Elek v. Boyce

Decision Date14 January 1970
Docket NumberCiv. A. No. 69-10,69-11.
Citation308 F. Supp. 26
PartiesMargaret ELEK, Stephen Elek, Plaintiffs, v. Thomas P. BOYCE, Defendant.
CourtU.S. District Court — District of South Carolina

Gary D. Brown, of Brown & Brown, Ridgeland, S. C., for plaintiffs.

Joseph R. Young, of Young, Clement & Rivers, Charleston, S. C., for defendant.

HEMPHILL, District Judge.

Assigning error to court upon two grounds, plaintiffs move for a judgment non obstante veredicto or, in the alternative a new trial, as aftermath to an unfavorable verdict at the hands of a jury.

Initially, plaintiffs contend that the court erred in the exclusion from the evidence of certain statements which plaintiffs insist are admissible on a part of res gestae. The accident out of which the present litigation arose occurred on April 17, 1968, on U. S. Highway 17, on a bridge in Jasper County, South Carolina. At the time of the accident plaintiffs, Mr. and Mrs. Elek, were traveling in a southerly direction on U. S. Highway 17; defendant was traveling in a northerly direction. Plaintiffs' theory of the case is that defendant was attempting to pass another automobile (hereinafter referred to as the Pacheco automobile) while driving in a reckless manner and in so doing crossed into plaintiffs' lane of travel where, due to defendant's negligence, the accident occurred. Defendant insisted that he was proceeding in a northerly direction in his lane of travel, that when plaintiffs' automobile veered over into his lane the collision occurred.

Upon trial of the case plaintiffs attempted to introduce the following statement made by Mrs. Pacheco to Mrs. Elek (plaintiff) immediately after the accident: "Lady, lady are you hurt? I knew that man (defendant) was not going to get to his destination. He was crazy. He was going too fast." Mrs. Pacheco was a passenger in the car that had been immediately ahead of defendant's automobile and, depending upon which view of the case is taken, which he had immediately passed or was in the act of passing when the accident occurred. In either event, the Pacheco automobile was involved in the accident and Mrs. Elek testified, out of the jury's presence, that immediately thereafter, Mrs. Pacheco went over to plaintiffs' car and made the statement referred to above. The question now before the court is whether Mrs. Pacheco's statement is admissible evidence as a part of res gestae. If the answer is in the affirmative, exclusion would represent error entitling plaintiff to a new trial.

The South Carolina cases universally accord the trial court a large degree of discretion in making a determination as to whether or not a statement, which would otherwise be excluded as hearsay, should be admitted as a part of res gestae. The reason for the rule is, at least in part, that the trial judge is in a position to view all the circumstances in deciding whether the testimony sought to be introduced is of any probative value in elucidating the relevant issues. Neal v. Southern Ry. Co., 162 S.C. 288, 160 S. E. 837; Stevens v. Moore et al, 211 S.C. 498, 46 S.E.2d 73; Marks v. I. M. Pearlstine & Sons, 203 S.C. 318, 26 S.E. 2d 835 (1943); Cobb v. Southern Public Utilities Co., 181 S.C. 310, 187 S.E. 363; Lazar v. Great Atlantic & Pacific Tea Co., 197 S.C. 74, 14 S.E.2d 560; Van Boven v. F. W. Woolworth Co., 239 S.C. 519, 123 S.E.2d 862. Nevertheless the court does not wish to bottom its decision on the basis of discretion. The relevant inquiry is whether the statement would have tended to prove or disprove any facts in issue and in answering that question the court seeks guidance from the South Carolina cases on the point.

To be admissible as res gestae, a hearsay statement must be a contemporaneous, spontaneous declaration which springs out of the transaction in a manner which precludes deliberate design. "The general rule is that the declarations must be substantially contemporaneous with the litigated transaction, and be the instinctive spontaneous utterances of the mind while under the active, immediate influences of the transaction; the circumstances precluding the idea that the utterances are the result of reflection or designed to make false or self-serving declarations." State v. McDaniel, 68 S.C. 304, 47 S.E. 384; see also Lowe v. Fickling, 207 S.C. 442, 36 S.E.2d 293; Marks v. I. M. Pearlstine & Sons, supra; Marshall v. Thomason, 241 S.C. 84, 127 S.E.2d 177 (1962).

Here it cannot be questioned that Mrs. Pacheco's statement was both spontaneous and contemporaneous. There is an additional requirement to qualify a statement as a part of res gestae and that is that it must tend to explain the event in question or unfold the main transaction. Alternatively stated, the declarations must be relevant to the factual issue and shed light upon the truth as to what transpired. It must be borne in mind that declarations, admissible as res gestae, are hearsay. The declarant is not in court and not subject to direct or cross-examination. Thus vague or indefinite statements, or mere opinions, should be excluded. As the South Carolina Supreme Court stated the statement must be "explanatory of the main fact." Van Boven v. Woolworth Co., supra. The explanatory requirement of the declaration was explained in Bagwell v. McLellan Stores Co., 216 S.C. 207, 57 S.E.2d 257:

It must be conceded that the statement in question was sufficiently near in point of time and place to come within the res gestae rule, but another essential requirement is that `it must possess the very characteristic of being well calculated to unfold the nature and quality of the main fact, and so harmonize with it as to obviously constitute a single transaction.' State v. Long, 186 S.C. 439, 195 S.E. 624. The declaration must explain, elucidate or in some way characterize that event. Lazar v. Great Atlantic & Pacific Tea Co. et al., 197 S.C. 74, 14 S. E.2d 560; Marks v. I. M. Pearlstine & Sons, 203 S.C. 318, 26 S.E.2d 835. The purpose of permitting the introduction of this class of evidence is to prove facts not opinions.

Similarly, in State v. Long, 186 S.C. 439, 195 S.E. 624, is found the following pertinent language:

Statements or circumstances which are explanatory of the main fact are admissible in evidence as a part of the res gestae. Benbow v. Harvin, 92 S.C. 180, 75 S.E. 414. Its explanatory nature is essential, for a substantial coincidence in point of time with the particular fact is not sufficient to render a declaration or accompanying fact admissible as a part of the res gestae; it must possess the very characteristic of being well calculated to unfold the nature and quality of the main fact, and so harmonize with it as to obviously constitute a single transaction. Turpin v. Brannon, 3 McCord 261, 14 S.C.L. 261; Hall v. James, 3 McCord 222, 14 S.C.L. 222. Of course, the utterance in question must be spontaneous, the test being, it has been said, whether the declaration was the facts talking through the party, or the party talking about the facts. Murray v. Boston, etc., R., 72 N.H. 32, 54 A. 289, 61 L.R.A. 495, 101 Am.St. Rep. 660; Funderburk v. Powell et al., 181 S.C. 412, 187 S.E. 742.

The statement made by Mrs. Pacheco and sought to be introduced in the instant case was: "Lady, lady are you hurt? I knew that man was not going to get to his destination. He was crazy. He was going too fast." The first three sentences merely represent irrelevant opinion which neither tend to prove or disprove the fact in issue—which party was at fault. The factual theories upon which the parties proceeded at trial was that each was in the other's lane of travel when the accident occurred. Mrs. Pacheco's statement regarding defendant's excessive speed does not elucidate that question. The statement does not explain the transaction or shed light on how the accident occurred, it does not place defendant's automobile in plaintiffs' lane of travel. The most that can be gleaned from the Pacheco statement is an inference that defendant was improperly operating his automobile. Absent is any causal connection between such negligent operation and the accident. Had the statement been introduced it would have indicated to the jury only an opinion on the part of the declarant that defendant was at fault. It was not a factual statement as to how the accident occurred and it is not altogether clear as to what Mrs. Pacheco intended to convey by the statement. As noted above this is a hearsay statement offered without benefit of direct or cross-examination. To admit such a vague statement could only lead the jury to speculate as to what Mrs. Pacheco meant. As stated in Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742, to be admitted under the doctrine of res gestae, the declaration must have been the facts speaking through the person, rather than the person speaking about the facts. Accordingly, the court concludes the statement failed to meet the requirements for admission as a part of res gestae.

York v. Charles, 132 S.C. 230, 128 S. E. 29 (1925), involved a negligence action arising out of an automobile collision. The defendant was allowed to testify that a bystander remarked to him immediately after the accident, "It is clearly the other man's fault." The statement is quite obviously an opinion regarding fault rather than a factual statement of how the accident occurred. In the instant case the position of the automobiles was at issue; therefore, the statement concerning speed was irrelevant. An opinion on Mrs. Pacheco's part that defendant was at fault is inferable from her statement; but it falls short of the clear opinion regarding fault in York v. Charles. This court is of the opinion the elasticity of the res gestae exception to the hearsay rule was overstretched in York.

York v. Charles, supra, was treated in 163 A.L.R. 15, at page 189, as projecting a rule that a declaration of opinion is admissible if the other requirements of res...

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  • Virts v. Bailey
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • February 7, 1992
    ...such testimony when it concerns matters "in the common knowledge of jurors." See Persinger, 920 F.2d at 1188; see also Elek v. Boyce, 308 F. Supp. 26, 33 (D.S.C. 1970) (citations omitted) ("[T]he opinion of a witness is not admissible where all the facts are capable of being clearly detaile......

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