Erickson v. Edward Rutledge Timber Co.

• Decision Date: 30 June 1920
• Parties: HATTIE ERICKSON and GUNHILD KNUTESON, Appellants, v. EDWARD RUTLEDGE TIMBER COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

191 P. 212

33 Idaho 179

HATTIE ERICKSON and GUNHILD KNUTESON, Appellants, v. EDWARD RUTLEDGE TIMBER COMPANY, a Corporation, Respondent

Supreme Court of Idaho

June 30, 1920

PERSONAL INJURY-EVIDENCE-RES GESTAE-DECLARATIONS OF DECEDENT-ADMISSIBILITY.

1. In an action to recover damages for the death of one employed in a lumber-mill, statements made by the deceased to his daughter at the hospital, some two hours after the accident occurred, and in response to a question as to the cause of the accident, under circumstances which show that his statement was not so spontaneous as to be elicited by the occasion of the accident, are not properly part of the res gestae.

2. The controlling test is not whether the statement made is probably true, but whether it was made at a time when the declarant was in such a calm, reflective and deliberate state of mind as to enable him to fabricate a statement if he chose, thereby constituting the statement a narrative of a past transaction. Where the circumstances, as in this case show that the statement was made while the declarant was in such a state of mind, it is immaterial whether what he said is true or false. In either event it is hearsay and is not admissible as a part of the res gestae, and the error in admitting it is regarded as prejudicial.

3. Held, that the lower court committed no error in granting a motion for a new trial upon the ground that certain evidence which had been admitted as part of the res gestae was not properly so admitted, but was hearsay.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action for damages for death caused by negligence. Judgment for plaintiff. Order granting new trial. Affirmed.

Order affirmed. Costs awarded to respondent.

Lynn W Culp, for Appellants.

"In the United States the tendency is to extend, rather than narrow, the scope of the doctrine of res gestae. Although generally, the declarations must be contemporaneous with the event sought to be proved, yet, where there are connecting circumstances, they may, even when made some time afterward form a part of the res gestae." (Bouvier's Law Dict.; 1 Taylor on Evidence, sec. 525; Board of Education v. Keenan, 55 Cal. 642; People v. Vernon, 35 Cal. 49, 95 Am. Dec. 49; Travelers' Ins. Co. v. Moseley, 8 Wall. (U.S). 397, 19 L.Ed. 437, see, also, Rose's U. S. Notes; Rex v. Foster, Car. & P. 325; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Hyvonen v. Hector Iron Co., 103 Minn. 331, 123 Am. St. 332, 115 N.W. 167; O'Connor v. Chicago, M. & St. P. Ry. Co., 27 Minn. 166, 38 Am. Rep. 288, 6 N.W. 481; Commonwealth v. McPike, 3 Cush. (Mass.) 181, 50 Am. Dec. 727; New York etc. Mining Syndicate etc. Co. v. Rogers, 11 Colo. 6, 7 Am. St. 198, 16 P. 719; Roberts v. Port Blakely Mill Co., 30 Wash. 25, 70 P. 111; Johnson v. State, 8 Wyo. 494, 58 P. 761; State v. Martin, 124 Mo. 514, 529, 28 S.W. 12; Lewis v. State, 29 Tex. App. 201, 25 Am. St. 720, 15 S.W. 642; Fulcher v. State, 28 Tex. App. 465, 471, 13 S.W. 750; Commonwealth v. Werntz, 161 Pa. 591, 29 A. 272.)

Ralph S. Nelson, for Respondent.

The statement of deceased, if made at all, was not the immediate outcome of the facts, nor was it contemporaneous with nor did it succeed the facts under circumstances rendering the words uttered part of the transaction. To use the words sometimes used when defining res gestae, the statement was a narrative. (Greener v. General Electric Co., 209 N.Y. 135, 102 N.E. 527, 46 L. R. A., N. S., 975; Atchison, T. & S. F. Ry. Co. v. Logan, 65 Kan. 748, 70 P. 878; Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18; White v. City of Marquette, 140 Mich. 310, 103 N.W. 698; State v. McDaniel, 68 S.C. 304, 102 Am. St. 661, 47 S.E. 384; Bernard v. Grand Rapids Paper Box Co., 170 Mich. 238, 136 N.W. 374, 42 L. R. A., N. S., 930; Waldele v. New York Central & H. R. R. Co., 95 N.Y. 274, 47 Am. Rep. 41; Vicksburg & M. R. R. Co. v. O'Brien, 119 U.S. 99, 7 S.Ct. 118, 30 L.Ed. 299, see, also, Rose's U. S. Notes; National Masonic Acc. Assn. v. Shryock, 73 F. 774, 20 C. C. A. 3.)

The res gestae of a transaction is what is done during the presence of it, or so near upon the actual occurrence as fairly to be treated as contemporaneous with it. (Ohio & M. Ry. Co. v. Stein, 133 Ind. 243, 31 N.E. 180, 32 N.E. 831, 19 L. R. A. 733; Savannah etc. Ry. Co. v. Holland, 82 Ga. 257, 14 Am. St. 158, 10 S.E. 200; Sorenson v. Dundas, 42 Wis. 642; Sullivan v. Oregon R. & N. Co., 12 Ore. 392, 53 Am. Rep. 364, 7 P. 508; Gordon v. Grand Rapids & I. Ry. Co., 103 Mich. 379, 61 N.W. 549; Boone v. Oakland Transit Co., 139 Cal. 490, 73 P. 243; Lissak v. Crocker Estate Co., 119 Cal. 442, 51 P. 688; Beasley v. San Jose Fruit Packing Co., 92 Cal. 388, 28 P. 485; Tennis v. Rapid-Transit Ry. Co., 45 Kan. 503, 25 P. 876; Durkee v. Central P. R. Co., 69 Cal. 533, 58 Am. Rep. 562, 11 P. 130.)

BUDGE, J. Rice, J., MORGAN, C. J., Concurring.

OPINION

BUDGE, J.

This is an appeal from an order granting a motion for a new trial. The motion was granted upon the theory that certain evidence which had been admitted as a part of the res gestae was not properly so admitted and was not a part of the res gestae, but was hearsay.

Under the view we have taken the correctness of this ruling is the only question we need to determine. The action is to recover damages for the death of the father of appellant Hattie Erickson and husband of appellant Gunhild Knuteson, alleged to have been caused by the negligence of respondent. The injury to deceased occurred between 7 and 8 o'clock on the morning of the 29th of August, 1916, in the mill-yards of respondent while on a conveyor carrying cars of lumber from the mill to certain stations in the yard. The statements of deceased in question were made to the daughter at the hospital during a conversation between her and deceased some time between 9:30 and 11 o'clock the same morning.

The testimony upon which the trial court's ruling is based is as follows:

"Q. Now, when you first got to your father's side and he was on the operating-table you are speaking of, was he conscious?

"A. Yes.

"Q. Did he say anything to you?

"Mr. Nelson.--We object to this as incompetent, irrelevant and immaterial, not within the issues and pleadings in this case.

"The Court.--I will overrule the objection.

"A. Yes, he said quite a few things to me.

"Mr. Culp.--Q. What was the first thing he said to you? Don't give any long detailed description of what he said, but any remarks about what caused the accident or as to his condition.

"Mr. Nelson.--Now, if your Honor please, we object to that as incompetent, irrelevant and immaterial, not within the issues in this case, not binding upon this defendant, hearsay.

"The Court.--I will overrule the objection.

"A. Well, the first thing he said when I came in--I put my arms around him, and he says, "It's going to kill me, Girlie, but take it easy."

"The Court.--That is not material.

"Mr. Culp.--No, that is not material; that part of it is not material.

"Q. Go on, state what he said about the injury, if you can, please.

"Mr. Nelson.--I object to it as incompetent, irrelevant and immaterial, hearsay, not binding upon this defendant, not within the issues.

"Mr. Culp.--Q. Did he make any statement to you about how the injury happened?

"The Court.--I will overrule the objection.

"A. I lifted up the sheet and looked at his leg to see what condition it was in, and I went back to him and I asked him how it happened, but I will have to say in Norwegian, if you want me to say exactly the words.

"Mr. Culp.--Q. State what he said--state it in English, the same words, that is the same things that he said in Norwegian, state in English, if you can.

"A. Yes, but I was speaking in Norwegian to him.

"Q. That don't matter; just state what it was in English.

"Mr. Nelson.--We make the same objection.

"The Court.--Same ruling.

"A. I asked him how in the world it happened and he said he was fixing the block underneath the wheel of the car and lost his balance and his foot slipped in by the wheel of the trailer.

"Mr. Culp.--Q. By the wheel of the trailer?

"A. Yes.

"Mr. Nelson.--We move to strike out the answer as hearsay, not within the issues of this case, not binding on the defendant, incompetent, irrelevant and immaterial.

"The Court.--I will deny the motion."

There is probably no principle in law which has occasioned more judicial perplexity than the rule which admits in evidence as an exception to the hearsay rule, statements, declarations or exclamations on the theory that they constitute a part of the res gestae. (See generally, Walters v. Spokane International Ry. Co., 58 Wash. 293, 108 P. 593, 42 L. R. A., N. S., 917; Bernard v. Grand Rapids Paper Box Co., 170 Mich. 238, 136 N.W. 374, 42 L. R. A., N. S., 930, and exhaustive note to the two cases.) The underlying principles are well understood and as to them the authorities are generally harmonious. But the application of these underlying principles to the given facts of a particular case has occasioned great difficulty and is left pretty largely to the sound discretion of the trial court. (Coffin v. Bradbury, 3 Idaho 770, 95 Am. St. 37, 35 P. 715; 3 Wigmore on Evidence, sec. 1750, p. 2257; State v. McDaniel, 68 S.C. 304, 102 Am. St. 661, 47 S.E. 384; Bernard v. Grand Rapids Paper Box Co., supra.) This does not imply that the view of the trial court is necessarily final, but merely that in reviewing a ruling of the trial court as to whether or not certain evidence is part of the res gestae the appellate court will examine the facts and circumstances in the light of the underlying principles, and will hesitate to reverse the ruling of the...