*438On Rehearing.
The following statements in appellants’ motion for rehearing have prompted us to make further brief comment on the record: (1) “Appellee was not disputing the fact that Mrs. Edwards fell, nor was it disputing as to the place where she fell * * (2) “The Appellee stated in open court that it was not questioning the authority of Tortoris, and stated that its objection was not based upon the question of whether or not this was an admission of an agent, and made clear at the time of the trial that its objection was on the proposition that the statements or actions of Tor-toris. could not be an admission simply because they were not against interest.” (3) “In effect, the court is affirming the judgment of the trial court on a point which was not even involved in the court below nor is it involved here.” (4) “That the things which this court apparently regards as harmful or objectionable in the testimony were removed from dispute by open court statements of counsel for the appellee wherein he stated that the appel-lee was not contesting or questioning the authority of Tortoris, nor was it questioning the fact that Mrs. Edwards fell.”
It is true that defense counsel stated in the trial court that he was not contending that Mrs. Edwards did not fall, and in our original opinion we treated her fall as a proven fact. We find nothing in the record, however, to support appellants’ contention that appellee was not “disputing as to the place where” Mrs. Edwards fell. The appellants have not directed our attention to any agreement between counsel, or to any admission by the appellee, that Mrs. Edwards fell at any particular place, nor has a careful search of the record disclosed anything that could be construed as such an agreement or admission. The plaintiffs were under the burden of proving not only a defect in the floor, but causal connection between such defect and Mrs. Edwards’ fall and injuries. The record discloses nothing that was said or done by defense counsel which could be construed as minimizing that burden. On the contrary, from the beginning and throughout the trial,,, defense counsel, by repeated objections, insisted that the plaintiffs be required to make out their case by legal and competent evidence. In addition, defense counsel stated in open court that one of his main reasons for being so insistent upon his objections to the hearsay testimony was that he anticipated that the hearsay would fix the place of Mrs. Edwards’ fall at a different location from that at which Mrs. Edwards herself had fixed it when testifying on deposition. In this state of the record, it would be presumptuous in the extreme for us to say that the rules of evidence should have been relaxed and inadmissible evidence admitted because the evidence bore only on an issue which was undisputed.
We find of record only two statements by defense counsel which even tend to support the second of appellants’ allegations as above set out. The first of these was the following: “Any statements made by any agent or any proper representative of the defendant can be taken as an admission against interest is an exception to the general rule that hearsay is not permitted, but a statement that is not an admission against interest, but merely whether they were there, something of that nature, unless it is an admission against interest, is still hearsay and as such is not admissible.” This statement was made by way of argument to the court in support of an objection that a question which had been propounded by plaintiffs’ counsel called for hearsay. At the particular stage of the proceedings, Mr. Tortoris had not been identified as a person to whom the witness Edwards had talked. The latter had merely testified that he talked to two men in the defendant’s store. He had also testified to certain circumstances tending to show that these two men were employees of the defendant. He was then asked the following question: “And did these men indicate to you that they had been there the afternoon before ?” At this point defense counsel made objection that the question called for hearsay, and the above statement followed. As already remarked, the statement was made *439by way of argument in support of the objection. The obvious intent of defense counsel was to convey the thought that even though one of the recognized exceptions to the hearsay rule is that in some circumstances admissions of an agent may be admissible against his principal, the particular testimony sought to be elicited in this instance could not come within such exception, because it could not qualify as an admission. There is nothing in the statement which can be construed as an admission that Mr. Tortoris was authorized to speak and act for the defendant in the respects about which the witness later undertook to testify. The actual objection which had been made to the proposed testimony was the matter before the court to be ruled on. The not-altogether-accurate statement of law made in connection therewith by defense counsel, by way of argument and illustration, was in the nature of surplusage. It was not binding on the defendant in other circumstances at later stages of the trial.
The other statement by defense counsel to which we referred occurred after Mr. Tortoris had been identified as one of the two men to whom Mr. Edwards talked in defendant’s store. The witness Edwards had been asked: “Did he [Tortoris] indicate to you that he was there when your wife fell the day before ?” Defense counsel had again objected to the question as calling for hearsay. The following then passed between Mr. Mehaffy, counsel for the defendant, and Mr. Sample, counsel for plaintiffs:
Mr. Sample: “He made his original objection, Your Honor, which was [that] there was no showing that this man he talked to was an employee of the company.”
Mr. Mehaffy: “I pass over that because there was a man Tortoris there, I pass over that.”
Mr. Sample: “He was an employee of the Company, was he ?”
Mr. Mehaffy: “Sure he was. I am not going to be technical about that. I could have objected to that he hasn’t met the burden of proof that Tortoris was an agent, servant and employee of the company, acting in the scope of his employment, but that is a technical objection. My objection now goes to the entire merits of the thing. Let’s assume that Tortoris was an employee of defendant and on duty at the time. Nevertheless that was hearsay. The testimony now is what Mr. Edwards said Tortoris said. There is no showing that it falls within any exception to the hearsay rule.”
We are unable to see in these statements of defense counsel an admission that Mr. Tortoris was authorized to act and speak for his employer in respect to the matters about which Mr. Edwards undertook to testify. The objection which defense counsel had made and the foregoing statements themselves were to the contrary. The statement amounted to nothing more than an admission that Mr. Tortoris was an employee of the defendant and on duty at the time Mr. Edwards talked to him. ’ It was in no sense an admission that he was authorized to make admissions on behalf of his employer regarding Mrs. Edwards’ fall. In our original opinion we treated of Mr. Tortoris as an employee of the defendant and as manager of the latter’s rug department on the floor where Mrs. Edwards fell. Once again it was the objection which had been made that was before the court to be ruled on, and it raised the question of Mr. Tortoris’ particular authority.
We adhere to the views expressed in our original opinion; and with the foregoing additional explanation of the record’ that is before us, the appellants’ motion for rehearing is overruled.