Overland Const. Co. v. Sydnor, 6437.
Decision Date | 09 April 1934 |
Docket Number | No. 6437.,6437. |
Citation | 70 F.2d 338 |
Parties | OVERLAND CONST. CO. v. SYDNOR. |
Court | U.S. Court of Appeals — Sixth Circuit |
Robert A. Black, of Cincinnati, Ohio, for appellant.
Robert H. French, of Cincinnati, Ohio (Benjamin P. Pink, of Cincinnati, Ohio, on the brief), for appellee.
Before HICKS and SIMONS, Circuit Judges, and HAHN, District Judge.
Appellee's employer, Starrett Brothers, Inc., on the 18th day of July, 1930, was engaged as the general contractor in the construction of a 46-story modern office building known as Carew Tower, in Cincinnati, Ohio. Upon that date appellant, the Overland Construction Company, as subcontractor, was doing work upon said building with a crew of iron workers. It appears from the evidence that the iron workers wore a distinctive type of brown overalls with the initials upon the back thereof, and that they wore 3?-inch belts in which to carry appliances for performing their work. Appellee, who was engaged in picking up bricks and doing other general work on the fortieth floor of the building, claimed to have been struck by a plank which had been dropped from the forty-first floor by one of the iron workers; the plank having markings indicating that it was used by them in their work. The principal injuries claimed by appellee were fractures of the fourth and fifth lumbar vertebrc.
Two of appellee's fellow workmen testified that after he had been struck and just as he had been placed in a lift for the purpose of taking him to the ground, an iron worker, unidentified as to name, came from the forty-first floor; that he immediately engaged in conversation with one of the workmen there present. One of the workmen testified that he said: Another workman testified that he said: This testimony was objected to on behalf of the appellant and error assigned to the refusal of the court to exclude this testimony.
The courts and legal authors generally treat such declarations and exclamations as part of the res gestc. 3 Jones, Commentaries on Evidence (2d Ed.) §§ 1196-1211. Morgan, "A Suggested Classification of Utterances Admissible as Res Gestc," 31 Yale Law Journal, 229, 238. Professor Wigmore limits utterances admissible under the res gestc rule to three classes (3 Wigmore, § 1746, p. 737; § 1766, p. 773), and includes spontaneous declarations and exclamations within the exceptions to the hearsay rule. 3 Wigmore on Evidence, §§ 1745-1757. But whatever classification is adopted, the test for determination of the admissibility of such utterances remains the same.
In Wicker v. Scott, 29 F.(2d) 807, 809, this court said:
Section 1747 of the Second Edition of Wigmore is as follows:
The declarations, we think, were admissible under the prior decisions of this court. In Armborst v. Cincinnati Traction Co. (C. C. A.) 25 F.(2d) 240, 241, plaintiff, a passenger on a street car, was injured while alighting therefrom. She was permitted to testify that while she was lying on the ground, a man picked her up and said, "You were throwed off that car." In Peirce v. Van Dusen (C. C. A. 6) 78 F. 693, 706, 69 L. R. A. 705 (opinion by Harlan, Circuit Justice), it was held permissible to show that defendant's superintendent, in answer to a question, said: Other well-reasoned cases discussing the principles involved are Chesapeake & O. R. Co. v. Mears (C. C. A. 4) 64 F.(2d) 291; Perry v. Haritos, 100 Conn. 476, 124 A. 44; People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690; Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S. E. 18; State v. McLaughlin, 138 La. 958, 70 So. 925.
Nor were the declarations of the workman inadmissible because they were those of an agent or employee. It is true that the declarations of an agent or employee which are not part of the res gestc are inadmissible, Vicksburg, etc., R. Co. v. O'Brien, 119 U. S. 99, 7 S. Ct. 172, 30 L. Ed. 299, but they are admissible if a part of the res gestc, New Jersey Steam-Boat Co. v. Brockett, 121 U. S. 637, 649, 7 S. Ct. 1039, 30 L. Ed. 1049; 2 Wigmore (2d Ed.) § 1078; 3 Wigmore (2d Ed.) § 1769. On this point this case is ruled by Peirce v. Van Dusen (C. C. A. 6) 78 F. 693, 69 L. R. A. 705, supra. And see Denver Omnibus & Cab Co. v. Krebs (C. C. A. 8) 255 F. 543. The declarations sought to be admitted in Cyborowski v. Kinsman Transit Co. (C. C. A. 6) 179 F. 440, were not part of the res gestc, nor were they spontaneous exclamations.
The declarations were admissible as against the contention that they were "but the expression of an opinion or conclusion as to who caused the accident." Neisner Bros. v. Schafer, 124 Ohio St. 311, 178 N. E. 269, 270; Cottom v. Klein, 123 Ohio St. 440, 175 N. E. 689. Rather the declarations related to facts and circumstances which the jury might properly consider in determining the ultimate issue of the negligence of the appellant. In American Mfg. Co. v. Bigelow (C. C. A. 2) 188 F. 34, 36 (5), the court held admissible a statement the effect of which was that defendant's superintendent had caused the injury to the plaintiff. See, also, Northern Pacific R. Co. v. Kempton (C. C. A. 9) 138 F. 992, 996; Kansas City Southern R. Co. v. Moles (C. C. A. 8) 121 F. 351, 352; and Annotation, 76 A. L. R. 1121.
If the jury believed the evidence, and particularly if it regarded the utterances of the workman testimonially, it is clear that it must have found that the workman declarant was a participant in the occurrence that caused the injury, and not a mere bystander.1
The court charged the jury that there was no evidence that the injuries to appellee's fourth and fifth lumbar vertebrc were permanent in their nature but otherwise left to the jury the question of the permanency of his injury. It is claimed that the court erred in leaving any question of the permanency of appellee's injuries to the jury. Upon examination of the evidence, we think there was no error in the charge as given. Further, it is clear that no prejudicial error intervened. The verdict was in the amount of $5,416.00 and the agreed and stipulated reasonable value of hospital and medical service was $4,379.17. The jury did not assess damages upon the basis of any permanent injuries.
Appellant contends that appellee was not entitled to recover the reasonable value of hospital and medical services in the amount of $4,379.17 because this amount was paid for him by the Industrial Commission of the State of Ohio. Appellant does not contend against the rule...
To continue reading
Request your trial-
Gypsum Carrier, Inc. v. Handelsman
...856, 74 S.Ct. 71, 98 L.Ed. 370 (1953); Chicago Great Western Ry. Co. v. Peeler, 140 F.2d 865 (8th Cir. 1944); Overland Const. Co. v. Sydnor, 70 F.2d 338, 340 (6th Cir. 1934). 32 For a recent re-examination of the conflicting arguments see Schwartz, The Collateral-Source Rule, 41 Boston L.Re......
-
Petition of Oskar Tiedemann and Company
...a reduction of damage because the injured plaintiff has received the benefit of insurance. 25 C.J.S. Damages § 99. Overland Const. Co. v. Sydnor, 70 F.2d 338 (6 Cir. 1934). And, more particularly, in an analogous situation involving the Employers' Liability Act, a defendant railroad was not......
-
Beausoliel v. United States
...64 F.2d 291, certiorari denied, 293 U.S. 557, 55 S.Ct. 69, 79 L.Ed. 659; State v. McLaughlin, 138 La. 958, 70 So. 925; Overland Const. Co. v. Sydnor, 6 Cir., 70 F.2d 338; Washington and Georgetown R. R. v. McLane, 11 App.D.C. 220; Solice v. State, 21 Ariz. 592, 193 P. 19; People v. Del Verm......
-
Cudd v. Great American Insurance Company, Civ. A. No. 8038.
...American Bitumuls Co., 249 S.W. 2d 428 (Mo.Sup.Ct., 1952); Ward v. Mitchell, 216 Miss. 379, 62 So.2d 388 (1953); Overland Const. Co. v. Sydnor, 70 F.2d 338 (6th Cir., 1934); Donohue v. Acme Heating, etc., 214 Minn. 424, 8 N.W.2d 618 (1943); Moultroup v. Gorham, 113 Vt. 317, 34 A.2d 96 (1943......