admission of Southern Bell, there must be evidence that Mr. Rochelle had the authority to make such statements on behalf of Southern Bell or that such statements related to an act presently being done by Rochelle within the scope of his employment.
There is no evidence in the record establishing Rochelle's authority to speak on behalf of Southern Bell with respect to the handling of negligence claims. The record shows only that Rochelle was Southern Bell's service foreman for telephone booth maintenance. Apparently, he supervised the installation, cleaning and removal of telephone booths. Upon being alerted that the anchor brackets of a previously removed telephone booth had injured a pedestrian, he came to supervise the removal of the brackets. The mere fact that Mr. Rochelle may have taken it upon himself to make certain statements concerning Southern Bell's liability is not probative of whether he had authority to make them. "The existence of the agency cannot be proved by the agent's extrajudicial statements. It must be established aliunde, by the agent's testimony or otherwise, before his admission will be received against the principal." 2 Stansbury, supra, 169 at 19, and cases there cited. See, e.g., Parrish v. Manufacturing Co., 211 N.C. 7, 188 S.E. 817 (1936). In summary, the record on appeal is silent as to whether Mr. Rochelle was Southern Bell's agent for the purpose of handling negligence claims. Absent such evidence, his extrajudicial statements may not be received into evidence as the admissions of his principal.
Nor does the record indicate that Mr. Rochelle's alleged statements to plaintiff related to an act "presently being done by him within the scope of his agency or employment." Hubbard v. R.R., supra (emphasis added). Rather, his statements related to an accident that had occurred an hour and a half earlier. As such, they merely constitute a hearsay "narrative of a past occurrence," which is not competent as against Southern Bell.
The erroneous admission of Rochelle's extrajudicial statements to plaintiff constitutes prejudicial error. Other assignments are not discussed since they are not likely to recur upon retrial.
For the reasons stated the decision of the Court of Appeals as it relates to Southern Bell is reversed. The case is remanded to the Court of Appeals for further remand to New Hanover Superior Court for retrial as to both defendants.
Reversed and remanded.