Hamilton v. Missouri Petroleum Products Co., 53607

• Decision Date: 10 March 1969
• Docket Number: No. 2,No. 53607,53607,2
• Citation: 438 S.W.2d 197
• Parties: Doyle A. HAMILTON, Appellant, v. MISSOURI PETROLEUM PRODUCTS CO. and William P. Stecker, Respondents
• Court: Missouri Supreme Court

Page 197

438 S.W.2d 197

Doyle A. HAMILTON, Appellant, v. MISSOURI PETROLEUM PRODUCTS CO. and William P. Stecker, Respondents.

No. 53607.

Supreme Court of Missouri, Division No. 2.

March 10, 1969.

Arthur B. Cohn, Waynesville, for plaintiff-appellant.

James A. Cole, Jenny, Cole & Davis, Union, for respondents.

STOCKARD, Commissioner.

In plaintiff's action for personal injuries in which he sought damages in the amount of $65,000, the corporate and individual defendants filed separate counterclaims. The verdict of the jury was for defendants on plaintiff's petition and for plaintiff on the two counterclaims. Judgment was entered accordingly and plaintiff has appealed.

The only contention on this appeal is that the trial court erred in admitting into evidence, over plaintiff's objection, the testimony of Highway Patrolman Jim Gilmore in which he related the contents of statement made to him by defendant William P. Stecker.

On the morning of August 27, 1965, plaintiff was operating his 1959 Ford automobile southward and defendant Stecker was operating the transport tandem tractor-trailer of Missouri Petroleum Products Co. northerly on Highway 28. Both vehicles were traveling between 30 and 40 miles an hour. Highway 28 has an asphalt surface, it is 20 to 24 feet in width, and has a white divisional line down the center. At the place the two vehicles approached each other there is what was termed a 'horseshoe' curve. At the time it was raining lightly or misting and the pavement was wet. The two vehicles collided on this curve, the left front of plaintiff's automobile striking the left side of the tractor-trailer at the drive wheels or tandem axles of the tractor. Each operator contended that the other was on the wrong side of the road.

Plaintiff testified that when he first saw the tractor-trailer it was 'clear over on my lane of traffic,' that he then 'pulled over even farther to (his) side and (began) to slow down,' and after he got onto the shoulder of the highway the collision occurred. After presenting his medical testimony, plaintiff called as a witness Patrolman Gilmore who had investigated the collision. On direct examination he testified as to the location of the vehicles when he arrived at the scene and the condition of the highway. On cross-examination he related that he had made a report of his investigation, that he had talked to defendant Stecker at the scene and asked him what happened, and that what Mr. Stecker told him was in his report. He was then asked to 'read that statement,' and counsel for plaintiff objected because 'That's self-serving, not relevant, immaterial. It's self-serving and hearsay.' The objection was overruled, and the patrolman then read from his report the statement of Mr. Stecker as follows: 'He (plaintiff) was coming down the inside of the curve. I locked the trailer brakes and cut to the right. He came by and hit the tandems. I thought at first he was going to turn in front of me.'

We agree with plaintiff that the above testimony of Patrolman Gilmore in reading from his report what was told to him by Mr. Stecker was both hearsay in nature and self-serving, the two precise objections made by plaintiff. If the statement was admissible in evidence, it had to be because of some exception to these general exclusionary rules.

Respondents contend that the statement was admissible in evidence as a part of the res gestae. Whether a statement is admissible for this reason depends upon the particular circumstances, and whether the statement is admissible under those circumstances is a matter generally within the trial court's discretion which will not be disturbed on appeal unless that discretion is abused. Cummings v. Illinois Central Railroad Co., 364 Mo. 868, 269 S.W.2d 111, 47 A.L.R.2d 513.

As a result of the collision plaintiff was severely injured and could not get out of his automobile. Mr. Stecker sustained an injury to his back, but 'didn't feel it right away.' An 'hour or so' later he felt his back 'stiffening up like a knot.' The tractor was torn loose from the trailer and it came to rest partly on the shoulder and partly in the ditch. The trailer turned over on the highway and spilled hot asphalt on the pavement. Mr. Stecker got out of the trailer, set flares on the highway, and then went to plaintiff's automobile and remained at the scene until Patrolman Gilmore arrived approximately twenty-five minutes after the accident, and it was thereafter while obtaining information to make his report that the patrolman wrote down the statement made by Mr. Stecker.

There are at least two different kinds of hearsay statements which are received in evidence under the designation of res gestae. One is classified as a verbal act, which is actually a part of the transaction under consideration. Vol. VI, Wigmore, Evidence, 3d ed., §§ 1766--1786. Such statement must be contemporaneous with the transaction. The statement is admissible in evidence because it is a part of some otherwise relevant act. Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 781. The testimony of Patrolman Gilmore as to the statement made to him by Mr. Stecker does not come within the above classification. Therefore, if the testimony was properly admitted it must come under that exception to the hearsay rule known as res gestae, which under certain circumstances, permits testimony as to hearsay statements made by a person involved in or present at an accident, declaring the circumstances of that accident at or after its occurrence. Vol. VI, Wigmore, Evidence 3d ed., §§ 1745--1757. Annotation, 163 A.L.R. 15. 'The essential test of this class of statements is spontaneity,' and in determining whether the statement is admissible under this rule 'the true test is neither the time nor the place of a statement but whether (under the circumstances) it is a spontaneous statement produced by the event itself.' Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 781; Vol. VI, Wigmore, Evidence, 3d ed., § 1750. The burden of making a sufficient showing of spontaneity to make the statement admissible is on the person offering it. Woods v. Southern Ry. Co., Mo., 73 S.W.2d 374; Gough v. General Box Co., Mo., 302 S.W.2d 884, 887. The basis of the admission in evidence of a hearsay statement by reason of the res gestae is that under circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. When such an utterance is made under the immediate and uncontrolled dominion of the senses and not during the time when consideration of self-interest could have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy, or at least lacking the usual grounds of untrustworthiness. The utterance need not be strictly contemporaneous with the exciting cause, but it must be made at a time so near it as to preclude the idea of deliberate design. Pryor v. Payne, 304...