(dissenting).—“When the act of a party is admissible in evidence, his declarations at the time explanatory of that act are also admissible as a part of the res gestae. This class of evidence is generally regarded as original evidence.”—Lake Shore, etc., R. Co. v. Herrick, 49 Ohio. St. 25. 29 N. E. 1052; 15 Amer. & Eng. Ency. Law, p. 315, subd. C. In this case the act of Jones—the fact that he was at a particular time, in possession of the automobile—-was, admittedly, material evidence, and it seems clear that his declara*594tions made at the particular time explanatory of that act was admissible, not as hearsay, but as original evidence. In this case the complaint charges, in express terms, that the plaintiff’s intestate was killed by an automobile which belonged to the defendant. Neither the defendant nor Jones was in the automobile when the plaintiff’s intestate met his death. That the plaintiff’s intestate came to his death through the culpable negligence of the chauffeur was'not questioned. If Jones owned the automobile, then the defendant is not liable. The defendant’s ownership of the automobile Avas therefore, under the very language of the pleadings, the only real question Avhich was actually litigated in this case.
“The occupation of land” (and the same rules apply to the possession of personal property) “is, merely as a physical act, capable of various interpretations, and may need to be completed by words in order to have legal significance! What a mart says when he does a thing shoAvs the nature of the act and is a part of the act.”—1 Greenleaf on Evidence, § 108.
“The samé rule prevails, in its utmost extent as to. personal property. Thus, on appeal between tAvo towns, contesting the settlement of a negro, it seems that the declarations of a person [and this person was not a party to the suit] made in respect to his title to the negro, while in possession of the negro as a slave, are receivable in evidence.”—1 Phillips on Evidence (CoAven & Hills and Edwards notes), p. 197.
The rule laid down by this court in Tompkies et al. v. Reynolds, 17 Ala. 109, cited by Mr. Justice Satre in the opinion Avhich has been adopted by a majority of this court, is perfectly sound, in no Avay conflicts with the views above expressed, and, in my opinion, has nothing to do with the question now in hand. In this case the OAvnership of the automobile Avas directly in issue. The *595chauffeur in charge of the automobile was not the defendant’s chauffeur if the automobile belonged to Jones. That is an uncontroverted fact. In the case of Tompkies, et al. v. Reynolds, supra, this court calls attention to the fact that ownership was not material to any issue involved in the case, and that the rule was invoked in the case, and that the rule was invoked simply as a cloak to get in before the jury a self-serving declaration of one of the parties to- the cause. In that case the court says: “The material fact was not whether he” (Hardy, a party to the cause) “had actually had possession of the notes, or whether he handed them to the witness, but whether the contract was binding upon the firm. The plaintiff did not seek to show that the contract was binding on the firm because Hardy had possession of the notes, or because he handed them to the witness, but this proof was introduced by the defendant Hardy himself, and to permit him to introduce his own declarations in connection with a fact not relied on by the plaintiff, nor connected with the material fact'involved, would be to enable a defendant to make his own declarations evidence in his favor, when the fact with which they are connected is not-brought out by the plaintiff, nor the ground on which he is sought to be charge.”
In the instant case the plaintiff sought to fasten liability upon the defendant by showing that his intestate was run over and killed by an automobile belonging to the defendant through the negligence of her chauffeur and while that chauffeur was acting within the line or scope of his employment. The defendant claimed that the automobile did not belong to her, but that it belonged to Jones, and she offered to prove that Jones, before the cause of action arose, was in the actual possession of the automobile claiming it as his own. She offered *596no declaration of her own, but did offer the declaration of a third party who was in possession of the automobile when he made the declaration and in whom there was evidence tending to show that the possession of the automobile continued from the time of the declaration sought to be introduced up to the moment of the death of plaintiff’s intestate.
As I understand it, the majority of this court are of the opinion that the real question in this case is: “For whom was the chauffeur acting at the time the plaintiff’s intestate was killed? Was he, or was he not, the defendant’s agent? If he was the defendant’s agent, then the defendant was liable. If he was not the defendant’s agent then the defendant was not liable.”
All the above is perfectly true, but the question of the ownership of the automobile is so bound up with this question of agency that, to use the language of this court in Tompkies, et al. v. Reynolds, supra, it is inseparably “connected with the material fact” (the agency of the chauffeur) “or inquiry under investigation” and in reality forms a part of that “material fact or inquiry under investigation.”
An illustration may fully explain my views: A hotel keeper has been accustomed to keep in connection with his hostelry a carriage and horses and a driver. The' carriage and horses have been kept on the hotel premises, and the driver has been accustomed to meet the trains with the carriage and horses and bring customers to the inn.. One day the carriage and horses and driver leave the hotel and take up their quarters in a livery stable. From that time forward, there is evidence tending to show that the driver and the carriage and horses act under the orders, not of the hotel keeper, but of the liveryman. Later on the driver of this carriage and horses recklessly drives the carriages and *597horses over a pedestrian. This pedestrian sued, not the livery keeper, but the hotel man, for damages, and alleges that he was injured by the carriage and horses of the hotel man, through the negligence of an agent, the driver, of the hotel man Avhile acting Avithin the line or scope of his employment. The hotel man introduces evidence tending to shoAv that, on the day the driver and the carriage and horses went to the livery stable, he sold the carriage and horses to the liveryman, and that on that day the liveryman hired the driver; that since that time the liveryman has been in the exclusive possession of the carriage and horses, and that the driver has been in the sole employment of the liveryman. It seems to be too plain to admit of argument that, under the circumstances named, the hotel man, as original evidence, Avould have the right to show, if he could, that, after the carriage and horses went into the possession of the liveryman and while they Avere thus in his possession, the liveryman said that they were his OAvn.
“What a man says when he does a thing shoAvs the nature of the act and is a part of the act.”—1 Greenleaf on Evidence, § 108.
I have examined, Avith much care, the authorities which have been cited by the majority of the members of this court in support of the position that they have assumed, but, in my judgment, they are not in point. We have, in my opnion, a plain rule of law which the trial court has violated, and for that reason, in my opinion, the judgment of the trial court should be reversed. The known certainty of a rule of law is, I am pursuaded, even more valuable than its wisdom, for the known certainty of the law, to use the language of Lord Coke, is the safety of all. I am also persuaded, to again use the language of Lord Coke, that to “fine and refine” upon a rule of law until its application becomes, to the aver*598age man, one of doubt, and perplexity, is more pregnant of evil than, if need be, to somewhat broaden it and apply it in cases where there may be some possible reason for doubt.
In this case the question of agency may have been of prime importance, but this question of agency rested upon the question of ownership. If the defendant did not own the automobile—if the automobile belonged to Jones—then the chauffeur was not the defendant’s agent. If the chauffeur was not the defendant’s agent, then the plaintiff was not entitled to recover. If the foundations of an edifice are -knocked from under it, the edifice fails to the ground. The ownership of the automobile was the foundation upon which rested the plaintiff’s case, for upon that rested the plaintiff’s theory that the chauffeur was the defendant’s agent and that she was therefore liable for his negligence.
2. Jones, it is true, took the stand and testified that at the time of the death of the plaintiff’s intestate the automobile belonged to him. This circumstance, I think, did not destroy the relevancy of the above evidence, nor do I think that it should have any weight with this court, in passing upon the above question. Pertinent evidence is always admissible. Its sufficiency is a question exclusively for the jury.—Alsabrooks v. State, 52 Ala. 24.
A statement by Jones, made prior to the day on which the plaintiff’s intestate was killed, and while he was in possession of the automobile, could not have been made with the view of aiding the defendant in this case. His testimony on the trial might have been given with the view of aiding her.