Ammundson v. Tinholt
| Decision Date | 18 March 1949 |
| Docket Number | No. 34774.,34774. |
| Citation | 36 N.W.2d 521,228 Minn. 115 |
| Parties | AMMUNDSON et al. v. TINHOLT et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Paul W. Guilford, Judge.
Actions by Irvin Ammundson, Jr., and by Edith A. Ammundson, his wife, against James Tinholt, and others, original defendants, James Tinholt and Herman O. Falk, special administrator of estate of D. A. Tinholt, substituted defendant, for injuries and consequential damages resulting from automobile collision, wherein substituted defendant counterclaimed. From adverse judgments, defendants appeal.
Judgments affirmed.
Maugridge S. Robb, of Minneapolis, for appellants.
Freeman, King, Larson & Peterson, of Minneapolis, for respondents.
Plaintiffs in separate actions recovered verdicts against the defendants for personal injuries sustained by Edith E. Ammundson as the result of an automobile collision and for consequential damages sustained by Irvin Ammundson as her husband. Defendants appeal.
The questions presented for decision are:
(1) Whether a statement as to how an accident occurred by a party, who at the time of making it was too excited to tell how it happened, is admissible as an admission (2) Whether the statement referred to in the preceding question is admissible as part of the res gestae; and,
(3) Whether in an action for wrongful death (here a counterclaim for damages for wrongful death), where all the facts relative to negligence and contributory negligence are shown, the court should instruct the jury that the law presumes that decedent exercised due care for his own safety.
The collision occurred on July 20, 1945, at about 9:30 p. m. on highway No. 27 in Mille Lacs county at a point about two blocks east of highway No. 169. Pursuant to a telephone call by Irvin from a filling station at the intersection of the highways, Edith went to meet him with their car. Irvin, a soldier in World War II, was on his way home for a furlough, and Edith was expecting him. He planned to make his return something of a surprise to her and their two small children, and he did not notify her definitely about his return until he got to the filling station. Immediately upon receipt of the telephone message, Edith started from their home, which is on highway No. 27 about one mile east of highway No. 169, in their automobile. The taillight was defective, in that about one-fourth of the red glass had been removed. She thought that, because Irvin had only one duffel bag when he was home on a prior visit, he also would have only one such bag on this occasion. Other boys who resided in the vicinity and had been in the armed forces also were expected home at that time. Highway No. 27 had a tarvia surface with shoulders, and at the place where the collision occurred there were guardrails. Edith proceeded westerly thereon to a point about two blocks east of highway No. 169. She was then going at a speed of from 15 to 20 miles per hour, and defendants' car was approaching from the rear at a speed of about 50 miles per hour. She drove on the right side, and at the point mentioned she saw a man in soldier's uniform and overseas cap approaching about 50 feet ahead on foot on the right side of the road carrying two duffel bags, but she did not recognize him. At the same time that she saw the soldier the lights of defendants' automobile shone in her rearview mirror, and defendants' car immediately collided with the rear of the Ammundson car, pushing it forward about 75 to 100 feet and causing it to roll into a ditch about 30 feet below the road. The soldier was Edith's husband, the plaintiff Irvin. She testified: "Well I just saw him [her husband], and I saw a flash [of the lights of defendants' car] in my rearview mirror, and that is all I remember."
Both Edith and Irvin testified that she did not stop or slow down. There was no direct testimony that she did. Irvin also testified that when he was 50 feet west of their car he recognized it, but did nothing to stop Edith, because defendants' car was approaching rapidly from the rear. After the collision, Irvin saw Edith injured in their car in the ditch and that gasoline had escaped from the tank. Being unable to remove her and fearing that the car might catch fire because of the gasoline, Irvin ran to the road to seek help. Some people gathered, among them Norman Schmidt, who testified that Irvin "was too excited to tell me how it happened," and that he imagined that Irvin told him that he (Irvin) imagined that Edith slowed down immediately prior to the collision.
After the accident, defendant D. A. Tinholt, the driver of the Tinholt car, committed suicide. His personal representative, who was substituted for him, asserted a counterclaim for D. A. Tinholt's wrongful death, alleging that he received injuries as a consequence of Edith's negligence which produced such mental deterioration as to cause him to commit suicide.
The trial judge submitted the case to the jury in a charge with which no fault is found on appeal, except in the particulars to be presently stated. The trial judge charged the jury that the burden of proof rested on plaintiffs to prove as part of their causes of action that D. A. Tinholt was negligent and, as part of their defense to the counterclaim for wrongful death by his personal representative, that he was guilty of contributory negligence; and that, while the jury might consider Irvin's statement to Schmidt for purposes of impeachment, the statement was "insufficient to base a finding on that the Ammundson car did slow down before the accident." A request to charge that the presumption of law was that decedent exercised due care for his own safety was refused. Defendants contend that Irvin's statement to Schmidt constituted an admission by Irvin and also a part of the res gestae and that as such it was substantive evidence against both Edith and Irvin; and that, because that is true, the court erred in the instruction concerning its legal effect. Defendants also contend that in wrongful-death cases the court should instruct the jury that the decedent is presumed to have exercised due care for his own safety and that such an instruction should always be given for the reason that, if the jury should, as it has the right to and in some cases should, reject the testimony as to contributory negligence, the presumption, for lack of evidence to the contrary, would prevail and thus compel decision, as a matter of law, that decedent exercised due care.
1. The question for decision involves the admissibility of post-accident utterances of a declarant incapable, as a matter of law, of narrating what he had observed. This question is quite aside from those arising from the conjectural and speculative nature of the utterances and from the one whether they were in any sense attributable to and binding upon Edith. According to the witness (Schmidt), to whom the utterances were made, declarant (Irvin) was incapable of telling how the collision happened, and, because that was true, the witness could relate only what he imagined declarant said. While the precise nature of declarant's inability to narrate was not shown, it appeared that he was suffering from mental shock produced by fear that, if the gasoline around the automobile ignited, his wife might be cremated alive in their automobile before his eyes, and by the other events of the collision. There is here no disputed question of fact as to declarant's inability to narrate what he had seen. The only evidence touching the matter is to the effect that the ability to narrate was lacking. Utterances of a party incapable of recollecting and narrating the facts to which his utterances relate are inadmissible as admissions. If the lack of such ability conclusively appears, the utterances should be excluded entirely; but, if the evidence raises a fact issue as to whether it is lacking, the utterances should be received as admissions and their weight should be determined by the jury under an appropriate instruction. Aide v. Taylor, 214 Minn. 212, 7 N.W.2d 757, 145 A.L.R. 530. Lack of ability to narrate what the witness has observed amounts to what Wigmore well calls a lack of testimonial capacity. 2 Wigmore, Evidence (3 ed.) §§ 478, 479, 506. In Jacobson v. Carlson, 302 Mich. 448, 4 N.W.2d 721, utterances of plaintiff while dazed and unable to answer were held to be inadmissible as admissions. In analogous cases,...
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