In a petition for a rehearing counsel for the defendant urged that no competent evidence had been introduced tending to show that Jones himself had anything to do with the setting out of the fire. This contention had been made in the brief, but in such close connection with the claim that there was no evidence to connect the company itself with the fire that it escaped special attention. To give opportunity for an examination of this phase of the matter a rehearing was granted.

There was evidence that the fire started upon the land of the defendant and spread to that of the plaintiffs, but the only testimony tending to show what occasioned it was that of two witnesses, who said that on the morning the barn was burned they came to the scene of the fire, which was then about three hundred yards from the barn, and found Jones and another man trying to check it. They gave their assistance, but all efforts proved unavailing and the barn was destroyed. The substance of the evidence under consideration 425 was embodied in this question and answer, to which objections were duly made:

"Ques. I will ask you to tell the jury what, if any, statements were made by Mr. Jones at the time of the burning of the barn and while you were there with reference to the origin of the fire and the cause of its spreading? Ans. He told me he was burning off some weeds and rubbish in a draw that runs down on the northeast corner of the pasture and the fire broke over in the grass in the pasture and burned it off, which he wanted to burn off anyway, and that night he thought the fire was safe and went home, and the next morning he looked down there and saw the smoke, and riding down there he found the fire was going toward this barn of Mrs. Johnson's, and he goes back and he and his man and a team goes down and tries to prevent the fire from burning the barn.”

It is clear that this testimony was not rendered competent to prove the origin of the fire by the fact that the unsworn statement it introduced was that of the defendant's agent, for the statement was not made in the course of the agent's employment. It had no reference to, nor did it explain or characterize, any act in which he was engaged; it was a mere narration of a past transaction: 2 Wigmore on Evidence, 1078; Kansas Pacific Ry. Co. v. Pointer, 9 Kan. 620; Union Pacific Ry. Co. v. Fray, 35 Kan. 700, 12 Pac. 98; Dodge v. Childs, 38 Kan. 526, 16 Pac. 815; Missouri Pac. Ry. Co. v. McCally, 41 Kan. 655, 21 Pac. 574; Cherokee & P. Coal & M.

Co. v. Dickson, 55 Kan. 62, 39 Pac. 691; Missouri Pac. Ry. Co. v. Johnson, 55 Kan. 344, 40 Pac. 641; Atchison etc. R. R. Co. v. Osborn, 58 Kan. 768, 51 Pac. 286; Atchison etc. R. R. Co. v. Consolidated Cattle Co., 59 Kan. 111, 52 Pac. 71; Walker v. O'Connell, 59 Kan. 306, 52 Pac. 894; Robins M. Co. v. Murdock, 69 Kan. 596, 77 Pac. 596; Atchison etc. R. R. Co. v. Burks, 78 Kan. 515, 96 Pac. 950, 18 L. R. A., N. S., 231; Case P. Works v. Pulsifer, 79 Kan. 176, 98 Pac. 787.

There is, however, another theory upon which a plausible argument can be made for the admission of this conversation as evidence that Jones set out the fire-namely, that it falls within the exception to the 426 rule excluding hearsay, for which, in default of a better term, Doctor Wigmore adopts the name "spontaneous exclamations." As that writer points out (3 Wigmore on Evidence, sec. 1745), the principle upon which this exception depends is entirely distinct from that back of the rule admitting evidence of spoken words regarded as verbal acts, but has been so often confounded with it as to produce much confusion in the application of each. Evidence of what a person has said when not under oath, if offered for the purpose of proving that certain words were spoken by a certain person under certain circumstances, and not for the purpose of proving some fact asserted thereby, is not objectionable as hearsay. It may or may not be admissible, according to whether the fact that such language was used sheds any light upon the matter under investigation; but it is not hearsay, for the witness on the stand testifies to the ultimate fact to be proved. But evidence that Jones said he started the fire, offered to show how it did in fact originate, is plainly hearsay, and admissible only if the circumstances create an exception to the ordinary rule. The exception referred to proceeds upon the ground that words spoken under the impulse of strong nervous excitement may, by reason of their spontaneous, impulsive nature, be regarded as presumably free from intent to deceive, and therefore be entitled to be heard and weighed, although lacking the credit that comes from the administration of an oath. Its nature and limitations are fully discussed in the sections of Wigmore's work immediately following that just cited. It is there said: "There was a time when the state of the judicial precedents was such that no established exception of this tenor could yet be said to exist. But now, and for a generation past, it does exist, under one or another guise of phraseology": Wig, more on Evidence, sec. 1746.

In section 1750 the requirements necessary to take a case out of the ordinary rule and render the hearsay evidence admissible are stated thus: 427 "There must be some shock, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. . . . . The utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance."

If these tests are accepted they fail to establish the competency of the evidence under consideration. True, in order for the exception to apply, the utterances need not be exactly contemporaneous with the occurrence of the existing cause, nor be made within any definite time thereafter; and often a large discretion must be given the trial court in accepting or rejecting the proffered evidence. But here the burning of the barn was hardly such a catastrophe as to paralyze the reflective faculties of a witness and render him unable or unlikely to contrive and misrepresent concerning his connection with it, if otherwise he would be disposed to do so. The destruction of the barn was seen to be inevitable for an appreciable time before the flames reached it. There was abundant time and opportunity for Jones to reflect and invent before he gave his version of the matter. The fact that his statements, which were not exclamatory and contained nothing to suggest spontaneity, tended to fix liability upon his employer did not affect the matter one way or the other. If what he said was admissible, his statements would have been equally competent if he had attributed the origin of the fire to some other source.

In ate v. Petty, 21 Kan. 54, the judgment was reversed because a witness was permitted to testify that the wife of a man who was murdered in her presence told him an hour afterward that the defendant was one of the assassins. In State v. Pomeroy, 25 Kan. 349, a conviction on a charge of assault with intent to kill was set aside because the trial court admitted evidence of declarations made by the complainant in three to five minutes after the time he claimed 428 the assault had been made. In Walker v. O'Connell, 59 Kan. 306, 52 Pac. 894, a watchman riding on a railroad tricycle was run into by a train and killed. A judgment for his widow against the receivers operating the railroad was reversed because declarations of the engineer made two or three hours after the accident were admitted. In none of these cases, however, was the principle of "spontaneous exAm. St. Rep., Vol. 131-20

clamation" as an independent ground of admissibility pressed upon the attention of the court. In each of them there was more room for its application than in the present instance.

An extensive collection of cases illustrating the principle, in section 1750 of the Supplement to Wigmore on Evidence, shows that it is most often applied where the litigation grows out of a violent death or serious personal injury. Each de. cision must depend largely upon the special circumstances presented. Without attempting to frame a general rule on the subject the court is of the opinion that to say that the declarations here under consideration were competent to prove the facts to which they related would be too great a relaxation of the rule requiring testimony to be given under the sanction of an oath, and would make the manufacture of evidence too easy and safe.

As the evidence-disregarding the incompetent portionshas no tendency to show that Jones started the fire, the demurrer to it was properly sustained. The judgment of the district court is affirmed.

DECLARATIONS AND ACTS OF AGENTS.

I. Competency of Statements of Agents.

a. In General.

1. Principles Controlling, 307.

2. In Criminal Cases, 309.

3. As Against Third Persons, 309.

4. Mode and Necessity of Proving the Agency, 309.

5. Illustrations of the Rule, 309.

6. Officers and Agents of Corporations, 311.

b. In Fraudulent Transactions, 313.

c. Of Agents Since Deceased, 313.

d. Of Subagent or Special Agent, 314.

e. Of Agent Examined as Witness, 314.

f. Acts or Conduct.

1. Of Agents of Natural Persons, 314.

2. Of Agents and Officers of Corporations, 316.

g. Statement of Opinion, 317.

II. Authority in Certain Cases.

a. In General, with Illustrations and Limitations, 317.

b. Agents with Special or Limited Authority, 322.

c. Architects and Building Contractors, 323.

d. Brokers and Factors, 325.

e. Carriers and Their Officers and Agents, 325.

f. Deputy Sheriffs, 326.

g. Employés and Servants, 327.

h. Interpreters, 330.

i. Masters, Pilots and Captains of Boats, 330.

j. Officers of Banks, 331.

k. Officers of Insurance Companies, 332.

1. Receivers, 332.

m. Persons in Possession of Property, 332.

n. Statements as to Terms of Contract, 333.

o. Statements by Person Concealing Agency, 334.

III Admissions Before or After Transaction or Event.

a. In General, 335.

b. Before, 335.

c. After, 335.

d. Testimony at a Former Trial, 337.

e. In Nature of Report to Principal, 337.

1. After Termination of Agency or Revocation of Authority, 337.

I. Competency of Statements of Agents.

a. In General.

1. Principles Controlling.—The principle on which the declarations, acts or representations of an agent, within the scope of his authority and the execution of his agency, are permitted to be proved, is, that they are considered and treated as the declarations, acts and representations of his principal, and constitute pertinent and legitimate evidence. What is so done, by an agent, is done by the principal through him, as his mere instrument. So, whatever is said by an agent, either in making a contract for his principal, or at the time and accompanying the performance of any act, within the scope of his authority, having relation to, and connected with, and in the course of, the particular contract or transaction in which he is then engaged, or, in the language of the old writers, dum fervet opus, is, in legal effect, said by his principal and admissible in evidence against such principal. It is well to observe the distinction in the reason for the reception of this evidence. It is not because the declaration or act is that of an agent, but for the reason that such declaration or act was made at the very time of the birth of the contract or transaction, or stood sponsor to it, and is treated, therefore, as the direct act of the principal, constituting a part of what is called the res gestae, really an integral part of the whole negotiation, and ex necessitate rei, as obligatory on the principal as if the act or utterance were solemnly his own; and therefore it is capable of proof in the same way as if it had been the specific utterance, act or representation of the principal. It must be coincident with the events to which it relates and not a mere historical narration of what took place; with the one exception, that words spoken under an impulse, produced by some shock, startling enough to produce a nervous excitement, and render the utterance spontaneous and unreflecting, may by reason of their nature be regarded as presumably free from intent to deceive, and therefore be entitled to be heard and weighed, although lacking the credit that comes from the administration of an oath. Dr. Wigmore on Evidence, section 1750, says: "The utterance must have been made before there has been time to contrive and misrepresent, that is, while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance"; but, unless and until the agency is proven, and the declarations, acts, or admissions of the agent come within the rule laid down, the evidence is not admissible: Strawbridge v. Spann, 8 Ala. 820; Bohannan v. Chapman, 13 Ala. 641; Cohn & Goldberg Lumber Co. v. Robbins (Ala.), 48 South. 853; Montgomery-Moore Mfg. Co. v. Leeth (Ala.),