Aetna Life Ins. Co. v. Kern-Bauer, 668.

• Decision Date: 05 January 1933
• Docket Number: No. 668.,668.
• Citation: Aetna Life Ins. Co. v. Kern-Bauer, 62 F.2d 477 (10th Cir. 1933)
• Parties: ?TNA LIFE INS. CO. v. KERN-BAUER.
• Court: U.S. Court of Appeals — Tenth Circuit

62 F.2d 477 (1933)

?TNA LIFE INS. CO. v. KERN-BAUER.

No. 668.

Circuit Court of Appeals, Tenth Circuit.

January 5, 1933.

S. J. Clay, of Oklahoma City, Okl. (J. S. Ross and Jas. H. Ross, both of Oklahoma City, Okl., on the brief), for appellant.

Theodore Pruett, of Anadarko, Okl. (Pruett & Wamsley, of Anadarko, Okl., and Melton & Melton and Alger Melton, all of Chickasha, Okl., on the brief), for appellee.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The jury found that Joe Kern came to his death, "directly and independently of all other causes, from bodily injuries effected solely though external, violent and accidental means." Judgment was rendered on the verdict for the amount of an accident insurance policy issued by appellant, in favor of appellee, the beneficiary. Two questions are argued upon this appeal, one concerning the admissibility of certain statements as spontaneous exclamations, the other as to the sufficiency of the evidence to support the verdict.

Kern, a man 48 years old and apparently in sound health, left the home of a friend in Ponca City about 5:30 or 6:00 o'clock in the evening, saying he was bound for Wichita. Five hours later he was found in his car, off the road, about 50 miles from Ponca City. His car had left the pavement a block or more from where it stopped, had crossed a slight ditch, and had come to rest with the right wheels on the embankment on the far side of the ditch. The motor had been turned off, but the car was not damaged. His whereabouts from the time he left the home of his friend until he was found is not shown by the evidence. Not more than an hour and a half could well be consumed in the 50-mile drive on the pavement; whether he spent the other 3 or 4 hours in the car, waiting for assistance, or in Ponca City before he started to Wichita, is entirely a matter of conjecture. Two men came to his rescue and started to Wichita with him; about a half hour later, he was seized with violent pains in the region of the heart, and died.

When found, Kern's head and shoulder were hanging on the outside of the car. He was gagging and complaining of being sick at his stomach and of his head or neck hurting him. He bore no visible mark of an injury. One of the men who went to his assistance asked him what was the matter, if he had a drink too many; to which Kern replied that he did not drink, that he was driving the car and the lights blinded him. The other Samaritan testified that Kern said the lights blinded him, but did not fix the time he made the statement. These statements as to the blinding lights are the only evidence in the record as to the cause of his car running off the road, and were admitted over vigorous objection. The defense being that his death resulted from heart disease and not from accident, this testimony is important, and if it was erroneously admitted, a new trial must be had.

No objection was offered to the statements of the insured concerning his physical condition or the pains he was suffering. Such statements are governed by another exception to the hearsay rule. The statements objected to were a narration of a past event, and are hearsay and inadmissible unless they fall within the exception of spontaneous exclamations. While there is much difference of judicial opinion in the application of the rule to the facts, the rule itself is not difficult of statement. Under this exception to the hearsay rule, a narration of a past event is admissible only when it is made under such stress of physical shock or nervous excitement as to preclude the probability that it is the result of deliberation. The rationale of the rule is that where one is suffering from a shock so serious that the reflective faculty is stilled, there is such assurance that spontaneous exclamations are true that it is safe to dispense with the necessity of an oath and the right of cross-examination. Travelers' ...