#### MRS. CELESTE S. STALEY v. ROYAL PINES PARK, Incorporated, and FRED SEEL.

(Filed 27 January, 1932.)

1. Pleadings D d — Demurrer on ground that complaint does not state cause of action may he interposed at any time.

A demurrer to the complaint on the ground that the complaint does not state a cause of action may be interposed at any time, even on appeal to the Supreme Court, but the demurrer is overruled in this case, the complaint sufficiently alleging a cause of action for actionable negligence.

2. Evidence D a — Competency of testimony as a part of the res gestse.

In order for a declaration to be admissible as a part of the *res gestee*it is necessary that the act itself should be admissible apart from the declaration that accompanies it, that the declaration should be uttered simultaneously, or almost simultaneously, with the occurrence of the act, and that it should be in explanation of the act.

*1563. Same — Evidence in this case held not competent as being a part of the res gestee.

Where the plaintiff is injured by falling down a flight of stairs leading to the “ladies rest room” in an amusement park and brings action against the owner thereof alleging that the stairs were not in a reasonably safe condition, a deposition of the plaintiff to the effect that the one who had given her. permission to use the stairs had said after the accident that he was sorry and that they had intended to fix the stairs, is improperly admitted in evidence as a part of the *res gestee,*the act of giving permission not being such an act, exercised simultaneously with the injury, as the term *res gestee*implies, and the declaration being made after the injury and the plaintiff failing to establish that it was made within the time necessary to constitute a part of the *res gestee,*and it not being of a subsisting fact but an expression of a preexisting state of mind.

4. Evidence G b — Testimony in this case held not competent as being of declaration against interest.

The power to make declarations against the interest of a company cannot be inferred as incidental to the duties of a general agent in charge of the current dealings of the business, and where declarations of a “person in charge” of the business are sought to be introduced in evidence and there is no evidence of the scope of the agent’s authority, the admission of the evidence against the company as a declaration against its interest is reversible error, the burden being upon the plaintiff to establish the competency of this evidence.

Appeal by defendants from *McBlroy, J.,*at May Term, 1931, of EüNcombe.

New trial.

*Galloway & Galloway for plaintiff.*

*Bourne, Parker, Arleclge & DuBose for Boyal Pines Parle, Ing.*

Adams, J.

Tbis action was instituted to recover damages for personal injury suffered by tbe plaintiff. Pleadings were filed, tbe cause came on for bearing, and tbe jury answered tbe issues of negligence, contributory negligence, and damages in favor of tbe plaintiff. Judgment was rendered on tbe verdict, and tbe defendants appealed.

In tbis Court tbe Royal Pines Park, Inc., moved to dismiss tbe action for tbe alleged reason that .tbe complaint does not state a cause of action. Tbis is one of tbe two grounds of demurrer wbicb may not be waived but may be interposed at any time, even on appeal to tbe court of last resort. *Hunter v. Yarborough,*92 N. C., 68; *Halstead v. Mullen,*93 N. C., 252. But tbe motion must be denied. Tbe complaint states facts wbicb are sufficient to constitute a cause of action; and tbe evidence is not so meager as to require a dismissal of tbe action.

Tbe plaintiff is a resident of Florida; tbe defendant Seel is a resident of Buncombe County; and tbe Royal Pines Park, Inc., is a corporation organized under tbe laws of North Carolina. Tbe plaintiff alleges *157tbat tbe defendants for profit operated a playground for tbe amusement and entertainment of tbe public; tbat sbe went upon tbe premises and was given permission to use tbe “ladies’ rest room,” to reach wbicb it was necessary for ber to go down a flight of steps; tbat tbe carpet on tbe top steps bad worn away; tbat tbe bare steps bad become “slick, worn, water-soaked, slippery, very dangerous” and were not “in a reasonably safe condition”; and tbat in going down tbe steps sbe fell and was injured by reason of tbe defendants’ negligence.

Tbe plaintiff’s deposition was offered in evidence and to tbe 'admission of tbe following part of it tbe defendants excepted: Q. Was anything said to you by any one after you bad received tbe fall you have just described? A. Yes. Q. What was said and by whom? A. Tbe man in charge of tbe premises who bad given me permission to, use tbe ladies rest room came to where I was at tbe foot of tbe steps and said, “I am awfully sorry tbat you got hurt. We bad intended to fix tbat carpet, but have just neglected to do so.”

This evidence was improperly admitted unless it was competent either as a part of tbe *res gestee*or as a declaration against interest.

As a rule tbe law subjects to two tests all testimony submitted to a jury: tbe sanction of an oath and an opportunity for cross-examination. One of tbe exceptions to tbe rule admits declarations wbicb constitute a part of tbe act, usually described as *res gestee. S. v. Dula,*61 N. C., 211. Such evidence is admissible under tbe following conditions: There must be (1) an act in itself admissible in tbe case independently of tbe declaration tbat accompanies it; (2) a declaration uttered simultaneously, or almost simultaneously, with tbe occurrence of tbe act; and (3) tbe explanation of tbe act by what is said when it happens. Tbe declaration is not admissible unless tbe act wbicb it characterizes is in itself admissible. So, tbe first inquiry is whether there is any evidence tbat tbe declarant did anything so. closely related as to become a necessary incident of tbe litigated *act*— i. *e.,*tbe alleged negligent injury.

Tbe record discloses no sufficient evidence to this effect. Tbe one to whom sbe applied merely gave tbe plaintiff permission to use tbe room, and bis permission was nothing more than bis formal consent; it was in no sense such exertion of power, exercised simultaneously with tbe injury, as tbe term *res gestee*implies. Tbe time when tbe leave was granted or when tbe plaintiff availed herself of it is a matter of speculation. There is, therefore, no evidence of such an act by tbe asserted agent or employee of tbe defendants as is prerequisite to tbe admission of tbe proffered declaration. *S. v. Dula, supra.*

Furthermore, tbe plaintiff testified tbat tbe alleged declaration was made after tbe injury. This is indicated by ber counsel’s question. How long afterwards is not shown. Declarations are not admissible as *res*
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      *gestee*unless made during tbe course o£ tbe main transaction or in connection with it immediately thereafter. *Bumgardner v. R. R.,*132 N. C., 438; *S. v. Peebles,*170 N. C., 763; *Batchelor v. R. R.,*196 N. C., 84. Let us concede, as suggested in *S. v. Spivey,*151 N. C., 676, and *S. v. Bethea,*186 N. C., 22, that tbe *res gestae*cannot be arbitrarily confined within any limit of time; still in considering tbe defendants’ exception we cannot infer, in tbe absence of evidence on tbe point, that the declaration was made within such period as would justify its admission. That was a matter of proof, and it was incumbent upon tbe plaintiff to establish her case upon competent evidence.

It may be noted, in addition, that tbe declaration relates, not to a concomitant act, but to a purpose previously entertained. In form it is narrative; it does not characterize a subsisting fact; it deals with tbe past; it purports to express a preexisting state of mind.

For tbe reasons given we conclude that tbe evidence was not competent as pars *rei gestae. Simon v. Manning,*99 N. C., 327, 331; *Queen v. Ins. Co.,*177 N. C., 34.

We are also of opinion that it is not competent as a declaration against interest. There is no proof that tbe person who made tbe statement is tbe defendant Seel; tbe question is whether tbe statement made by tbe person who is in charge of tbe premises is binding on tbe defendants. Evidently it was not. It was said in *Smith v. R. R.,*68 N. C., 107: “Tbe power to make declarations or admissions in behalf of a company as to events or defaults that have occurred and are past, cannot be inferred as incidental to tbe duties of a general agent to superintend tbe current .dealings and business of tbe company.” This principle is appli- cable even if “tbe person in charge” was, as tbe plaintiff contends, tbe general agent of tbe defendants; but there is an impressive absence of evidence as to tbe scope of tbe agent’s authority. *Wallace v. R. R., 70*N. C., 178; *Pope v. R. R.,*88 N. C., 573. For error in tbe admission of evidence there must bo a new trial.

New trial.