Francis v. Sauve

• Decision Date: 07 November 1963
• Citation: 222 Cal.App.2d 102,34 Cal.Rptr. 754
• Court: California Court of Appeals Court of Appeals
• Parties: Dorothy Grigg FRANCIS et al., Plaintiffs and Respondents, v. Lawrence A. SAUVE, Defendant and Appellant. Civ. 20328.

Page 754

34 Cal.Rptr. 754

222 Cal.App.2d 102

Dorothy Grigg FRANCIS et al., Plaintiffs and Respondents, v. Lawrence A. SAUVE, Defendant and Appellant.

Civ. 20328.

District Court of Appeal, First District, Division 1, California.

Nov. 7, 1963.

As Corrected on Denial of Rehearing Dec. 3, 1963.

Hearing Denied Dec. 30, 1963.

Pelton, Gunther & Gudmundson, Charles E. Goff, San Francisco, for appellant.

Jack H. Werchick, San Francisco, for respondents.

SULLIVAN, Justice.

In this action for damages for wrongful death, the jury returned a verdict in favor of plaintiffs and against the defendant Lawrence A. Sauve in the sum of $46,000. Sauve appeals from the judgment entered on the verdict. The same jury returned a verdict in favor of the defendant Henry L. Ratliff and against the plaintiffs. Plaintiffs have not appealed from the adverse judgment entered on this verdict.

On November 14, 1957, at about 1:15 p. m. defendants Sauve and Ratliff and plaintiffs' decedent Robert J. Francis were driving their respective automobiles in an easterly direction on Market Street near Seventh Street in San Francisco. The three cars were proceeding in the following order: First, a Ford driven by Ratliff; next, a Plymouth driven by Francis; and last, a Studebaker driven by Sauve. Ratliff stopped his car for a red light at the intersection of Market and Seventh Streets. Francis stopped behind Ratliff. However, Sauve failed to stop and drove his vehicle into the rear of the Francis car which in turn was caused to collide with the Ratliff car ahead of it.

Prior to this accident plaintiffs' decedent had suffered from high blood pressure for several years. In October 1956 he consulted with Dr. David L. Rodgers who diagnosed his then condition as one of severe hypertention. In April 1957 he suffered a stroke which required that he be hospitalized. After his discharge from the hospital and a four months' period of recuperation, Francis carried on a normal active life. He returned to work and continued working until the day before he died.

On November 15, 1957, the day after the above accident, Francis consulted with Dr. Rodgers, complaining of pain in his neck. Dr. Rodgers diagnosed the injury as 'a whiplash type of injury or sprain to the neck' and prescribed physiotherapy.

On December 1, 1957, shortly after midnight, Francis was admitted to Stanford Hospital where he died a few hours later from a cerebral stroke.

Plaintiffs, the wife and three children of the decedent, commenced the instant action on February 4, 1958, alleging that as a result of the negligence of Sauve and Ratiff, Francis sustained serious personal injuries in the collision of November 14, 1957, as a result of which he died on December 1, 1957. Defendants denied all of the material allegations of the complaint and raised the defense of the decedent's contributory negligence.

Defendant Sauve, the sole appellant herein, now presents a number of contentions which, he asserts, compel our reversal of the judgment. We propose to consider them in the order presented. Unless otherwise indicated, our reference hereafter to the 'defendant' will mean the above-mentioned defendant-appellant.

1. Admissibility of decedent's statement to police officer.

Defendant contends that the court erred in receiving in evidence as part of the res gestae a statement made by the decedent at the scene of the accident to the police officer who investigated it.

San Francisco Police Officer Rudolf K. Haase, a member of the Accident Investigation Bureau, called as a witness for plaintiffs, testified that he investigated the accident here involved. He received the call at 1:23 p. m. and arrived at the scene at 1:35 p. m. There is however no precise evidence in the record as to how long after the occurrence of the accident the above call was made. Nor does the record disclose how long after his arrival at the scene, Officer Haase talked to the decedent and heard the statement here objected to. He testified that all three drivers were 'in the vicinity' when he arrived but he was unable to recall which driver was interviewed first. He appears to have followed his general practice of interviewing the drivers involved upon his arrival at the scene of the accident. We think that it is a fair statement of the record to say that Haase talked to the decedent at or within a short time after 1:35 p. m.

On direct examination Haase was asked what the decedent said to him at the scene of the accident. Defendant objected that such a statement would be self-serving. Plaintiffs' counsel indicated that the admission of the statement was sought as part of the res gestae. Defendant further objected that no foundation had been laid and that decedent's statement was not part of the res gestae. After inquiring of the witness as to how long after the impact he arrived ¹ the court expressed some doubt that the decedent's statement was part of the res gestae, in response to which plaintiffs' counsel contended that 'it could depend on what occurred and the circumstances.' The court then overruled defendant's objection and the following occurred: 'Q. Tell us what was said by Mr. Francis, the operator of number 2, please? THE WITNESS: A. He stated he had stopped for about one second when struck. MR. WERCHICK: Q. Say it out louder. A. He stated he had stopped for about one second when struck.' This is the statement of which defendant complains.

To render a declaration admissible as part of the res gestae or as a spontaneous declaration 'it is required that (1) there must be some occurrence starting enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. Wigmore on Ev., 2d Ed., sec. 1750.' (Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 468, 106 P.2d 895, at p. 900; Lane v. Pacific Greyhound Lines (1945) 26 Cal.2d 575, 581-582, 160 P.2d 21; People v. Costa (1953) 40 Cal.2d 160, 168, 252 P.2d 1.) In determining the admissibility of a declaration claimed to be part of the res gestae, there is necessarily some element of discretion in the trial court. (Showalter v. Western Pacific R. R. Co., supra; Wiley v. Easter (1962) 203 Cal.App.2d 845, 851, 21 Cal.Rptr. 905, at p. 912.) In this determination, the amount of time elapsing between the occurrence and utterance, while not a controlling factor is an element to be considered. (Wiley v. Easter, supra; People v. Bernalley (160) 185 Cal.App.2d 326, 330, 8 Cal.Rptr. 375; Dolberg v. Pacific Electric Ry. Co. (1954) 126 Cal.App.2d 487, 489, 272 P.2d 527.) Generally speaking it is the function of the trial judge to consider and decide whether all of the elements essential to the application of the res gestae rule are present. (Dolberg v. Pacific Electric Ry. Co., supra.) However, it is to be noted that burden of proving the admissibility of a declaration as part of the res gestae or as a spontaneous declaration rests upon the party who seeks to introduce it into evidence. (Wiley v. Easter, supra.)

In the case of Wiley v. Easter, supra, one of the two investigating officers, called by the defendant, testified that he talked to the defendant after the accident as to how it occurred. The officer made notes which were ultimately carried into a typed police report, a part of which was prepared by each of the officers and which was signed by the other officer. The witness did not have his notes at the trial and apparently had no independent recollection of his conversation with the defendant. Over plaintiff's objection, he was permitted to read from the police report his version of the statement made to him by the defendant. The court reversed the judgment for defendant, stating: '[D]efendant failed to show when or where her statements were made, whether the excitement of the accident had worn off, whether she was under the influence of sedatives at the time, what portions of her statement were volunteered and what were elicited by questions of the officer which were perhaps suggestive, or by questions which required deliberation in answering. Indeed, it does not affirmatively appear that the pertinent part of the report was made by Officer Welch, or that he knows it to have been correct at the time it was made; hence, under § 2047, Code of Civil Procedure, [footnote omitted] there was no foundation for reading from it. Neither the report nor its content was admissible in evidence because no competent foundation had been laid. It was error to receive it in evidence or, speaking more accurately, an abuse of discretion.' (203 Cal.App.2d at pp. 855-856, 21 Cal.Rptr. at p. 912.) ²

In the case before us, the first and third requirements of the rule announced in the Showalter case appear to have been satisfied. It is reasonable to conclude that the collision was startling enough to produce a stress of nervous excitement so as to render an utterance spontaneous and unreflecting. It is also clear that the utterance here involved relates to the occurrence preceding it. But was the decedent's statement made while nervous excitement still dominated and his reflective powers were still in abeyance? While defendant argues that there was no evidence of the time of the accident, the parties appear to agree and defendant states in his brief, that the accident happened at about 1:15 p. m. In the light of the police officer's testimony we think it is a reasonable conclusion that he talked to Francis about 20 minutes after the accident. However the record fails to disclose Francis' condition at this point of time which obviously cannot be considered as being concurrent with the collision or even as being immediately after it. It is an inescapable fact...