#### MOLLIE E. QUEEN et al. v. THE DIXIE FIRE INSURANCE COMPANY.

(Filed 3 January, 1919.)

■ 1. Insurance, Fire — Principal and Agent — Agent’s Statements — Amount of Loss — Res Gestae — Statutes—Evidence.

A statement of an agent acting for his company in writing fire insurance, made after an inspection of the property to be insured, is competent upon the question of the amount of the loss, in the action of the insured to recover upon the policy issued, especially as our statute, Revisal, see. 4755, requires that the insurer should know the true value of the property, etc., to be insured before issuing the policy thereon.

2.Insurance, Fire — Amount of Loss — Impeaching Evidence — Explanation-Trials — Questions for Jury.

Where property that has been allotted as a homestead has been insured against loss by fire, and suit has been instituted against the insurer to recover the loss, and the plaintiff’s exceptions to the value of the property so allotted has been introduced in evidence, showing that the value was claimed to be in a less sum than that demanded in the present action, it is competent for the plaintiff to explain that it was done to gain time and pay the debt, its credibility or weight being questions for the determination of the jury.

Action tried before Lane, J., and a jury, at May Term, 1918, of Haywood.

The action was brought by the plaintiff to recover the amount of an insurance policy, or the sum of $2,150, issued by the defendant upon her dwelling-house, barn and household and kitchen furniture, and other personal property in the house. Her house was destroyed by fire in May, 1917.

The jury returned the following verdict

1. Did the defendant, the Dixie Fire Insurance Company, execute and deliver to the plaintiffs the insurance policy, as alleged in the complaint? Answer: “Yes.”

2. Did the plaintiffs furnish to the defendant proof of loss as provided in said insurance policy after the destruction of the property by fire, as alleged in the complaint? Answer: “No.”

3. If proof of loss was not furnished by the plaintiffs as required by the terms of said insurance policy, was the same waived by the defendant? Answer: “Yes.”

4. What damage, if any, are the plaintiffs entitled to recover by reason of the loss of the house? Answer: “$1,800, with interest.”

5. What damage, if any, are the plaintiffs entitled to recover by reason of the loss of the personal property? Answer: “$350, with interest.”

*356. Are tbe plaintiffs tbe owners of tbe personal property described in tbe complaint? Answer: “Yes.”

Judgment was rendered on tbe verdict, and tbe defendant appealed.

Morgan & Ward and John M. Queen for plaintiffs.

F. F. Alley and Brooks, Sapp & Kelly for defendant.

Walker, J.,

after stating tbe case: Tbe first exception was taken to tbe declaration of Tburman Williams, agent of tbe defendant company, as to tbe value of tbe bouse, wbicb was that it would cost ber three thousand dollars to build such a bouse. He was then tbe local agent of tbe company, and was soliciting tbe insurance and preparing to issue tbe policy. He went to plaintiffs’ borne and examined tbe bouse, and while engaged in this business for tbe company and in tbe course of tbe transaction be stated to Mrs. Queen that it would cost three thousand dollars to build it. We do not see why this evidence was not competent.

Tbe company contested tbe value placed upon tbe property at tbe trial. Mrs. Queen bad testified that tbe bouse was worth at least three thousand dollars at tbe time it was burned. Tbe books make a distinction between acts and declarations, or statements, wbicb constitute part of tbe res gestee, and those of an agent who is acting for bis principal and within tbe scope of bis agency.

Tiffany on Agency says, at p. 252: “Every act or event is set about by surrounding circumstances, or circumstantial facts, wbicb ‘may consist of declarations made at tbe time by participants in tbe act, or other acts done, of tbe position, condition, and appearance of inanimate objects, and of other elements wbicb serve to illustrate tbe main act or event.’ Subject to not very well-defined limitations, such circumstances may be proved as part of tbe thing done — tbe res gesta, or, as it is commonly put, tbe res gestae. Such declarations comprise statements, exclamations and other utterances by tbe participants in tbe act. They, are received on tbe ground of their spontaneity. ‘They are tbe ex tempore utterances of tbe mind under circumstances and at times when there has been no sufficient opportunity to plan false or misleading statements; they exhibit tbe mind’s impressions of immediate events and are not narrative of past happenings.’ Such-declarations constitute an exception to tbe hearsay rule. To be admissible they must be made while tbe act is being done or tbe event happening, or so soon thereafter that tbe mind of tbe declarant is actively influenced by it. Tbe eases are not in accord as to tbe extent of tbe time wbicb tbe res gestes cover, and indeed tbe time necessarily depends more or less upon tbe circumstances of each case.” It will be seen that this refers to tbe admission *36or declaration of a person, whether an agent or not, which was made while the transaction was going on, and in which he was a participant, for it is said that “if a declaration is admissible as a part of the res gestee it is competent, no matter by whom said.” Tiffany, p. 254; Ohio, etc., Ry. Co. v. Stein, 133 Ind., 243, per Elliott, C. J.

As to the statement of an agent, “It is commonly said that the statement must be made while the agent is engaged in transacting some authorized business, and must be so connected with it as to constitute part of the res gestee. But The Latin phrase adds nothing’; it is used here as an equivalent expression for the business on hand or the pending transaction, as regards which for certain purposes the law identifies the principal and the agent. ... If the requirement that the statement be made as part of a pending transaction, as explained, be fulfilled the nature of the transaction is immaterial and the admission may be of a present or of a past fact. While the statement of an agent in negotiating a contract may constitute the agreement of the principal or an inducement to the contract, and thus form the basis of an action upon the contract, or for deceit, a statement made by the agent in the negotiation in regard to the subject-matter may also be "used against the principal as an admission in an action not based upon the contract or the statement.” Tiffany, p. 249. See, also, Smith & Melton v. R. R. Co., 106 N. C., 105; Darlington v. Telegraph Co., 127 N. C., 68-107.

By our statute (Revisal, sec. 4755) an insurance company cannot issue a policy upon property within this State for an amount which, together with any existing insurance thereon, exceeds the fair value of the property, so that it is necessary that the company, before it issues a policy, should know the true value of the property to be insured; and this agent was there for that purpose and was negotiating in behalf of his company for the insurance and preparing to issue the' policy, for which purpose he was inspecting the property in order to ascertain its value, and it was while he was thus engaged for the company that he made the statement to which the objection was taken. The declaration was competent as part of the thing done within the rule we have stated. Stanford v. Grocery Co., 143 N. C., 419; Merrill v. Dudley, 139 N. C., 57. The principle is lucidly stated and illustrated in V. & M. R. Co. v. O’Brien, 119 U. S., 99 (30 L. Ed., 299); N. J. St. Co. v. Brockett, 121 U. S., 637 (30 L. Ed., 1049), and notes.

It is immaterial to decide whether it was competent as the declaration of an agent while engaged in his principal’s business and within the scope of his employment as the other is a sufficient ground for its admission.

The defendant introduced thé papers containing Mrs. Queen’s exceptions to the allotment of her homestead, showing that she had valued her *37property at less than sbe now claimed, and sbe was tben asked by ber counsel wby sbe bad filed exceptions alleging a lower value, and sbe answered tbat it was done to gain time so tbat sbe could pay tbe debt and save ber property. A witness may explain ber acts, as shown by testimony offered against ber, and it is for tbe jury to say wbat credit or weight should be given to tbe explanation. It was held in Armfield v. R. R. Co., 162 N. C., 24 at 28, tbat when a witness is impeached by evidence of bad character,or by evidence of contradictory statements made by him, confidence in bis veracity and in tbe credibility of bis testimony may be restored or strengthened by any proper evidence which tends to produce tbe desired effect. Tbe very question was decided in Phifer v. Erwin, 100 N. C., 59, where it was held: “Where a witness, on bis examination upon a second trial, gave bis opinion tbat tbe value of the property in controversy was greater than tbe amount be bad testified to on a former trial: Held, tbat be might state tbe reasons for tbe changes by way of explanation.” While tbe explanation was not very reassuring, we cannot say it altogether lacked plausibility or force. Tbe jury seemed to have accepted it as satisfactory, as they gave ber tbe full amount of ber policy, or wbat sbe claimed, and tbe verdict is not without support in tbe evidence. There was testimony tbat tbe agents of tbe company, tbe adjuster and another, promised tbat tbe policy would be paid.

Tbe other exceptions, which are merely formal, are without any merit.

No error.