49 Vroom. Yoshimi & Co. v. U. S. Express Co. it and sealed the ends so that no one could open it. It appeared that the box had been returned to Atlantic City by the defendant after complaint had been made that it was not delivered. The lid was then off, the cords had been cut and there was nothing in it but hay and straw. When it was shipped from Atlantic City it weighed fifteen pounds and when it came back it weighed fourteen and three-quarter pounds, The ivory goods weighed about three pounds. The non-delivery of the parcel was attempted to be proved by a conversation which one of the plaintiffs had with Mr. Edelman, who was the local agent at Atlantic City of the express company. One of the plaintiffs after testifying that Edelman told her that he was the manager of the defendant at Atlantic City and that the clerk in the office had told her so also, stated that this manager had admitted to her that the box was empty with the exception of the straw when it reached its destination, and that with the exception of the cords being cut, it had not been tampered with at all so far as he knew. On cross-examination this plaintiff testified: "Q. Do you know whether the package was ever delivered to the consignee? "A. I wasn't there and don't know that it was. "Q. Do you know? "A. I had letters from her that she had received the box and that it was empty with the exception of the straw. "Q. She had received it? "A. Yes. "Q. You had letters from her? "1. Yes." She also stated that Edelman told her that there could not have been anything in the box when it left Atlantic City and that all he knew about the delivery of the box was what he had heard. At the close of the plaintiffs' testimony a motion was made to nonsuit on four grounds-(a) because there was no delivery of the goods to the defendant; (b) because there was no proof showing non-delivery of the goods; (c) because the plaintiffs had no right of property in the goods and hence were Yoshimi & Co. v. U. S. Express Co. 78 N. J. L. not the proper party to sue, and (d) because the sale at auction passed the title absolutely from the plaintiffs. Assuming that there was proof of sufficient facts and circumstances to justify the conclusion that the goods were packed in the box when delivered to the common carrier, and assuming that there was proof of facts from which the jury might conclude that the contract of sale included the shipment of the goods by express to the purchaser and that the plaintiffs had a standing to sue for the loss of the goods, there still was no legal proof that the goods were not delivered to the consignee. The mere fact that the person in charge of the express office of the defendant company at Atlantic City was called the agent or manager, could not make him the agent of the company for all purposes. Nor was his declaration that he was such agent evidential against the defendant. It was not proved that the scope of his agency extended to anything that occurred at the Chicago office; hence his declaration or admissions concerning the transaction in Chicago could not be admitted as against the defendant. The admissions of an agent bind a principal only when within the scope of the agency, or when they are authorized by the principal. Runk v. Ten Eyck, 4 Zab. 756. See also Hill v. Adams Express Co., 45 Vroom 338; Huebner v. Erie Railroad Co., 40 Id. 327. Furthermore, the plaintiffs admitted that the package had been delivered to the consignee and that upon opening it it was found by the consignee to contain nothing but straw. The contention that because these matters were brought out on cross-examination they, as well as the agent's admissions, have become legal evidence against the company, is without force. That the box was delivered to the consignee by the defendant is an admission of the plaintiffs against interest and as such is binding upon them; but the testimony that the consignee had informed the plaintiffs that the box when delivered to the consignee was empty, is mere hearsay. To admit it would put the mere statement of the consignee on a par with testimony given under oath. For these reasons the judgment will be reversed. 49 Vroom. Anderson v. Public Service Corporation. CHRISTIAN A. ANDERSON v. PUBLIC SERVICE CORPORATION OF NEW JERSEY. Argued June 3, 1908-Decided July 19, 1909. Under the circumstances of this case, where it appeared by a preponderance of testimony that plaintiff had been seen intoxicated shortly before the accident and the negligence attributed to the defendant rested substantially upon the plaintiff's uncorroborated story, which appears inconsistent with the situation in which he was found after the accident, and which even if true discloses negligence on his part, a verdict for the plaintiff is set aside. On rule to show cause. Before GUMMERE, CHIEF JUSTICE, and Justices TRENCHARD and MINTURN. For the plaintiff, George S. Silzer. For the defendant, Leonard J. Tynan. The opinion of the court was delivered by MINTURN, J. According to the testimony of the plaintiff, he was walking along the highway between Perth Amboy and Metuchen, about seven o'clock on the evening of September 7th, 1907, when he was overtaken by an automobile, and stepped aside to let it pass. In making this movement he stepped close to the trolley track of the defendant company, which was laid upon the easterly side of the highway. Within a minute or two after the passage of the automobile the plaintiff says he was struck by a trolley car, upon the right, shoulder, was tripped up by the car fender, and thrown upon the track, the car passing over both feet, which necessitated their amputation. The men upon a work car, following the ear in question, a few minutes later discovered the plaintiff, picked him up, and he was subsequently taken to the hospital. The verdict in the case was for the plaintiff for $6,500, Anderson v. Public Service Corporation. 78 N. J. L. and the rule to show cause raises the question of the propriety of this verdict under the testimony and the law. The case, with the exception of the plaintiff's testimony, is almost barren of any direct testimony upon the happening of the accident, and the verdict, therefore, is largely the product of presumptions, claimed to exist by reason of the existence of proved facts. The plaintiff's explanation of his inability to avoid the car which struck him was that the automobile left a cloud of dust behind it, and that the car coming from behind him two or three minutes thereafter, gave no warning by bell or by light of its coming. His explanation of his physical and mental conditions at that time, as testified to by himself and others, throws light upon the question of the plaintiff's contributory negligence, and serves to elucidate the question of the proximate cause of the accident. He knew the tracks were there, and says that, while the automobile was passing, he moved up closer to the tracks. The road was a wide macadamized road, without sidewalks, but with ample room upon the roadway proper to enable a wayfarer to avoid a collision. The plaintiff as a resident in the neighborhood presumably was familiar with the road and the tracks, and, at the time of the accident, was walking from a public house to his home, a distance of a mile. He says he left Perth Amboy at about a quarter of five o'clock upon a trolley car, and was taken sick thereon; that he alighted and went to the house of a friend; that he again took a trolley car, but feeling sick again he alighted at Underhill's Hotel, where he sat upon the stoop until he decided to walk home. Upon the nature of the sickness which induced plaintiff, as he alleges, to leave the cars on two occasions, other witnesses place a different construction. Thus, Martin saw him at noon staggering, from which he concluded that plaintiff was intoxicated. At nearly two o'clock, Dolan saw him board a car, and he says plaintiff "was under the influence of liquor; appeared to be cursing in the car when I went up to him; he was noisy all the way down until he got off." This witness saw the plaintiff again at about an hour before the accident and he appeared to him then "to be very drunk." Pier 49 Vroom. Anderson v. Public Service Corporation. son, the postmaster at Metuchen, loaned plaintiff at his request that day twenty-five cents, after which plaintiff immediately went to Meyer's saloon across the street, and at that time Pierson says the plaintiff "had been drinking" and was saying foolish things, "like anybody will say when they have been drinking." Miss Lamporten, who saw him on the car coming from South Amboy, and who sat on the seat with him, testified that "he had been drinking," and she says, "he had money in his hand and offered it to me, and he said something, I don't know what." Without further recital of testimony of this character, it will suffice to say that to us the conclusion seems unavoidable that at the time of this accident the plaintiff was in an intoxicated condition, and that his version of the circumstances under which he received the injury must appear entirely untrustworthy. While his intoxication would not ipso facto invalidate his testimony, and it should not be ignored if at all substantiated, it must be, nevertheless, judicially noticed that intoxication is productive of the existence of a mental condition which renders testimony unreliable, and impairs credibility. Rice Ev. 28; Whart. Ev., § 401. He himself admits that he had a drink of whiskey early that morning, and divided a kettle of beer with a painter at lunch time, and that about two o'clock he went to a saloon where he remained an hour, and where he imbibed more beer, and "a couple of five-cent drinks." And still later, at Meyer's saloon, he had "a couple of drinks upon a sick stomach," which he says he had been "troubled with for a couple of days." The only testimony adduced in behalf of the plaintiff, to explain the happening of the accident was that of one Wagner, who was a passenger on the car, and who testified that he felt four bumps at the point where the plaintiff was injured, and, looking back, saw an object on the ground. But he also testified that the car was lighted; that the work car which followed carried a headlight, and that the track from that point for quite a distance was straight. The plaintiff was found lying at the right-hand side of the |