Hargett v. Jefferson Standard Life Ins. Co., 179

• Decision Date: 31 October 1962
• Docket Number: No. 179,179
• Court: North Carolina Supreme Court
• Parties: Ridie Ward HARGETT v. JEFFERSON STANDARD LIFE INSURANCE COMPANY. Ridie Ward HARGETT v. The PHOENIX MUTUAL LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT. Ridie Ward HARGETT v. The FIDELITY MUTUAL LIFE INSURANCE COMPANY.

Page 26

128 S.E.2d 26

258 N.C. 10

Ridie Ward HARGETT v. JEFFERSON STANDARD LIFE INSURANCE COMPANY.

Ridie Ward HARGETT v. The PHOENIX MUTUAL LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT.

Ridie Ward HARGETT v. The FIDELITY MUTUAL LIFE INSURANCE COMPANY.

No. 179

Supreme Court of North Carolina.

Oct. 31, 1962

Jones, Reed & Griffin, Kinston, and George R. Hughes, Trenton, for plaintiff.

Wharton, Ivey & Wharton, Charles E. Dameron, III, Greensboro, and Whitaker & Jeffress, Kinston, for defendants.

MOORE, Justice.

We first consider whether the trial judge erred in excluding the statement of deceased to Turner and Jones that he had been stung by a wasp. An answer to this question is not necessary for a decision on this appeal, but the question will arise upon the retrial of the case and for that reason we discuss it here.

When, in an action upon an accident insurance policy, the beneficiary seeks to introduce in evidence declarations of deceased insured relative to the occurrence allegedly causing death, the inquiry is whether the declarations are part of the res gestae or are merely hearsay. 29A Am.Jur., Insurance, § 1888, p. 947. To take such declaration out of the hearsay rule and render it competent as a part of the res gestae, it must be relevant, it must be so spontaneous in character as to safeguard its trustworthiness, preclude the likelihood of reflection and fabrication, and render it instinctive rather than narrative, and it must be contemporaneous with the transaction, or so closely connected with the main fact as to be practically inseparable therefrom. Little v. Power Brake Co., 255 N.C. 451, 455, 121 S.E.2d 889; Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757. This general statement of the rule is difficult of application in particular circumstances. It has been said that 'there is no single res gestae rule, and the expression does not mean exactly the same thing when used in different connections.' Stansbury: North Carolina Evidence, § 158, p. 329. Because of the incidence of various other rules of law in the different types of cases in which the res gestae rule arises, there seems to be inconsistencies in its application by our Court, particularly as to the effect of the time element. In many cases there is insistence upon strict contemporaneousness, and declarations made after the occurrence, however brief the interval of time, are excluded as 'narrative.' Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; State v. Butler, 185 N.C. 625, 115 S.E. 889; Hill v. Aetna Life Insurance Co., 150 N.C. 1, 63 S.E. 124. Other cases emphasize spontaneity and admit utterances made after the occurrence but before there has been opportunity to fabricate. State v. Smith, 225 N.C. 78, 33 S.E.2d 472; Young v. Stewart, 191 N.C. 297, 131 S.E. 735; State v. Spivey, 151 N. C. 676, 65 S.E. 995. The effect of the time element in a particular case depends largely upon the particular circumstances involved.

The decision of the Supreme Court of the United States in Travelers' Ins. Co. v. Mosley, 8 Wall. 397, 19 L.Ed. 437 (1869) established a more liberal trend in dealing with the time element in accident cases. There, the insured got out of bed about midnight, and shortly thereafter his son found him downstairs in a reclining position and asked him what was wrong, and insured said he had fallen downstairs and was badly hurt. He went back upstairs and told his wife he had fallen down the back stairs and almost killed himself, that he had hit the back of his head in falling. Insured died a few days later. The wife, beneficiary, sued for accident benefits of a life insurance policy. The Court ruled that the declarations of insured to his son and wife were admissible.

The opinion in the Mosley case exerted a powerful influence in expanding the concept of res gestae in accident cases and is now followed in a majority of jurisdictions. Some typical cases are: Miser v. Iowa State Traveling Men's Ass'n, 223 Iowa 662, 273 N.W. 155 (1937); National Life & Accident Ins. Co. v. Hedges, 233 Ky. 840, 27 S.W.2d 422 (1930); Standard Accident Ins. Co. v. Baker, 145 Okl. 100, 291 P. 962 (1930); Bulkeley v. Brotherhood Accident Co., 91 Conn. 727, 101 A. 92 (1917); Meyer v. Travelers' Ins. Co., 130 Minn. 242, 153 N.W. 523 (1915); Starr v. Aetna Life Ins. Co., 41 Wash. 199, 83 P. 113, 4 L.R.A., N.S., 636 (1905); Puls v. Grand Lodge, A. O. U. W., 13 N.D. 559, 102 N.W. 165 (1904). The Mosley case was at first criticized in some quarters as being a bootstrap operation, that is, that the court admitted in evidence a narrative to prove the accident itself, when the admissibility of the narrative was conditional upon the accident having happened. 163 A.L.R. 203. This criticism is not valid, for by this reasoning contemporaneous statements, otherwise competent, would in many instances be inadmissible. For example, consider the circumstances in State v. Smith, supra, and Means v. Carolina Central R. R. Co., 124 N.C. 574, 32 S.E. 960, 45 L.R.A. 164.

The generally accepted rule now is that 'If the utterance tends to elucidate the occurrence, if it appears in its nature, manner and circumstances to have been so responsive to the mental impact of the accident as to be but an unconsidered reproduction of what the speaker has seen or experienced, and if it is made so soon after the accident as to render it improbable that perverting motive or false memory has intervened it is admissible in evidence.' 163 A.L.R. 92.

The admissibility of an utterance is of course, a preliminary matter for the judge. If admitted, its weight and credit is for the jury. The ruling of the trial judge on admissibility is subject to review, but in doubtful cases should be given much weight. 163 A.L.R. 92, 93. See also Swinson v. Nance, 219 N.C. 772, 777, 15 S.E.2d 284. The utterance should be regarded as presumably inadmissible. In determining whether the presumption has been overcome and whether the utterance is admissible the court should consider the time, place and content of the utterance, whether it was voluntarily made, motive for fabrication, condition of declarant, and corroborating circumstances. The time should not be so remote as to permit the declarant to reflect and fabricate and his statement to lose the quality of spontaneity. The utterance should be made under the influence of the accident. 'What the law altogether distrusts is not after-speech but after-thought.' Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18, 26 (1890). Ordinarily a response to a question is less trustworthy than a voluntary statement. A declaration made at the place of the occurrence is more likely to be influenced thereby than one made at a place substantially removed therefrom. Consideration should be given to those circumstances which motivate the utterance. It is important to consider whether declarant was under stress, emotion or pain brought on by the occurrence, or whether the declaration was made in a state of repose. An important consideration is whether the utterance is the narrative of an uncorroborated chain of events, or whether it is explanative of events otherwise in evidence. See 130 A.L.R. 302-310; Meyer v. Travelers' Ins. Co., supra.

Tested by the foregoing factors, it is our opinion that the statement of Hargett was competent and admissible. He made the declaration about two minutes following...