Thomas Kelly, Respondent, v. Jesse Morehouse, Appellant

Thomas Kelly, Respondent, v. Jesse Morehouse, Appellant. Negligent feeding of applies to a cow—declarations of an agent, not made within the scope of her authority, nor apart of the res gestas. In an action brought to recover damages for the death of a cow, shown to have resulted from suffocation caused by her attempting to eat an apple fed to her by an agent of the defendant, who had contracted to take care of her, a declaration of the defendant’s agent, made some time after the death of the cow, that apples had been fed to her, and that the agent “ thought some of them were frozen,” is inadmissible—not having been made by the agent while acting within the scope of, her authority, and being too remote in point of time to. constitute a part of the res gestee. Appeal by the defendant, Jesse Morehouse, from a judgment of the County Court of Seneca county, entered in the office of the cleric of the county of Seneca on the 10th day of August, 1897, upon the decision of the court rendered after a trial at a Special Term of said court affirming the judgment of a justice of the peace. H. A. Carmer, for the appellant. W. S. MacDonald, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : This action was brought to recover damages for the negligent killing of a cow by feeding her improper food while she was in the. custody of the defendant. Upon the trial the evidence tended to-show that the plaintiff was the owner of the cow in question ; that, in January, 1897, he left her with the defendant under a contract for her cafe and keeping at a stipulated price per week; that by the terms of this contract the cow was to run about the straw stack in the barnyard of the defendant’s farm, with the assurance by the defendant that she would be all right and would not be hurt. The defendant did not occupy the farm himself, but the same was carried on by a Mrs. King and her daughter as the defendant’s agents. Some ■ two or three weeks after the cow had been taken to the farm she was fed some apples by the daughter, one of which lodged in the animal’s throat, causing her to die from suffocation. The action was originally brought in a Justice’s Court, and a recovery was had upon the theory that the death of the cow was attributable to the negligence of Miss King in feeding her the apples, it being claimed that some of the apples were frozen and that the one which caused the animal’s death was in that condition. The evidence of negligence was, even if entirely competent, exceedingly slight, and we entertain serious doubt whether it was sufficient to sustain the recovery ; but, however that.may be, we are satisfied that the judgments "of the courts below must be reversed because of the admission of improper evidence upon the trial. The only evidence which had any tendency whatever to establish negligence upon the part of the defendant was that of a witness by the name of McGraw, who testified that, at the instance of the plaintiff, and subsequent to the death of the cow, he sought an interview with Mrs. King and had a conversation with her, in which, after admitting that apples had been fed to the cow, she stated that “ she thought some of them were frozen.” This statement was but the declaration of an agent, not acting within the scope of her authority, made after tlie transaction to which it related and at. a period too remote therefrom to permit its being regarded as a part of the res gesta. Inasmuch as the question of its competency was properly raised, we are clearly of the opinion that the admission of the testimony presents error which requires a reversal of the judgments below. (First National Bank v. Ocean Nat. Bank, 60 N. Y. 278; Furst v. Second Ave. R. R. Co., 72 id. 512.) Other errors were committed by the justice, notably in admitting several answers to questions propounded to the" expert witnesses called on behalf of the plaintiff, but having reached the conclusion that the judgments must be reversed for the reason above stated, we do not deem it necessary to discuss°the case further. The judgment of the County Court and of the Justice’s Court should be reversed, with costs to the appellant. Judgment of the County Court and of the Justice’s Court reversed, with costs.