Christensen v. Economy Fire & Cas. Co.

• Decision Date: 29 March 1977
• Docket Number: No. 75-196,75-196
• Citation: 77 Wis.2d 50,252 N.W.2d 81
• Parties: Delores CHRISTENSEN, Plaintiff-Respondent, v. ECONOMY FIRE AND CASUALTY COMPANY, a Foreign Corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 81

252 N.W.2d 81

77 Wis.2d 50

Delores CHRISTENSEN, Plaintiff-Respondent, v. ECONOMY FIRE AND CASUALTY COMPANY, a Foreign Corporation Defendant-Appellant.

No. 75-196.

Supreme Court of Wisconsin.

Argued Nov. 30, 1976.

Decided March 29, 1977.

Kaftan, Kaftan, Kaftan, Kuehne & Van Egeren, S. C., Green Bay, and oral argument by Fred F. Kaftan, Green Bay, for defendant-appellant.

Jack J. Schumacher, Shawano, for plaintiff-respondent.

ABRAHAMSON, Justice.

At about 6:25 a. m. on July 12, 1972, a head-on crash of a pick-up truck and a carry-all van occurred resulting in the deaths of both drivers, each of whom was the sole occupant of his vehicle. There were no eyewitnesses. One driver died immediately but the other, David Wroblewski, survived approximately forty-five minutes after the mishap. During the time Wroblewski was at the site waiting for an ambulance he spoke with James Horsens, a motorist who happened onto the scene shortly after the accident. Wroblewski's statements during that conversation concerned, among other things, the cause of the crash, and these statements form the basis for this appeal.

The issue before the court is whether the trial court properly excluded the testimony of James Horsens who would relate the words of David Wroblewski. It is conceded that Horsens' repetition of Wroblewski's statements is hearsay and is not admissible except as specially provided by rule. ¹

At the trial, the court held an in camera hearing to evaluate the offer of proof made by Economy Fire and Casualty Company concerning Horsens' testimony to determine whether the testimony would be admissible under one of the exceptions to the hearsay rule. ² The witness stated that he arrived on the scene while water and steam were still spewing from each vehicle. After determining that the other driver was unconscious he went to Wroblewski's van and, in response to a plea for help, unpinned him from inside it. At this point Wroblewski asked Horsens, "Why did it happen to me, what could I do, the guy was coming at me." He also asked about the condition of the other driver, whom he was told was unconscious but all right, and he continued to wonder out loud why the accident had happened to him and what else he could have done to avoid it since the other guy was coming at him.

Horsens testified that Wroblewski was coughing, spitting blood and gurgling. Unable to lie down because of his pain, the victim sat up with his arms crossed over his chest. He expressed fear of dying and he repeatedly asked why the ambulance was taking so long to arrive. Horsens continued the conversation, reassuring Wroblewski that he would not die and responding to his questions in general to keep his mind off the pain.

The trial court concluded the in-chambers proceeding by rejecting the offer of proof, ruling the testimony inadmissible under any of the proffered hearsay rule exceptions.

The verdict assigned fifty percent causal negligence to each driver and assessed damages. After post-verdict modification, a judgment was entered for $15,190.14 against Economy Fire and Casualty Company.

The question of admissibility is one of law which is determined by the judge. We have held on numerous occasions that the decision on the admissibility of a hearsay statement is within the discretion of the trial court. ³ Such discretion will not be reversed unless it is abused or is premised upon an erroneous view of the law. The term discretion contemplates a process of reasoning which depends on facts that are of record or reasonably derived by inference from the record and a conclusion based on a logical rationale founded on proper legal standards. The record should show that the discretion was in fact exercised and the basis of that exercise. First Wisconsin Nat'l Bank of Oshkosh v. KSW Investments, Inc., 71 Wis.2d 359, 364, 238 N.W.2d 123 (1976); McCleary v. State, 49 Wis.2d 263, 277, 278, 182 N.W.2d 512 (1971); State v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733 (1968); State ex rel. Schulter v. Roraff, 39 Wis.2d 342, 349, 350, 159 N.W.2d 25 (1968), cert. denied 393 U.S. 1066, 89 S.Ct. 716, 21 L.Ed.2d 706.

From an examination of the record in the instant case we believe that the judge had a mistaken view of the law and that to the extent he was exercising his discretion, it was exercised on improper grounds. The trial court improperly determined that Horsens' testimony, admittedly hearsay insofar as it relates to Wroblewski's statements, was not admissible under sec. 908.03(2), Rules of Evidence, the excited utterance exception.

The excited utterance exception, which was formerly part of the res gestae exception, ⁴ is based upon spontaneity and stress which endow such statements with sufficient trustworthiness to overcome the reasons for exclusion of hearsay. In determining whether a statement qualifies as an excited utterance, the important factors for the judge's consideration are timing and stress. As we said in Wilder v. Classified Risk Ins. Co., 47 Wis.2d 286, 292, 177 N.W.2d 109, 113-114 (1970), a case no less applicable because it concerned the older res gestae exception:

"It must be shown that the statement was made so spontaneously or under such psychological or physical pressure or excitement that the rational mind could not interpose itself between the spontaneous statement or utterance stimulated by the event and the event itself. The psychological basis for the res gestae exception is that people instinctively tell the truth but when they have time to stop and think they may lie. . . . "

As Wilder makes clear, timing, the lapse between the triggering event and the utterance is a key factor. However, the time element is potentially longer under sec. 908.03(2) than under sec. 908.03(1). Under sec. 908.03(2) time is measured by the duration of the condition of excitement rather than mere time lapse from the event or condition described. ⁵ The significant factor is the stress or nervous shock acting on the declarant at the time of the statement. The statements of a declarant who demonstrates the opportunity and capacity to review the accident and to calculate the effect of his statements do not qualify as excited utterances. ⁶ Conversely, statements of declarants whose condition at the time of their declarations indicates that they are still under the shock of their injuries ⁷ or other stress due to special circumstances, ⁸ will be admitted under this exception. It is the condition of excitement that temporarily stills the capacity for reflection which is the significant factor assuring trustworthiness, assuring that the declarant lacked the capacity to fabricate. The court must assess the "special circumstances in which the statement is made (that) make it reliable and trustworthy." Cossette v. Lepp, 38 Wis.2d 392, 398, 157 N.W.2d 629, 632 (1968). In Cossette, supra at 397, 157 N.W.2d at 631, we held that the continuing stress acting upon the declarant was sufficient to render his statement trustworthy:

"Under the circumstances, it would not be unreasonable to conclude, as the trial court did, that Cossette was under the stress of nervous excitement when he made his statement to Vite, the first person to come to his aid. Cossette at that time, a sufferer from extreme asthma, could well have been in fear of his life. Cossette's reply that he 'tripped and fell' was made to the most natural question any person would ask under the circumstance, namely, 'What happened to you?' Wigmore, while discussing this exact point expresses the view that when such a statement is made 'in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief. . . . "

Thus timing and stress which produce spontaneity are the essentials of admissibility under the excited utterance exception. ⁹

It is clear from the record that Horsens arrived on the scene within minutes of the impact. Despite massive front-end damage, both vehicles were still spouting water and steam. Wroblewski was in pain, spitting blood, gurgling, coughing and concerned about dying. The record does not show that the court considered either the short time lapse between the event and the declaration or the extent of the victim's injuries which contributed to his shock and stress. Instead the court stressed the self-serving nature of the declaration and its suspicion that the statement was made with a view to later litigation. The court felt that "in such a situation no one would admit he was at fault," noting that after the accident the declarant "ended up on the wrong side of the road." The court's decision over emphasizes the self-serving nature of the statement and the fact that the other driver was not alive to refute the testimony. The court mistakenly concluded that Cossette, supra, did not apply to this case because the Cossette Case did not deal with the negligence of the declarant. Sec. 908.03(2) neither prohibits a self-serving statement ¹⁰ nor requires the availability of a witness to refute the declarant.

The issue for the judge is whether the special circumstances existed, as required by sec. 908.03(2), which make the statement reliable and trustworthy. Here, the trial court in refusing to admit the statement stressed its visceral reaction to the untrustworthiness of the statement rather than the objective circumstances set forth in sec. 908.03(2), Rules of Evidence, that will lead the court to the conclusion that the statements are or are not trustworthy. The judge did not state the facts or inferences therefrom upon which he reached his conclusion that the statements are not trustworthy under sec. 908.03(2). While the court's statements on trustworthiness are adjunctively relevant, they do not import a correct view of the law or an exercise of judicial discretion on permissible grounds.

Even if the hearsay statement was admissible under sec....