dissenting: Agency having been established either by proof or by admission, tbe declaration of tbe agent made in tbe course of bis employment and within tbe scope of bis agency and while be is engaged in tbe business (dum fervet opus) are competent as, in that case, they are, as it were, tbe declarations of tbe principal himself. Brittain v. Westall, 137 N. C., 30, and cases cited; Hunsucker v. Corbitt, 187 N. C., 496, 122 S. E., 378.
To be competent tbe statement must be made while tbe agent is engaged in transacting some authorized business and must be so connected with it as to constitute a part of tbe res gestee. It must be a part of tbe business on band or tbe pending transaction, as regards which for certain purposes tbe law identifies tbe principal and tbe agent. Queen v. Ins. Co., 177 N. C., 34, 97 S. E., 741; or it must be tbe extempore utterance of tbe mind under circumstances and at a time wben there *40bas been no sufficient opportunity to plan false or misleading statements — sucb statement as exhibits the mind’s impression of immediate events and is not narrative of past happenings. Tiffany on Agency, p. 252; Queen v. Ins. Co., supra; Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802, and cases cited.
Statements of an agent that are nothing more than a narrative of a past occurrence, Northwestern Union Packet Co. v. Clough, 22 L. Ed., 406; and which do not characterize or qualify an act presently done within the scope of the agency, Nance v. R. R., 189 N. C., 638, 127 S. E., 625, are, as against the principal, nothing more than hearsay and are incompetent. Brown v. Montgomery Ward & Co., 217 N. C., 368, 8 S. E. (2d), 199, and cases cited. See also Anno., 76 A. L. R., 1125; 20 Am. Jur., 510, sec. 599; Winchester & P. Mfg. Co. v. Creary, 116 U. S., 161, 29 L. Ed., 591.
A driver’s statement to a policeman, made before the person injured by his truck was taken away, that he was working for the defendant, Benfro v. Central Coal & Coke Co., 19 S. W. (2d), 766, or a chauffeur’s declaration that he was on a mission for his employer, is incompetent for “the act done cannot be qualified or explained by the servant’s declaration, which amounts to no more than a mere narrative of a past occurrence.” Frank v. Wright, 140 Tenn., 535, 205 S. W., 434. Likewise, a remark made by an automobile driver, immediately after returning to the place where he ran the car into a wagon and horses, that he was working for the defendant is hearsay and inadmissible for any purpose. Beville v. Taylor, 202 Ala., 305, 80 So., 370; see also Sakolof v. Donn, 194 N. Y. Supp., 580; Lang Floral & Nursery Co. v. Sheridan, 245 S. W., 467 (Tex.); and Moore v. Rosenmond, 238 N. Y., 356, 144 N. E., 639, which are to the same effect.
That such declarations are hea2’say and inadmissible in evidence is sustained not only by the text writers and decisions of other courts but by many decisions of this Court in addition to those heretofore cited. Cole v. Funeral Home, 207 N. C., 271, 176 S. E., 553; Smith v. R. R., 68 N. C., 107; Rumbough v. Improvement Co., 112 N. C., 751; Gazzam v. Ins. Co., 155 N. C., 330, 71 S. E., 434; Hubbard v. R. R., supra; Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 17, and cases cited.
Brittain v. Westall, supra, cited in the majority opinion, is likewise in point and sustains this position rather than the position there assumed.
It follows that the testimony as to declarations made by the defendant Griffin was incompetent and inadmissible as against the defendant Insurance Company. These declarations were made some time after the occurrence, and after police had arrived at the scene and after the removal of the deceased. They clearly come under the hearsay rule.
To sustain the conclusion that these declarations were admissible the *41majority opinion cites Smith v. Miller, 209 N. C., 170, 183 S. E., 370. Tbe opinion in this case is out of line with other decisions of this Court on this question. Even so, it is distinguishable. There the agent was driving the automobile of the principal, which automobile he habitually drove. Here the automobile belonged to the agent and not to the principal. Furthermore, it appears that the statement of the agent, which .was held to be competent, was made “immediately after the plaintiff was injured.”
The only other evidence offered by the plaintiff tends to show that Griffin was regularly employed by defendant Insurance Company to make collections, that he was within the territory assigned to him, that he had in his possession shortly before the accident an insurance collection book, that the accident occurred during working hours, and that he was driving his own automobile which he frequently used in making collections.
This evidence is insufficient to be submitted to a jury. It fails to show that the relation of master and servant existed between Griffin and the defendant at the time of and in respect to the very transaction out of which the injury arose — a fatal defect in plaintiff’s case. Robinson v. Sears, Roebuck & Co., 216 N. C., 322, 4 S. E. (2d), 889; Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503; Cole v. Funeral Home, supra; Van Landingham v. Sewing Machine Co., 207 N. C., 355, 177 S. E., 126.
There is no evidence that the defendant had any interest in or control over the automobile which belonged to and was being operated by Griffin. Neither is there testimony tending to show that defendant retained any right to say how he should travel in performing the duties of his employment. While he was regularly employed and the accident occurred during the day, there is no evidence tending to show that he was required to devote all of his time to his work or that he was not at liberty to regulate his own conduct and activities as best suited his own convenience and desires. There was no proof that defendant knew Griffin was using his automobile in covering the territory assigned to him other than such notice as may be implied from the testimony of three witnesses. Mrs. Fargas testified that he came to her house weekly “in a little Ford roadster.” Mrs. Albert testified that he came weekly “each time in an automobile,” and Malcombe Lee testified that “Mr. Griffin traveled by automobile in performing his duties.” So the questions arise: Was it the same automobile Griffin used in the performance of his duties? Where was he going? What was his mission — was it personal or did it relate to defendant’s business? The record fails to answer.
That he was at the time in the general employment and pay of defendant does not necessarily make the latter chargeable. Robinson v. Sears, Roebuck & Co., supra; Wyllie v. Palmer, 137 N. Y., 248; Bright v. *42Telegraph Co., 213 N. C., 208, 195 S. E., 391; Liverman v. Cline, 212 N. C., 43, 192 S. E., 849; Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096; Van Landingham. v. Sewing Machine Co., supra. Nor does tbe fact tbat be bad an insurance collection book in bis possession shortly before tbe accident, Tribble v. Swinson, 213 N. C., 550, 196 S. E., 820; Van Landingham v. Sewing Machine Co., supra, or tbat be was at bis place of employment during working hours, Robinson v. Sears, Roebuck & Co., supra, render tbe evidence sufficient to be submitted to a jury.
Tbe case of Barrow v. Keel, 213 N. C., 373, 196 S. E., 366, is easily distinguishable. It is true that in tbat case there was evidence tbat tbe agent at tbe time of tbe occurrence bad on bis person some checks “payable to persons in tbe vicinity of New Port,” who bad sold tobacco in tbe defendant’s warehouse the week before. However, this evidence alone was not held to be sufficient. It was admitted only as an incidental circumstance. Two witnesses testified in that case tbat they bad beard tbe master say be bad sent tbe agent on tbe very trip during which tbe accident occurred.
It is my view tbat tbe judgment of nonsuit should be sustained.
Stacy, C. J., and 'WiNbokne, J., concur in dissent.