Alexander Film Co. v. Industrial Commission

• Decision Date: 23 December 1957
• Docket Number: No. 18339,18339
• Parties: ALEXANDER FILM COMPANY and Columbia Casualty Company, Plaintiffs in Error, v. The INDUSTRIAL COMMISSION OF COLORADO, Carl E. Olson, Claimant in the Matter of the Death of Carl E. Olson, and Esther Louise Olson, Defendants in Error.
• Court: Colorado Supreme Court

Page 1074

319 P.2d 1074

136 Colo. 486

ALEXANDER FILM COMPANY and Columbia Casualty Company Plaintiffs in Error, v. The INDUSTRIAL COMMISSION OF COLORADO, Carl E. Olson Claimant in the Matter of the Death of Carl E Olson, and Esther Louise Olson Defendants in Error.

No. 18339.

Supreme Court of Colorado, En Banc.

Dec. 23, 1957.

Duane O. Littell, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy, Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for defendant in error, Industrial Commission of Colorado.

FRANTZ, Justice.

Esther Louise Olson, the widow and sole dependent of Carl E. Olson, deceased, was awarded compensation and other relief for his death which the Industrial Commission of Colorado held arose out of and in the course of his employment with Alexander Film Company. Having exhausted their administrative remedies, the company and its insurer filed their complaint in the district court in Denver, seeking thereby to have the award set aside and vacated.

The record of the claim before the Commission was certified to the district court, where the matter was heard, taken under advisement, and in due course concluded by the entry of a judgment affirming the award. It is this judgment that the company and its insurer would have us reverse on this review.

Grounds for reversal are predicated on (1) the admission, over objection, of certain testimony, and (2) the finding that the deceased sustained fatal injuries arising out of and in the course of his employment. The assailed testimony assumes an insignificant part in this case, as will be made to appear in our resolution of the second question.

The film company is located in Colorado Springs, Colorado. It produces advertising and motion picture films, and for this purpose assigns the supervision of its undertakings to directors. At the time of his death Mr. Olson was one of its directors. His residence was Colorado Springs.

The film company had entered into a contract to produce playlets and scenarios for the Pontiac Division of General Motors Corporation. It assigned Mr. Olson to take charge of the work to be performed in pursuance of the contract. This required Mr. Olson to be present and manage production at the proving grounds of Pontiac Motors, located at or near Pontiac, Michigan.

As director Mr. Olson was responsible for securing 'the cast, the location, the shooting local, coordination of the work that is to go into the making of motion pictures for the company.' When on location he directed the 'shooting of the moving pictures.' Since he was on the ground he was the man of decision on questions of what scenes should be shot and what should be in the script. His evenings generally were devoted to going over the scripts to be used in the 'next day's shooting.' It was not unusual for a script to be refined or rewritten.

Mr. Olson was permitted to select places for lodging and eating while on a mission for the film company requiring him to be to some distance from Colorado Springs. Upon the completion of his work, he was reimbursed for all expenses incurred during the time he was away from Colorado Springs.

While performing his assignment in Michigan, Mr. Olson resided in a motel. Shortly after four o'clock in the afternoon of the day of the accident, he directed Mr. Carrier, another cameraman, to take two shots. He told Mr. Carrier that he was returning to the notel (an hour's distance from the proving grounds) for the purpose of revising the next day's script. Mr. Carrier testified that it would take two and a half to three and a half hours to accomplish the revision contemplated by Olson. On the ground that Carrier's testimony was hearsay, timely objection was made to its admission.

The evidence shows that Mr. Olson returned to his motel about six o'clock in the evening, and shortly thereafter ate his evening meal at a restaurant located across the street from the motel. At approximately eight o'clock, while attempting to cross the road between the restaurant and the motel, he was struck by a motor vehicle. He died the next day as a result of the injuries received.

Were the statements of the deceased to Carrier, relating what he intended to do that evening, inadmissible because hearsay? We think that statements wearing the badges present here are within an exception to the hearsay rule and admissible. Here their admissibility depended on (1) whether they related to a then existing state of mind (Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706), (2) whether they were made in the ordinary course of things as the usual information a man would communicate to another under the circumstances (Hunter v. State, 40 N.J.L. 495), and (3) whether they were 'made under circumstances which would exclude any suspicion of an intention to make evidence to be used at the trial' (Commonwealth v. Trefethen, 157 Mass. 180, 185, 31 N.E. 961, 24 L.R.A. 235).

Sanction for the admission of such statements as original evidence forming an exception to the hearsay rule has gradually grown in the law of evidence. As a result there is today a solid body of authority enunciating the rule that relevant anteincident statements of intention to do some act are admissible as original evidence. State v. Journey, 115 Conn. 334, 161 A. 515; State v. Long, 2 W.W.Harr. 380, 32 Del. 380, 123 A. 350; Mathews v. Great Northern Ry. Co., 81 Minn. 363, 84 N.W. 101, 83 Am.St.Rep. 383; Lewis v. Lowe & Campbell Athletic Goods Co., Mo., 247 S.W.2d 800; Ervin v. Myrtle Grove Plantation, 206 S.C. 41, 32 S.E.2d 877, are a few typical decisions. See also 113 A.L.R. 288 and Wigmore On Evidence (3rd Ed.) § 1725.

In following this trend courts have broken away from the theory that such statements are admissible because they characterize the subsequent conduct of the declarant, or are verbal acts, and hence form a part of the res gestae, as such theory is exemplified in Denver & R. G. R. Co. v. Spencer, 25 Colo. 9, 52 P. 211; Denver City Tramway v. Brumley, 51 Colo. 251, 116 P. 1051; City and County of Denver v. Midwest Plumbing & Heating Co., 109 Colo. 395, 125 P.2d 960. Re-examination of the theory of admission of such declarations by this court in a proper case was intimated in Massie v. People, 82 Colo. 205, 258 P. 226.

It is true that in many cases the problem may be treated as one of res gestae without affecting the results reached, but in other cases such treatment may result in the exclusion of admissible evidence. In some cases the res gestae rule has been attenuated in order to render such statements admissible. We think Denver & R. G. R. Co. v. Spencer, supra, a typical illustration of the lengths to which the res gestae rule has been stretched in admitting such statements. In that case arrangements of the decedent made a few days in advance of the act were received in evidence as explanatory of the act under the res gestae rule.

Nor should the verbal acts doctrine be applied. This rule may be invoked where the conduct is equivocal and the words which accompany the act give it meaning. 'Verbal acts are utterances which accompany some act or conduct to which it is desired to give a legal effect. When such act has intrinsically no...