because made on Sunday. Though we find the case reported later, we have been unable to discover it in the Indiana Reports as decided on March 18, 1887, and reported in the book above referred to. Nevertheless we think the decision upon this question of waiver is sound on principle, and embodied a good exposition of Georgia law, whether it does so of Indiana law or not. To reach this holding, it is not necessary to differ from the St. Louis court of appeals in Massengale v. Western Union Tel. Co., 17 Mo. App. 257. In that case it was held that the oral promise of a general agent of a telegraph company to look into the matter was not a waiver of the condition requiring a demand to be made in writing. Here the matter was looked into, a decision made, and the result communi*cated. The court erred in not submitting the case to the jury, and in granting a nonsuit. Judgment reversed. TELEGRAPH COMPANIES - CONDITION AS TO THE PRESENTATION OF CLAIM WITHIN A CERTAIN TIME. The authorities all agree that the stipulation on the telegraph company's blank, that it will not be liable for damages in any case where the claim is not presented in writing within a certain number of days after sending the message, is valid and binding: Note to Camp v. West ern Union Tel. Co., 71 Am. Dec. 471. CHATTANOOGA, ROME, AND [85 GEORGIA, 482] NEGLIGENCE — EVIDENCE. — In an action to recover damages against a rail. road company for personal injury received through its negligence, evi dence that plaintiff's nervous prostration in consequence of the injury had a weakening effect upon her system, and required the administra tion of opiates, from which she was acquiring the opium habit; that she did not now and never will take the pleasure previously taken by her in her household duties; and that from the effects of the nervous prostration, she has no energy to work or to enjoy society, is admissible, not as an element of damages, but as an index to the pain and suffering of the plaintiff. EVIDENCE-DECLARATIONS AS PART OF RES GESTA - In an action against a railroad company to recover for personal injury, the declarations of the president of a construction company which was building and equipping the road, made two or three hours after the accident, and at another place, to a newspaper reporter, that it would be to his interest not to publish too much, that the road had been laid temporarily, that he had not had time to put the broad-gauge ties upon it, and that he did not want public opinion too strong against him, are not admissible. RAILROAD COMPANY, WHEN LIABLE FOR NEGLIGENCE OF LEASING CON. STRUCTION COMPANY - Where a contract between a railroad company and a construction company permits the latter to operate the road and to receive its earnings for two years from the time of the making of the contract, the railroad company is liable for injuries inflicted through the negligence of the construction company during that period. NEGLIGENCE-MEASURE OF DAMAGES. In an action against a railroad company to recover for personal injury, a finding of gross negligence against the company, without a finding of willful misconduct or an entire want of care raising a presumption of conscious indifference to consequences and the legal rights of others, will not authorize a verdict for exemplary or punitive damages. Such finding will only justify a verdict for compensatory damages. NEGLIGENCE-DAMAGES - INSTRUCTION. —In an action against a railroad company to recover for personal injury, an instruction that a finding of gross negligence against the company would entitle plaintiff to recover punitive damages as punishment of the railroad company is error, when the statute provides that such damages may be given "to deter the wrong-doer from repeating the trespass." The instruction should be given in the words of the statute. PRACTICE INSTRUCTION EXPRESSING OPINION, ERROR THROUGH LAPSUS LINGUE. In an action to recover damages for personal injury, an expression in a charge, "that these injuries are permanent, and that she will have to suffer the remainder of her life," omitting the word "if,” is error, although it appears from the whole charge that the omission was a lapsus lingua. ACTION against a railroad company to recover for injuries to a passenger from the derailing of a passenger-coach on a defective track, through the negligence of such company. Verdict for plaintiff. A motion for a new trial was overruled, and defendant excepted and appealed. Dabney and Fouché, for the plaintiff in error. Dean and Smith, for the defendant in error. SIMMONS, J. As this case is to be sent back for a new trial, we will not discuss the first three grounds of the motion, to wit, that the verdict is contrary to the evidence, to law, etc. The fourth ground of the motion was not insisted upon here. 1. The fifth, sixth, and eighth grounds of the motion complain that the court permitted a witness to testify that the plaintiff's nervous prostration had a weakening effect upon her system; that this injury had required the administration of opiates, and that the plaintiff was acquiring the opium habit as a result of this trouble, by reason of the administration of opiates; that the plaintiff had great pleasure in her household duties, but she does not take that pleasure now and she never will; and that from the effects of this nervous prostration she has not got the energy to work, or to enjoy Society, etc. Judging from the charge of the court, which is in the record, this evidence, and some other of like character, was admitted, not as an element of damage, but somewhat in the nature of an index to the pain and suffering of the plaintiff. Being admitted for that purpose, we cannot say it was error: Powell v. Augusta etc. R. R. Co., 77 Ga. 192; Texas etc. R'y Co. v. Douglas, 73 Tex. 325. 2. The ninth ground of the motion complains that the court permitted a witness for the plaintiff to testify as fol lows: "Mr. J. D. Williamson came to where Mr. Outz and I were talking about the road. Mr. Williamson said it would be to his interest not to publish too much. They were speak ing about the condition of the railroad, and Mr. Williamson said it was just put there temporarily; that he had not had time to put the broad-gauge ties on it, and he did not want public opinion so strong against him. He was talking about the hurried condition he had fixed up the road in, and did not want the public opinion too hard against him in the terrible wreck and smashing up people." We think the court erred in admitting this testimony. It was asserted by counsel in the argument before us, and not denied, that these sayings of Williamson were not made at the time the accident happened, but some two or three hours thereafter. Williamson was the president of the construction company which was building and equipping the road. While it is true that the construction company was operating the road in the transportation of passengers and freight, and while it is true that the railroad company was liable for the acts of the construction company (as we shall hold later on in this opinion), and that Williamson thereby became the agent of the railroad company, we do not think that these admissions made by him, under the circumstances disclosed by this record, were admissible as against the railroad company or the construction company. To make the admissions of an agent admissible as against his principal, they must be a part of the res gestæ, or must have been made during the performance of the agent's duties. It is clear that, the admissions of Williamson were not made as part of the res gestæ. He was not at the place of the accident, and, as said before, it was some two or three hours after the accident when he had the conversation with the newspaper reporter. And it is equally clear that they were not made when in the performance of a duty to the corporation, or while any duty to the corporation was being performed by him. It seems to us to have been more in the nature of an application to the newspaper reporter not to publish too much about the accident in his paper, and more in the interest of Williamson individually than of the railroad company. In the case of Wright v. Georgia Railroad etc. Co., 34 Ga. 330, it was sought to prove that a brakeman said that the axle of the car which had run off was two inches too short, and that he had told the company so; and this court held that "beyond the scope of his agency, an agent cannot, by his declarations, affect his principal. And as corporate bodies, especially railroad companies, have daily hundreds of employees in various service, with divisions of labor and duty, simple justice requires that these companies shall not be liable for damages upon the loose or casual sayings of every person who may be in their employment." In the case of Griffin v. Montgomery etc. R. R. Co., 26 Ga. 111, this court held that "the admissions of an agent, not made at the time when the fact transpires upon which it is sought to charge his principal, but subsequently, being no part of the res gestæ, should be excluded." In the case of Evans v. Atlanta etc. R. R. Co., 56 Ga. 498, an agent of a railroad made an indorsement on a bill of lading some days after the corn passed through Atlanta, and this court held that the indorsement of the agent was not admissible as evidence. On page 500, Jackson, J., in discussing the question, says: "If it was the duty of this agent to investigate how the freight was received, whether in good or bad order, and to report that fact on the bill of lading on inquiry by the agent at La Grange, then we think this indorsement would be made dum fervet opus, in the very work intrusted to him by the company; and being so made in the business he was employed to transact, his sayings, or writings, which are but written statements, would be admissible; but in the absence of proof that this was in the line of his business,—that it was his duty to investigate and report thereon,—the written statement on the bill of lading would be but the sayings of the agent in respect to a past transaction, and would not be admissible. In this case, the record does not disclose any proof that such investigation and report and indorsement was part of the business of this agent, and therefore the indorsement was properly rejected. . . . . These Georgia cases and our code confine the admissibility of the sayings of the agent to the business intrusted to him, and to the time while so employed, and exclude his sayings as to past transactions. In our state, they are admissible only upon the principle of being part of the res gesta. It is clear, therefore, that the court rejected the indorsement of this agent, and of the other agents, properly, because they spoke or wrote about past transactions, and there was no proof that it was their business to investigate these transactions, and write or make statements about them." Mechem, in his work on agency, section 714, says: "The statements, representations, and admissions of the agent, made in reference to the act which he is authorized to per form, and while engaged in its performance, are binding upon the principal in the samemanner and to the same extent as the agent's act or contract under like circumstances, and for the same reason. While keeping within the scope of his authority and engaged in its execution, he is the principal, and his statements, representations, and admissions in reference to his act are as much the principal's as the act itself. Such statements, representations, and admissions are therefore admissible in evidence against the principal in the same manner as if made by the principal himself. But it is obvious from this statement of the rule that not every statement, representation, or admission which the agent may choose to make is binding upon the principal. In order to have that effect, the statement or admission must have been made,-1. In respect to a matter within the scope of his authority; . . . . 2, The statements, representations, or admissions must have been made. in reference to the subject-matter of his agency; the mere idle, desultory, or careless talk of the agent, having no legitimate reference to or bearing upon the business of his principal, cannot be binding upon the latter; and 3. The statements, representations, or admissions must have been made by the agent. at the time of the transaction, and either while he was actually engaged in the performance, or so soon after as to be in reality a part of the transaction. Or to use the common expression, they must have been a part of the res gestæ. If, on the other hand, they were made before the performance was undertaken, or after it was completed, or while the agent was not engaged in the performance, or after his authority had expired, they are not admissible." As to what is embraced within the res gestæ, see section 715, and illustrations. .... |