Western Union Tel. Co. v. Baker

*214ON REHEARING.

THOMAS, J.

In the original opinion, to which we adhere, we disposed of adversely to the appellant every contention made by it in its application for rehearing. We do not deem it necessary to add anything to what we there said, except upon one proposition, which we there treated briefly, and as to which it may be well to amplify the discussion, with the view of preventing any misunderstanding, which appears to be the case with appellant’s counsel, as to our holding on that point.

(8) We there held that the trial court did not err in excluding certain answers of the witness Sims, appellant’s manager, touching conversations between him and appellant’s messenger boy relative to the delivery of the telegram to Baker, the sendee. The integrity of our holding will be demonstrated, we think, by setting out these several answers of the said witness Sims, appellant’s said manager, that were so excluded, and which are, respectively, as follows, to-wit:

(1) “And the boy .[meaning the messenger boy] returned to me [with the telegram undelivered] and told me he got the information at Smith’s grocery store that Bert Baker [the sendee of the telegram] was out of town, and had gone to New York, and that Smith’s store was the place where said Baker hung out, or that he had an office above Smith’s store.”
(2) “On the return of the boy and his report he was instructed to go around to all of the hotels and trace for Baker, and on his return he reported that he tried all the hotels and had failed to find him [Baker].”
(3) “It was my information that Mr. Baker’s headquarters were at Smith’s grocery store, or that he had an office above, and that when he was in town he could always be found at Smith’s grocery store; this information having been furnished me by the messenger boy.”

These several answers so excluded were admissible, appellant’s counsel contend, as a part of the res gestse of what was said and done in and about the effort to deliver said telegram and for the purpose of showing good faith on the part of appellant’s servants or agents in such effort, and thereby of negativing the implication of wanton or willful injury arising, so we 'held in the opinion, as an inference from plaintiff’s evidence. It was upon this theory of res gestse that the court properly per*215mitted the messenger boy himself to testify as a witness for defendant, not only as to all he did in trying to deliver said telegram, but also as to all information, though it was mere hearsay, he gained from others, while so doing, as to the hanging-out place and present whereabouts of ■ the sendee; for instance, he testified that he was informed by Mr. Smith that the sendee was not in town, but was in New York, and that then he (the messenger boy) went around twice to all the hotels in town inquiring of the clerks for the sendee, and that each and all informed him that they did not know Baker, the sendee, or his whereabouts. Suppose these statements of the boy were untrue (which, of course, was for the jury to say, as was held in the opinion) — that is, suppose that the boy did not make the inquiries, nor receive the information claimed, or that, if received, he knew it was false, and that, instead of doing what he claimed he did towards delivering the telegram, he willfully or wantonly made no effort at all to deliver it, as was the case in P. T.-C. Co. v. Nail, 12 Ala. App. 317, 66 South. 903—would not the defendant company, under the facts and circumstances proved by plaintiff as stated in the opinion, be liable for willful or wanton injury, just as it would for the negligence of the boy, and this notwithstanding the boy may have falsely reported to the manager to the contrary and in accordance with what the manager claims, in the answer excluded, was reported, and notwithstanding the manager may have honestly believed said reports?

The defendant company had a right, it is true, to show inferentially by proper evidence the good faith of each, the manager and the messenger boy, since the company was equally as liable for the willful or wanton misconduct of each as for the negligence of each in failing to deliver said telegram; and, while the good faith of either may be predicated upon information, if honestly believed, imparted by others, for whose acts the company is not liable, as to the whereabouts and location of the sendee, although that information is mere hearsay and is false, yet the good faith of neither can be predicated upon supposedly correct information received from the other when the other knows it to be false, because the company is as much liable for the act of the one as for the act of the other. Hence, if the messenger boy had not, in fact, been informed, as he claimed to the manager he had been, as to the hanging-out place and whereabouts of the sendee, and had not, in fact, made the efforts, as he *216reported to the manager he had made, to deliver the telegram to the sendee, the manager’s belief in such claim and reports would be immaterial. It seems to us axiomatic that the good faith of one agent cannot be predicated upon the bad faith — the false statements — of another agent, when the principal is as liable for the act of the one as for the act of the other. If so, the proposition would logically lead to this absurdity: The good faith of the manager could be predicated upon false statements of the boy, and the good faith of the boy could be predicated upon false statements of the manager, and, each having acted in good faith on false information imparted by the other, the principal would not be liable for punitive damages. Where false information is relied on by either agent as a basis for honest belief and good intentions, it must, it seems to us, have emanated from persons for whose negligence or bad faith in imparting it the principal is not responisble. Each agent is a part of one and the same legal entity — the principal — and to permit the introduction in evidence of secret conversations between such agents to be received as evidence of the good faith of the principal whom they each represent would not only be wrong in principle, but would open-a wide door to fraud; would be equivalent, it seems to us, to allowing the principal to testify to his own secret mental operations with respect to the matter involved in the conversation ; would be equivalent to allowing the principal to testify to a dialogue that took place between the faculties of his own mind.

Under the doctrine of res- gestee, the manager might have been allowed to testify, as was the messenger boy, to any information he received, if any, from outside sources as to the hanging-out place and whereabouts of the sendee, and as to what he did or what the boy did, to his personal knowledge, in trying to locate such sendee. This would have been admissible, just as was the boy’s testimony, as a part of the res gestee, and for-the purpose of showing good faith and negativing willful or wanton injury in failing to deliver said telegram. But we cannot subscribe to the doctrine that good faith, such as the law requires, can be rested upon what secretly transpired or took place between two agents of the principal, one of which, agents, the manager, was charged with the duty of seeing that the other, the messenger boy, delivered the telegram, and the other of which, the messenger boy, with the duty of delivering it.

So the material inquiry, as bearing on the question of good faith, is not what the boy may have said or reported to the man*217ager as to the information received by him from others as to the whereabouts of the sendee, and as to what he (the boy) had done towards delivering the telegram, but is: “Did the boy, in fact, receive the information mentioned, and did he, in fact, make the efforts claimed towards delivering said telegram? If he did not, then, even though he reported to the manager that he did, it would be entirely immaterial. If he did, then the fact that he did, and not the fact that he so reported to the manager, would be the material fact. In determining whether he did or not, it is not permissible that his testimony to the effect that he did be bolstered up by proving that, prior to testifying, and at the time of the transactions, he made declarations or reports to the manager which were in conformity with what he testified. Such a bolstering up would have been the only effect of permitting the excluded answers of the manager to remain in evidence, and the court therefore did not err in excluding them.