I dissent from the additional opinion of Judge HUMPHREYS on rehearing to the effect that the testimony of Max Fry was collateral. Max Fry testified that, after the accident to Lawson Bobbitt, Clint Green in the presence of P. C. Tucker told the witness that if he would admit that he put the foreign wire there which caused the accident and pay a small fine, the appellant would pay the fine for him.
It seems to me that this testimony was admissible as tending to be an admission on the part of appellant that it or one of it's servants, had been guilty of negligence and was endeavoring to shift that negligence to another person who was not in its employment and for whose acts it was not responsible. P. C. Tucker was the regular claim agent of appellant, and as such made an investigation of the accident. When he went to examine the boys of the Industrial School, he took Clint Green with him. He testified that the latter was talking and acting for the company on that occasion. This to my mind made the company responsible for what Clint Green did in the premises. It is true that Tucker was asked if he did not hear Clint Green tell Max Fry that, if he would admit that he had put the wire there and pay a small fine for it, the company would pay the fine, and he answered no. If the testimony was admissible, the fact that Tucker answered "No" to the question would not make it collateral. *Page 1028
I do not think it is sound to say that if a party to an action attempts to prove a fact which is competent by a witness, he is concluded from proving that fact because the first witness asked with reference to that fact or alleged fact answered in the negative. It is admitted that Tucker was the regular claim agent of the company, and as such it was made his duty to investigate the accident. According to his testimony Clint Green was his assistant, and on the occasion in question was talking and acting for the company. Then he had as much apparent authority in the premises as Tucker. I do not think it is in any sense a sound proposition of law to say that a claim agent of a corporation can attempt to induce a witness to testify that he was responsible for a certain act of negligence, instead of the company or its servants, and then allow the company to escape the responsibility of such act or conduct.
In this connection it may be stated that the majority opinion virtually concedes that I was correct in my dissenting opinion of the analysis of the instructions and I repeat that a simple comparison of the instructions in question shows this to be true.