Bankers Life Co. v. Nelson, 2160

• Decision Date: 11 March 1941
• Docket Number: 2160
• Citation: Bankers Life Co. v. Nelson, 56 Wyo. 513, 111 P.2d 136 (Wyo. 1941)
• Parties: BANKERS LIFE CO. v. NELSON
• Court: Wyoming Supreme Court

111 P.2d 136

56 Wyo. 513

BANKERS LIFE CO. v. NELSON

No. 2160

Supreme Court of Wyoming

March 11, 1941

ERROR to the District Court, Natrona County; C. D. MURANE, Judge.

On Petition for Rehearing.For prior opinion, see56 Wyo. 243108 P.2d 584.

Rehearing denied.

RINER Chief Justice.KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

A petition for rehearing, together with brief in aid thereof in the above entitled case has been filed on behalf of the Bankers Life Company, and substantially the same matters have been re-argued in that brief as were urged for the Company in the original briefing work and argument heretofore presented.We have nevertheless carefully reviewed the cause in the light of what has been additionally said in the petition and brief now before us.Furthermore we have searched the latest decisions of the appellate courts of the nation to ascertain if the views expressed in the opinion heretofore filed in this cause should be regarded as erroneous.The result has been simply to confirm our belief in the correctness of what we previously said.

Relative to the point that the declaration of Nelson to his wife, "I believe I have ruptured myself on that engine", should not have been admitted in evidence as a part of the res gestae of the accident, as the district court decided and as we, too, think was correct, the following cases are pertinent:

In Redrick v. Knapp Bros. Co.,127 Pa.Super. 92, 193 A. 117, the facts were, as briefly stated in the court's opinion:

"On August 2, 1933, while in customary good health, pursuant to orders, he drove with a fellow employee, Theodore Brown, over to defendant's other warehouse.Brown went inside to deliver some fish.Redrick remained on the truck, unloading some broken boards and rubbish.Brown was gone about three minutes, and when he came back he found Redrick off the truck, on the ground, taking off his shoe.In response to Brown's question as to what was the matter, Redrick said he had run a nail into his foot.There were broken wooden boxes on the truck which might easily have supplied the nail he stepped on.That Redrick was excited about the matter will be evident from the consequences hereinafter related."

This condition in Redrick's mind resulted, as was found below, in a mental condition of "worry and fear, resulting in a traumatic dementia praecox of the catatonic type, which so debilitated and devitalized the deceased, that he ultimately became subject to convulsive fits which resulted in his death".In the course of the opinion last above mentioned the court said:

"The declaration of Redrick as to his having run a nail into his foot was admissible as part of the res gestae, under the decisions in (citing cases).

"It was made almost immediately after the occurrence and has all the marks of spontaneity and authenticity.That Redrick was laboring under great excitement because of the accident is conclusively shown by its effect upon his mind.The fear and worry that the puncture wound in his foot, caused by stepping on the nail, would produce lockjaw were so great that they caused a serious mental disturbance which brought about his death.We cannot conceive of a case where there was less likelihood of premeditation, design, or ulterior purpose in making the declaration.It measures up to the rigorous standard of utterances admissible as part of the res gestae, that they must be made 'under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thoughts created by, or springing out of, the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design.' * * * *

"The declaration as to the accidental injury to Redrick's foot being admissible, there was competent evidence to support the finding of an accidental injury received in the course of his employment."Of similar purport is the case of Sconce v. Jones,343 Mo. 362, 121 S.W.2d 777.

The cases of Marsh v. Preferred Accident Insurance Co. and Marsh v. New York Life Insurance Co.,89 F.2d 932, were suits by his widow upon two life insurance policies to recover for the alleged accidental death of John C. Marsh.The first was for $ 5000.00 on the policy of the Preferred Acc. Ins. Co.; and the second for $ 12,000.00 on a provision of a life insurance policy "contracting to pay double indemnity in case death resulted from bodily injury occasioned solely by accidental means".A verdict was directed below for the defendants, and the cases went to the United States Circuit Court of Appeals for the Sixth Circuit, on the sole question of whether certain evidence should have been excluded.The facts as briefly reviewed by the court were: At the head of the stairs leading to the second floor of the house in which Mr. and Mrs. Marsh lived was a folding screen in three sections.To quote from the court's opinion:

"Marsh retired about 10:30 p. m. March 16, 1933, but before doing so he placed this screen in the stairway.A short time later Mrs. Marsh went downstairs to lock the house and on her return replaced the screen in the stairway.She then retired.She testified that between 3:30 and 4 a. m.she heard a terrible crash, went to the head of the landing, and looked down the stairway.At this point she offered to give the following additional testimony: 'Mr. Pilliod (Dictating to reporter): I found my husband lying on the landing at the foot of the stairs, and the screen had folded up and fallen down.He was lying on the left side of the screen.The screen had fallen, tipped over and fallen on the landing.That was lying on the right side; he on the left.Of course I rushed downstairs.As I came out of my bedroom I shouted: "What was that?What happened?"When I saw him lying there I ran downstairs and he said "I stumbled on the screen and fell downstairs, and I must be terribly hurt; I can't stand."'"

This offered testimony was excluded.Reversing that ruling, this was said:

"The outcry, 'what was that?What happened?'was not shouted in confidence; it was a spontaneous outburst caused by the crash.It was part of the res gestae.The discovery by Mrs. Marsh of her husband's plight and the overturned screen was in no sense a confidential disclosure.If she spoke the truth, any other person, located as she was, would have made the same observation.The statement of the deceased, 'I stumbled on the screen and fell downstairs and I must be terribly hurt; I can't stand', was admissible.It was made immediately after the crash and as soon as Mrs. Marsh could run to him.The proposition needs no other support than Travellers' Insurance Co. v. Mosley,8 Wall. (75 U.S.) 397, 403, 19 L.Ed. 437.There is nothing in the statute involved to indicate that the Legislature intended to abrogate the res gestae rule.

"With the excluded testimony admitted there was substantial evidence for the consideration of a jury."

From the case of Showalter v. Western Pacific Railroad Co.(Cal.)106 P.2d 895, a case arising under the Federal Employers' Liability Act, we take the following excerpts:

"Over the objection of the defendant, there was admitted into evidence a statement made by the deceased to Parrott, a fellow brakeman.Parrott did not see the accident, but ran to the side of the deceased where he heard him 'holler'.He found the deceased lying across the tracks under the car which had run over him, cutting off his legs.Upon being asked if he then had any conversation with the deceased Parrott answered, 'I did--as I remember, I asked him, "How in the world did it happen, Joe?"'--'He said, "I got knocked off."'Being asked if that were all the conversation, Parrott replied, 'Well, he said, "I am all done, both legs cut off."'

"It is plaintiff's position that these statements of the deceased were properly admissible as part of the res gestae. * * * *

"In our opinion the rule to be followed is that where a declaration is made under the immediate influence of the occurrence to which it relates and so near the time of that occurrence as to negative any probability of fabrication, said declaration is admissible.Measured by this standard we conclude that the ruling of the trial court admitting the statement of the deceased herein was correct. * * * *

"A case so closely paralleling the case at bar that it requires comment is that of Chesapeake and Ohio R. Co. v. Mears,64 F.2d 291, 293, certiorari denied293 U.S. 557, 55 S.Ct. 69, 79 L.Ed. 659.In said case, it was alleged that Mears was knocked from the top of a car, on which he was walking, by another car placed too close to an adjoining track.No one saw the accident.He was last seen by witness Mills, and when the latter returned about ten minutes later, he found the deceased lying near track three with both legs cut off above the knees and rapidly bleeding to death.Mills asked what had happened, and deceased pointed to the car on track three, replied, 'That car knocked me off.'

"The court therein held the statement admissible and said: 'While a logical basis is not always given for the decisions, the cases almost uniformly hold that a statement made by an injured person as to the cause of his injury is admissible if the time which has elapsed since the injury is so short that he is still under the influence of the happening and his statement presumptively a spontaneous expression growing out of it and not the result of reason and reflection.'

"Said court also cited with approval the early case of Travellers' Ins. Co. v. Mosley,8 Wall. 397, 19 L.Ed. 437. * * * *

"So far as the record discloses there were no eyewitnesses to the accident in question.Necessarily, therefore, proof of the facts must be based on...