The testimony of the witness Robert Sprinkles shows that what he said and did shortly preceding the accident was before he saw the approaching automobile. To quote his testimony:
"I heard the car coming before they got in sight. I moved when I heard it."
The following proceedings were then had:
"Q. Did you make any remarks? A. Yes, sir, I told the boys that was sitting there with me —
"Mr. H. H. Smith: I object to any remark he may have made.
"Sustained.
"Mr. H. T. Smith: I expect to show he heard the car coming and he made the statement if the car came around the curve at that speed, and running —
"The Court: I will withdraw my ruling, and let you ask the question.
"Mr. H. H. Smith: The Defendant excepts.
"Q. What remark did you make? A. I told the boys we had better move, that that car could not make that curve at that speed.
"Mr. H. H. Smith: I move to exclude the answer of the witness on the grounds that it is irrelevant, incompetent and immaterial, and hearsay.
"Motion refused. Exception." (Italics supplied.)
This was no part of the transaction under investigation, but the mere declarations of a bystander in no way connected therewith, and tended to illustrate nothing more than the feeling and deliberate judgment of the declarant as to the situation, and was mere hearsay. Alabama City, G. A. Ry. Co. v. Heald et al., 178 Ala. 636, 639, 59 So. 461; Konidaris v. Burgess, 223 Ala. 512, 137 So. 303; Bessierre v. Alabama City G. A. R. R. Co., 179 Ala. 317, 60 So. 82; Birmingham A. Ry. Co. v. Campbell, 203 Ala. 296, 82 So. 546.
To bring the acts and declarations of a third person or bystander, who is in no way connected with the transaction, within the res gestae, "There must be no fair opportunity for the will of the speaker to mould or modify them. His will must have become and remained dormant, so far as any deliberation in concocting matter for speech or selecting words is concerned. * * * His declarations must be the utterance of human nature, of the genus homo, rather than of the individual. Only an oath can guarantee individual veracity; but spontaneous impulse may be a sufficient sanction for the speech of man, as such, man as distinguished from this or that peculiar man. True, the verbal deliverance in each instance is that of an individual person; but if the state of his mind be such that his individuality is for the time being suppressed and silenced, so that he utters the voice of humanity rather than of himself, what he says is regarded by the law as in some degree trustworthy." Travelers' Insurance Company v. Sheppard, 85 Ga. 751, 776-777, 12 S.E. 18,27; Alabama City, G. A. Ry. Co. v. Heald et al., supra; Bessierre v. Alabama City G. A. R. R. Co., supra; Harbour v. State, 140 Ala. 103, 37 So. 330. I am therefore of opinion that the court erred in admitting this testimony.
I am further of opinion that under the facts of this case the court erred in overruling the *Page 348 motion to exclude the testimony going to show that notwithstanding this lawsuit the plaintiff and defendant were on friendly terms. The sole effect of this testimony was to give the jury to understand that some one other than the defendant was to pay the damages, if any were recovered.
I am further of opinion that the question of agency on the part of Kelly was one of fact for the jury, and not of law for the court.
I am further of opinion that special charge 6, given at plaintiff's request, assumes negligence on the part of Kelly, and when taken with the oral charge amounted to the affirmative charge for plaintiff.
Much might be said in criticism of the oral charge of the court, but further discussion would be of no avail. I think the judgment should be reversed, and therefore respectfully dissent.