Cramer v. Parker

• Decision Date: 11 January 1937
• Docket Number: No. 18676.,18676.
• Citation: 100 S.W.2d 640
• Parties: CRAMER v. PARKER et al.
• Court: Missouri Court of Appeals

100 S.W.2d 640

CRAMER v. PARKER et al.

No. 18676.

Kansas City Court of Appeals. Missouri.

January 11, 1937.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be published in State Reports."

Action by Wanda Lee Cramer, by her father and next friend, C. P. Cramer, against Roy A. Parker and another. From a judgment for plaintiff, named defendant appeals.

Affirmed.

Paul C. Sprinkle, of Kansas City, for appellant.

Burns & White, of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3,200. Defendant has appealed.

The facts show that plaintiff, a child of 5½ years of age, was crossing Highway No. 73-W, a public highway, running north and south, in the city of Garnett, Kansas, when she was struck by an automobile being driven by the defendant. Plaintiff had started to cross said highway from a driveway situated upon the premises and just south of the house where she lived. The premises fronted on the highway. Plaintiff was walking on the highway in a southeasterly direction when she was struck by the automobile proceeding north upon the highway. Plaintiff's mother was standing in the front yard of their home talking to her sister. Immediately after she was struck plaintiff was picked up by her mother who took her into the yard, stopping at a fish pool near the front porch of the house. Here the mother threw water into plaintiff's face in an effort to restore the child to consciousness, the latter having been rendered unconscious by the impact. Thereafter, the mother removed plaintiff to the front porch of the house. Someone called plaintiff's father, who was at his work about eight blocks from his home. The father immediately got into his car and went home, arriving there about two or three minutes after he was called. When he arrived he found the child on the porch and unconscious. Both of her legs were broken and she had blood and cuts on her face. The broken legs were in an unnatural position when the father arrived. The mother was excited and nervous and apparently was under the influence of the accident. There was a crowd of about twenty-five people which had gathered after the collision.

Defendant offered to prove that when the father arrived home the mother stated, in response to an inquiry by him, that defendant "was in no way to blame." The court sustained plaintiff's objection to this offer. The action of the court in this regard is assigned as error by the defendant.

It is claimed that this alleged statement of the mother was admissible as a part of the res gestae. In this connection defendant says:

"The record clearly disclosed that the father of the plaintiff reached home within two or three minutes after the occurrence and that immediately he inquired of his wife who caused the accident, and an offer was thereupon made to prove that she pointed to the defendant, and then said `He was not to blame' or `Don't blame him.'"

One trouble with this contention of the defendant is that there is no evidence that the father reached home two or three minutes after plaintiff was struck by the automobile, the evidence being, merely, that he arrived two or three minutes after he was called by telephone. As to the time elapsing between the collision and the telephone call, there is nothing in the record to indicate. The rule relative to admission of testimony, as a part of the res gestae, is well stated in Leahey v. Cass Avenue & Fair Grounds Railway Company, 97 Mo. 165, 172, 173, 10 S.W. 58, 60, 10 Am.St.Rep. 300:

"`An act cannot be varied, qualified, or explained, either by a declaration which amounts to no more than a mere narrative of a past occurrence, or of an isolated conversation held, or an isolated act done, at a later period.' * * *

"The better reasoning is that the declaration, to be a part of the res gestæ, need not be coincident in point of time with the main fact to be proved. It is enough that the two are so clearly connected that the declaration can, in the ordinary course of affairs, be said to be the spontaneous exclamation of the real cause. The declaration is, then, a verbal act, and may well be said to be a part of the main fact or transaction. Again, if the subsequent declaration and the main fact at issue, taken together, form a continuous transaction, then the declaration is admissible. Much, therefore, depends upon the nature and character of the transaction in question; for it may be, and often is, of a continuing character. It cannot be said that a mere subsequent declaration will of itself furnish a sufficient connecting circumstance.

"Applying these principles to the present case, it is clear that what the boy said as to show he got under the car, when first picked up, was properly received as evidence of the cause of his injuries. He was then at the scene of the accident, surrounded by persons who witnessed the calamity, and his declarations then made were verbal acts, though made after the accident had happened.

"But what he said after he had been removed to the house of Mr. Keating, after the persons connected with the accident had separated, and in answer to questions as to how he got hurt, should have been excluded. These answers were but narratives of what had transpired, made and intended as such. The time between the accident and making these declarations is short, it is true, but they are disconnected from the main fact."

While it is true that the amount of time transpiring between the main occurrence and the declaration is not determinative of the question as to whether the latter is a part of the res gestae, it ordinarily has a bearing upon that question when taken with reference to the other facts present. In the case at bar there is a hiatus in the matter of proof as to the time elapsing between the collision and the declaration. The child had been moved twice and had been removed from the scene of the collision at the time the declaration was made and it does not appear with any certainty that the declaration was a spontaneous exclamation, especially in view of the fact that the alleged statement of the mother was merely an answer to a question propounded to her. While we do not mean to say that any one of these circumstances, standing alone, would render the statement of the mother inadmissible, in view of other facts present bearing upon the subject, we do say that, in taking them together, defendant did not offer sufficient proof connecting the main occurrence with the statement to show that the latter was not merely a narrative of a past occurrence or event. The court did not commit error in excluding the testimony.

We have examined the cases of Unrein v. Oklahoma Hide Company, 295 Mo. 353, 244 S.W. 924; Pryor v. Payne, 304 Mo. 560, 263 S.W. 982; Rosenweig v. Wells, 308 Mo. 617, 273 S.W. 1071; Beeson v. Fleming, 315 Mo. 177, 285 S.W. 708; Woods v. Railway Company (Mo.Sup.) 8 S.W.(2d) 922; Smith v. Bridge Company, 326 Mo. 109, 30 S.W.(2d) 1077; Bennette v. Hader, 337 Mo. 977, 87 S.W.(2d) 413, 100 A.L.R. 1190; and other cases cited by the defendant on this subject. The rule relative to admissions of declarations as a part of the res gestae is well settled. The difficulty lies in the application of the rule. The facts in each case are different and those in the case at bar are unlike any present in the cases cited by the defendant.

At the request of the plaintiff the court gave her instructions 1 and 2, reading as follows:

"1. You are instructed that it was the duty of the defendant while driving an automobile on the public highways of Kansas to drive the same at such a rate of speed as not to endanger the life or limb of any persons and at a rate of speed reasonable and proper, having regard for the traffic and use of said highway, and at all times to keep a lookout for persons on such highway. Therefore you are instructed that if you find and believe from the evidence that Highway No. 73-W was a public highway in the State of Kansas at the time and place mentioned, if so, and you further find from the evidence that defendant was driving an automobile in a northerly direction on said highway at such time and place, if so, and you further find from the evidence that the plaintiff was crossing said highway ahead of defendant's oncoming automobile and crossing a path in said highway being travelled by defendant's oncoming automobile, if you so find, and that plaintiff while crossing said highway, if you so find, came into a position of imminent peril and danger, if so, from the movements of defendant's oncoming automobile, if so, and was unable to extricate herself from said position of peril and danger, if so, and you further find that after plaintiff came into such position of peril and danger, if so, and become unable to extricate herself therefrom, if so, the defendant by the exercise of ordinary care and the use of the appliances at hand and with safety to himself and others, if so, could have stopped his automobile or slackened the speed thereof, or turned same to one side or the other, and thereby avoided colliding with plaintiff, if you so find, and you further find that the defendant negligently failed to so do, if so, then you will find the defendant was negligent, and if you further find from the evidence that as a direct result of said negligence of the defendant, if you so find, defendant's automobile struck and injured the plaintiff, if so, then your verdict must be for plaintiff and against the defendant.

"`Negligence', `negligent' or `negligently' as used herein means the failure to exercise ordinary care.

"`Ordinary care' as used herein means the failure to exercise that degree of care usually exercised by an ordinarily careful and prudent person under the same or similar circumstances."

"2. You are instructed that in the operation of any motor car on the highway of any city in the State of Kansas, it...