Coley v. Phillips
| Decision Date | 08 November 1944 |
| Docket Number | 454. |
| Citation | 31 S.E.2d 757,224 N.C. 618 |
| Parties | COLEY v. PHILLIPS. |
| Court | North Carolina Supreme Court |
John W. Hinsdale, of Raleigh, for appellant-defendant.
Bunn & Arendell, of Raleigh, for appellee-plaintiff.
This action was brought by the plaintiff, through her next friend to recover for an injury sustained in a collision with defendant's automobile, alleged to have been caused by the negligence of the defendant. In his answer, the defendant pleaded contributory negligence on the part of the plaintiff--at the time a child eight years of age.
There is much conflicting evidence as to the behavior of both plaintiff and defendant in the unfortunate experience, but the sufficiency of the evidence to go to the jury, both on the issue of defendant's negligence and that of contributory negligence of plaintiff, is not questioned. Both issues were submitted to the jury, and answered in favor of the plaintiff.
The defendant's appeal involves only two exceptions: The one to the exclusion of evidence supposed to be material on the issue of contributory negligence; and the other, to an instruction to the jury on the same subject. Other exceptions are abandoned or are formal.
(1) It was in evidence through defendant's witness, Finley, that 'a few seconds' after the child was hit the father came up out of the filed, and 'within two minutes' the mother came and was half crying. The witness was asked 'What did the mother say, if anything?' This was excluded on plaintiff's objection. If permitted to answer the witness would have said: 'The mother stated, 'I have told her about crossing that highway a number of times.'' The defendant contends that this statement, made by the stricken mother within two minutes of the occurrence, is a part of the res gestae; and is material as showing that the child was negligent on this occasion, or had been guilty of violating repeated warnings.
Since the mother, according to the evidence, did not see the collision at all, and knew nothing about the circumstances or the behavior either of the child or the defendant, it is difficult, indeed, to see how the declaration was 'the facts talking through the party'--to use the shorthand expression of the test as given in 32 C.J.S., Evidence, p. 45, § 417, and in 20 Am.Jur., p. 556, sec. 662, and in Batchelor v. Atlantic Coast Line R. Co., 196 N.C. 84, 144 S.E. 542, 60 A.L.R. 1091. If the mother was attempting to say she had performed her own duty, that fact had no relation to the issue; if she intended to admit or suggest the negligence of the child, not only was she not competent to do so in this way, but she could only have been a party 'talking about the facts' and facts of which she knew nothing.
For a declaration to be competent as part of the res gestae, at least three qualifying conditions must concur: (a) The declaration must be of such spontaneous character as to be a sufficient safeguard of its trustworthiness; that is, preclude the likelihood of reflection and fabrication; 32 C.J.S., Evidence, § 417, pp. 45, 46, supra; instinctive rather than narrative; Queen v. Ins. Co., 177 N.C. 34, 97 S.E. 741; Summerrow v. Baruch, 128 N.C. 202, 38 S.E. 861; (b) it must be contemporaneous with the transaction, or so closely connected with the main fact as to be practically inseparable therefrom; Queen v. Ins. Co., supra; and (c) must have some relevancy to the fact sought to be proved. It must be remembered that to be admissible the declaration must be a part of the res gestae--not merely amongst the res gestae--that is, it must be so interwoven into the transaction that it may be vested with the significance of a fact--that is, one of the res gestae or things done. They are called verbal facts or verbal acts. 20 Am.Jur., Evidence, Sec. 664. If not of this character, its mere nearness to the transaction in point of time has no significance.
No rule of universal application can be devised as to the time element; but the principle of relevancy to the fact sought to be proved by it admits of no relaxation. Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; 76 A.L.R. 1125, Annotation.
When the mother arrived, the transaction out of which the injury arose was a fait accompli--she was not then, and had not...
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