Elledge v. Great Am. Indem. Co.

• Citation: 312 S.W.2d 722
• Decision Date: 17 April 1958
• Docket Number: No. 13266,13266
• Parties: Opal Mae ELLEDGE, a Widow, et al., Appellants, v. GREAT AMERICAN INDEMNITY COMPANY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 722

312 S.W.2d 722

Opal Mae ELLEDGE, a Widow, et al., Appellants, v. GREAT AMERICAN INDEMNITY COMPANY, Appellee.

No. 13266.

Court of Civil Appeals of Texas, Houston.

April 17, 1958.

Rehearing Denied May 8, 1958.

Joseph Kirchheimer, Houston, for appellant.

Kemper & Kemper, Houston, T. M. Kemper, Houston, of counsel, for appellee.

WERLEIN, Justice.

This is a workmen's compensation suit brought by appellants, Opal Mae Elledge Chriceol (formerly Opal Mae Elledge, widow of Hugh Edward Elledge), joined by her husband Walter Chriceol, individually and as next friend of her minor children, David Lee Elledge, Wayne Edward Elledge, and Gary Dean Elledge, and David Lee Elledge, 19 years of age and married, against Great American Indemnity Company to recover compensation insurance as a result of the death of the said Hugh Edward Elledge. Appellants alleged that Hugh Edward Elledge on or about September 4, 1956, while in the course of his employment with Ervine & Bishop, sustained injuries resulting in his death. He was found dead on the premises of Ervine & Bishop on the morning of September 4, 1956. The parties to the suit stipulated that he died of an accidental injury on September 4, 1956, while on the premises of Ervine & Bishop, and that his average weekly wage was $42. The trial was to a jury, and after appellants rested the trial court directed that the jury return a verdict for appellee. Appellants have duly perfected their appeal to this Court.

It was proved that Hugh Edward Elledge, deceased, was and had been an employee of Ervine & Bishop for fifteen years prior to his death. He was a maintenance man, who helped operate the mill, and he was also a general handyman around the place. He and Mr. Pfeiffer, the mill superintendent, were the only white men who worked at the plant of Ervine & Bishop. The average work day was from 7:30 a. m. to 4:30 p. m. However, Mrs. Chriceol testified that the present plant had been located at 100 Katy Road since 1954 and that her husband had gone up there and worked at night. She testified that she had taken Elledge to the plant but did not stay out there when he night-watched because she had children. She had seen him go out there and unload things at the plant, and he had brought home overtime money to her from his night work.

Mr. Weber, an accountant for Ervine & Bishop and also for the Ranger Chemical Company, testified that the plant on Katy Road had an automatic sprinkler system to control fires and that a short time prior to September 3, 1956, the system was not operating, but that it was operating after September 3rd and the tank had been repaired. Apparently, Mr. Weber later learned from the A. D. T. Company that the repair job was completed on September 2, 1956. There is nothing to indicate that the deceased Elledge was aware of such fact. City of Houston police officer C. B. Massey testified that he received instructions from Captain Frank Murray of the Homicide Division to go to the plant at 100 Katy Road, which was the plant of Ervine & Bishop and Ranger Chemical Company, and that he arrived at approximately 8:30 a. m. on September 4, 1956. He saw Elledge's body lying in a pasture or field at the rear of the building on the premises of Ervin & Bishop. He examined the body and found a 2-inch jagged wound inside the left elbow. There was a barbed-wire fence about 10 feet from the body. There were some blood spots on the barbs of the wire of such fence and several blood spots on the ground underneath the fence and leading away from the fence toward the body. The body had nothing on it except a pair of trousers and belt. There were no weapons and no flashlight near the body. The body was muddy as if it might have rolled on the ground, and it had dry blood on it. Officer Massey testified that in one of the warehouses he saw a cot that looked like it had been slept in. There was found on the body a black leather billfold containing miscellaneous papers, one set of keys and 15 cents in change.

Appellants' First and Second Points of Error are to the effect that the trial court erred in refusing to permit Opal Mae Elledge Chriceol to testify as to certain statements made to her by the deceased on the night of September 3, 1956, preceding his death on the morning of September 4, 1956; and also in refusing to permit Barbara Jean Noack to testify to such statements, she having overheard them.

The statements were made by deceased to his wife about 11:00 or 11:30 p. m. on September 3rd. The deceased had called for his wife about 9:00 p. m. and the two drove to the home of their son around 11:00 or 11:30 p. m. Appellants perfected their bills of exceptions in the absence of the jury showing what both Mrs. Chriceol and Mrs. Noack would have testified. The following testimony was adduced in perfecting the bill covering the testimony that Mrs. Chriceol would have given:

'Q. Then what did you say?

'A. I said then let's go over to 2622 Roy Circle and spend the night.

'Q. And what did he say?

'A. He said: 'No, I can't. I have to go back to the plant because they have hired me to watch out there on account of the automatic sprinkler being out."

Mrs. Noack would have testified, as follows:

'Q. The question I asked you was: Did you hear them have a conversation out there? A. Yes, sir.

'Q. Can you give us any idea as to how long they were outside the door after you laid down? A. About three or four minutes at the most.

'Q. Three or four minutes? A. I guess they said good night and talked a few minutes and then he left.

* * *

* * *

'Q. What was the conversation you heard between Mr. and Mrs. Elledge? A. She was trying to get him in to spend the night and he said he couldn't, and she said: 'Let's go over to Roy Circle and spend the night.' And he said he couldn't stay any place because the water tower was broken at the place and he had to stay up there.'

In our opinion the excluded statements were admissible as res gestae for the purpose of showing where the deceased was going after leaving his wife and the purpose of the trip.

In Texas Employers' Insurance Ass'n v. Brumbaugh, Tex.Civ.App., 224 S.W.2d 761, 763, ref., n. r. e., numerous witnesses were permitted to testify as to statements made by the deceased as to the purpose of his trip and to show that his employer had sent him on a special mission to obtain employees. One of the witnesses was the widow of the deceased, who testified that two days prior to the fatal accident her husband called her by telephone from San Angelo and told her that his employer was sending him to Baird to get some men. The court said:

'The testimony was admissible as res gestae. Since the declarations were made by the deceased before the accident and resutling injuries, it is difficult to see how they could be considered as self-serving. No issue existed at that time between W. C. Brumbaugh and his employer or any one else as to whether or not he was acting in the course of his employment. The declarations of the deceased were contemporaneous with his trip to Baird and his action of seeking employees for Coffee. They were explanatory of such trip and actions. He was acting and talking as one with authority to solicit employees for his employer. The fact of his doing so in the absence of any apparent deliberate sign on his part is admissible as res gestae. Liberty Mut. Ins. Co. v. Nelson, 142 Tex. 370, 178 S.W.2d 514; Hartford Accident & Indemnity Co. v Bond, Tex.Civ.App., 199 S.W.2d 293, 296; * * * Maryland Cas. Co. v. Kent, Tex.Civ.App., 271 S.W. 929, 934; Royal Ind. Co. v. Hogan, Tex.Civ.App., 4 S.W.2d 93; Texas Employers Ins. Ass'n v. Shifflette, Tex.Civ.App., 91 S.W.2d 787, 790-91; Texas Employers Ins. Ass'n v. White, Tex.Civ.App., 68 S.W.2d 511, 513-514; Heaton v. Globe Ind. Co., Tex.Civ.App., 71 S.W.2d 328; Lehers v. Federal Underwriters Exchange, Tex.Civ.App., 79 S.W.2d 925, 926; Texas Employers Ins. Ass'n v. Bauer, Tex.Civ.App., 128 S.W.2d 840.'

In Prater v. Traders & General Ins. Co., Tex.Civ.App., 83 S.W.2d 1038, 1039, no writ history, the trial court refused to permit the driver of the automobile to testify that deceased, about 8 o'clock at night, came to the lease where he was working and told him that his pump had broken down and he had to go and get some parts for it, and asked the witness if he would carry him to Arp in his automobile. The witness met the deceased about 11:30 p. m., at which time they ate something at the home of the deceased and the deceased then told his wife that they were going to Arp to get some parts for the pump. The accident occurred enroute. The court said:

'It has long been a rule of evidence that the declarations made by a party at or about the time of his departure on a journey are admissible to establish the destination or purpose of the journey. 22 C.J. p. 286, par. 307; Jones Commentaries on Evidence (2d Ed.) vol. 3, p. 2243, Sec. 1220; Wigmore on Evidence (2d Ed.) Vol. 3, p. 696, par. 1725.

'Some of the authorities hold that such evidence is admissible under the res gestae rule. Texas Employers' Ins. Ass'n v. White (Tex.Civ.App.) 68 S.W.2d 511, par. 7; Wallace v. Byers, 14 Tex.Civ.App. 574, 38 S.W. 228; Jim West v. State, 2 Tex. 460; Koonse v. Missouri Pacific R. Co., 322 Mo. 813, 18 S.W.2d 467, par. 14; Central of Georgia Ry. Co. v. Bell, 187 Ala. 541, 65 So. 835, par. 7; Chicago, M. & St. P. Ry. Co. v. Chamberlain, Tex.Civ.App., 253 F. 429; Tilley v. Commonwealth, 89 Va. 136, 15 S.E. 526; State v. Garrington, 11 S.D. 178, 76 N.W. 326, par. 3; Harris v. State, 96 Ala. 24, 11 So. 255; State v. Cross, 68 Iowa, 180, 26 N.W. 62; Territory v. Couk, 2 Dak. 188, 47 N.W. 395.

'We believe, however, that the evidence is admissible independently of the res gestae rule, for the simple and sufficient reason that it is the best evidence available to prove the fact at issue. In such cases the fact at issue is the purpose of the journey. The purpose of the journey is wholly dependent on the...