Blair v. Rogers

• Decision Date: 28 March 1939
• Docket Number: 27870.
• Parties: BLAIR et al. v. ROGERS.
• Court: Oklahoma Supreme Court

89 P.2d 928

185 Okla. 63, 1939 OK 171

BLAIR et al. v. ROGERS.

No. 27870.

Supreme Court of Oklahoma

March 28, 1939

Rehearing Denied May 2, 1939.

Syllabus by the Court.

Dying declarations are not admissible in civil actions in Oklahoma.

Appeal from District Court, Oklahoma County; R. P. Hill, Judge.

Action by Myrtle Rogers against M. P. Blair and the Fairmont Creamery Company to recover for the death of her husband. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment reversed.

Flansburg Lee & Sheldahl, of Lincoln, Neb., and Twyford & Smith and William J. Crowe, all of Oklahoma City, for plaintiff in error Fairmont Creamery Co.

Gill & Caldwell, of Oklahoma City, for plaintiff in error M. P Blair.

Gomer Smith and Herbert K. Hyde, both of Oklahoma City (Nelson Rosen, of Oklahoma City, of counsel), for defendant in error.

BAYLESS Chief Justice.

Myrtle Rogers, the widow of S. A. Rogers deceased, recovered a judgment against M. P. Blair and Fairmont Creamery Co., for the benefit of herself and daughter, as damages for the death of the said S. A. Rogers occasioned by the negligence of the defendants. The cause was tried in the District Court of Oklahoma County, and the defendants have appealed.

There is one issue of law presented to us by the appealing parties which is paramount, and since we are deciding it in accordance with their contention and are reversing the judgment, little else need be discussed.

About three days after the accident, and at a time when S. A Rogers was in articulo mortis, Rogers made statements to his wife and to his fellow workers regarding the facts of his injury. The trial court admitted these statements in evidence, over the objections of the defendants, upon the theory they were dying declarations and admissible in civil actions. The first error argued is that the trial judge erred in admitting this evidence, and that it was prejudicial to the defendants.

Both sides have adequately briefed the point, and they are not in disagreement relating to the general rule or to the criticisms thereof. It may be said that it is a rule of such antiquity and universality as to almost require no discussion. But the plaintiff has so earnestly presented the matter; and urged that since this is the first time the matter has had the attention of this court the criticisms leveled at the general rule justify this court in adopting the rule that dying declarations are admissible in civil actions in this State; that for these reasons, we have decided to consider the rule in the light of its history and these criticisms.

The rule is that dying declarations are hearsay and not admissible in civil actions, 1 R.C.L. 540; 22 C.J. 258; and cases from the following states: Alabama, Arkansas, Connecticut, Georgia, Indiana, Idaho, Iowa, Illinois, Kentucky, Louisiana, Massachusetts, Missouri, Michigan, Nebraska, New Jersey, New York, North Carolina, Ohio, North Dakota, Pennsylvania, Tennessee, Texas, Washington and Wisconsin. See, also, 49 A.L.R. 1287, 91 A.L.R. 561. While it is a criminal case, the opinion of the Supreme Court of the United States in Donnelly v. U. S., 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820, Ann.Cas.1913E, 710, contains an excellent discussion of the rule relating to the admissibility of dying declarations in homicide cases, and the reasons why this exception to the hearsay evidence rule should not be extended further.

In the United States there is, at this time, singularly little division among the opinions on this point. As contrasted to the array of jurisdictions applying the rule as above stated, only five states apply the contrary rule and only one of these by judicial fiat. In Kansas the Supreme Court considered the general rule, and the criticisms thereof, and deliberately departed from the general rule. Thurston v. Fritz, 91 Kan. 468, 138 P. 625, 50 L.R.A., N.S., 1167, Ann.Cas.1915D, 212. In Oregon there was a statute expressly admitting dying declarations in criminal cases, but later this statute was amended by striking out the words "in criminal cases", and in McCarty v. Sirianni, 132 Or. 290, 285 P. 825, it was held that this amendment clearly evinced the legislative intent to make dying declarations admissible in all cases, criminal and civil. When considering this matter further in the later case of McCredie v. Commercial Cas. Ins. Co., 142 Or. 229, 20 P.2d 232, 91 A.L.R. 557, that court went further and adopted the view of the Kansas Court. Since it took the first step in this direction at the behest of the Legislature, it was no difficult matter for it to see logical reasons for adopting this as a rule of reason; but it is difficult for us to know what it would have held in the absence of this legislative inducement. In Arkansas, prior to the enactment of sec. 1, Act No. 45, page 90, of 1935 (approved March 16, 1935), the Court followed the general rule. St. Louis, I. M. & S. R. Co. v. Enlow, 1914, 115 Ark. 584, 171 S.W. 912. The same was true in North Carolina prior to the enactment of sec. 160 N.C.Code Ann.1927. Barfield v. Britt, 2 Jones Law 41, 47 N.C. 41, 62 Am.Dec. 190, expressly overruling McFarland v. Shaw, 2 Car.Law R. 102, 4 N.C. 200. The general rule was long applied in Massachusetts (Chapin v. Inhabitants, 9 Gray 244, 69 Am.Dec. 281, and Thayer v. Lombard, 1896, 165 Mass. 174, 42 N.E. 563, 52 Am.St.Rep. 507), but under sec. 65, Ch. 233, Gen.Laws Mass.Ter.Ed., dying declarations are admissible in civil actions in certain circumstances. See O'Brien v. Bernoi, Mass., 8 N.E.2d 780. Thus is shown the extent of the departure from the general rule, and the reasons therefor.

The changes brought about in Oregon, Arkansas, Massachusetts and North Carolina become significant in the light of the criticisms of the general rule made by Professor Wigmore. Wigmore on Evidence, 2nd Ed., Vol. 3, page 160, secs. 1430 et seq. While he attacks the general rule which excludes such declarations in civil actions as being based upon dubious authority and as entirely lacking in logic to support it or to differentiate it from the rule in homicide cases, he nevertheless suggests that changes be accomplished by legislative action rather than by judicial fiat. This suggestion takes on added weight when the numerous kinds of actions in which such declarations would be admissible in civil actions, if the general rule is rejected, are contrasted with the limited type of actions wherein such are admitted in Arkansas, Massachusetts and North Carolina. We observe that the general rule with respect to criminal cases is that such declarations are admissible in homicide cases only, and Professor Wigmore's stands against this rule as strongly as against the rule with respect to civil actions. We agree with him that if another rule is to be adopted, the legislature should provide for it.

It may be said that since this is the first time this Court has had occasion to pass upon the matter that it is not bound to wait for legislative action, but may join in the procession already formed and follow after them. The difficulty with this is that we are not impressed with the correctness of their position.

The rule that dying declarations are admissible in homicide cases is of universal application in the United States, but this rule has not escaped the severest criticism. Nor has it been adopted and applied without difficulty in logic and reason in view of the general constitutional provisions relating to fair trials in criminal prosecutions. 30 C.J. 251 et seq., and especially secs. 495 and 496 and the cases cited and discussed thereunder. We call attention to Railing v. Comm., 110 Pa. 100, 1 A. 314, 6 Am.Crim.Rep. 7 and Donnelly v. United States, supra. Perhaps the most candid statement of the reason back of the rule in homicide cases is that in 1 R.C.L. 529: "* * * of public policy and necessity * * *". The conditions which bring public policy or necessity into homicide cases, and the circumstances under which these declarations are made competent, may not be more available nor are they more superable in homicide cases than in other criminal cases or civil actions. But the rules are the direct opposites by long usage and general approbation.

From the arguments of plaintiff's counsel before the Court, and from their briefs we apprehended that there might be discovered a well defined tendency in the later decisions, on the part of the courts to veer away from the general rule with respect to civil actions, because of the criticism heretofore mentioned. Our search of the decisions does not uncover such a tendency. Schabo v. Wolf etc. Co., 201 Wis. 190, 229 N.W. 549; Nichols v. Smith's Bakery, 1928, 218 Ala. 607, 119 So. 638; Davis v. Met. Ins. Co., 1934, 48 Ga.App. 179, 172 S.E. 467, and Clark v. State, 1926, 114 Neb. 818, 211 N.W. 16, 49 A.L.R. 1280. See other cases cited under Evidence, k 275 1/2, Am. Dig. The last case cited, supra, was a criminal prosecution for sodomy, and the dying declaration of the injured party was refused because such declarations are admissible only in homicide cases. There was a strong dissent. In the Alabama case, supra, it is said [218 Ala. 607, 119 So. 639]: "Dying declarations are inadmissible in any form of civil action. We are not unmindful of the criticisms leveled at this rule. We are not disposed to debate them further than to say like criticisms are indulged as against their admission on the doctrine of necessity in murder trials. We adhere to the law as written." There has been a tendency to enact statutes to this purpose in more recent times, but no tendency on the part of the court's to do so of their volition.

The discussion of the subject which appears in the annotation in 49 A.L.R. 1282-1284, very well sums up the general rule...