Holtz v. L.J. Beal & Son, Inc.

• Decision Date: 05 April 1954
• Docket Number: No. 14,14
• Parties: HOLTZ v. L. J. BEAL & SON, Inc.
• Court: Michigan Supreme Court

Page 627

63 N.W.2d 627

339 Mich. 235

HOLTZ v. L. J. BEAL & SON, Inc.

No. 14.

Supreme Court of Michigan.

April 5, 1954.

Theodore Van Dellen, Albion, Kelly & Kelly, Jackson, for appellant.

Rosenburg, Painter & Davidson, Jackson, for appellee.

Before the Entire Bench.

CARR, Justice.

Plaintiff brought this action to recover damages resulting from injuries suffered by her decedent in a traffic accident. Insofar as the facts are shown by the record they are not materially in dispute. On October 21, 1948, about six o'clock in the morning, decedent left his home on U. S. 12 to go to his work in Albion, riding a bicycle on or along the north side of the pavement in a westerly direction. It was dark at the time and the bicycle carried a head lamp in front and a reflector on the rear fender. A short time after decedent left his home, and when he had reached a point approximately 1,000 feet therefrom, he was found sitting on the north shoulder of the road. His bicycle, which was not damaged in any way, was lying beside him. At that time defendant's tractor and trailer were standing on the north half of the pavement, headed west.

A witness produced by plaintiff testified that as he approached from the west the driver of defendant's equipment signalled him to stop. The witness did so. Over objection by defendant's counsel he was permitted to testify that the driver stated that he had 'hit somebody or something', followed by a request that the witness direct the lights of his automobile along the north side of the road. Mr. Holtz was then discovered sitting on the ground beside his bicycle. His son, who lived in the neighborhood, was advised that his father had been injured and came immediately to the scene. After some conversation between father and son as to what had occurred, Mr. Holtz was placed in an automobile and taken to a hospital. It is in evidence that he rose to his feet with some assistance from his son, and that he walked to the car. Bronchial pneumonia resulting from physicial injuries caused his death two days later.

At the conclusion of plaintiff's proofs on the trial in circuit court defendant moved for judgment on the ground that negligence on the part of its driver, constituting the proximate cause of the injuries sustained by plaintiff's decedent, had not been shown, and that plaintiff had failed to establish freedom from contributory negligence on the part of Mr. Holtz. The motion was granted, the trial judge expressing the opinion that the proofs submitted did not justify recovery. Plaintiff has appealed, claiming that certain prejudicial errors occurred in the course of the proceeding and that a new trial should be granted.

Decedent's son, Robert Holtz, Jr., was called as a witness in plaintiff's behalf and was asked to detail the conversation that he had with his father with reference to the cause of the latter's injuries. It was plaintiff's claim that the statements made by the father were a part of the res gestae and that the proffered testimony was competent on that theory. The trial court sustained defendant's objection and excluded the conversation as hearsay, but permitted the witness to testify on a separate record. On behalf of plaintiff it is argued that such testimony should have been considered by the trial judge in the determination of the case.

The admissibility of testimony as to statements made, relating to a past transaction, by one presumably familiar with the facts, has been considered by this Court in a number of prior decisions. In Rogers v. Saginaw-Bay City Railway Co., 187 Mich. 490, 153 N.W. 784, 785, where the facts involved were analogous to those in the case at bar, it was said:

'That the statement of decedent to his son--the only evidence in the case--is hearsay evidence of the fact asserted, is, from its very nature, indisputable. The only question we must decide is whether the trial judge was right in saying that it did not come within any exception to the rule excluding hearsay evidence as incompetent. It is the contention of the plaintiff that it does come within that exception which permits unsworn statements that are spontaneous exclamations to be received. But what is the basis of that exception, and what the nature of those statements? The exception is based upon the fact that such exclamations, by virtue of their origin, have a peculiar trustworthiness. It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it. 3 Wigmore on Evidence, § 1750 et seq.'

Of like import are McAvon v. Brightmoor Transit Co., 245 Mich. 44, 222 N.W. 126, and Sexton v. Balinski, 280 Mich. 28, 273 N.W. 335. The general rule recognized in the Rogers case, supra, has been quoted with approval and repeatedly followed. The fact that the statement sought to be proved follows a question directed to the declarant does not of necessity indicate, under all circumstances, that such statement is not spontaneous. It is, however, a factor entitled to consideration, especially where it appears that the claimed exception to the hearsay rule was in fact a deliberate and considered answer to such question.

In the case at bar the exact length of time between the suffering of the injuries by Mr. Holtz and the conversation between him and his son is not shown. It is apparent from the record that Mr. Holtz was in possession of his mental faculties, that he understood the question directed to him, and that he undertook to reply to it. The separate record returned here discloses that he said in substance, after referring to the fact that his arm was numb and that his right side was hurting him, that he was riding on the pavement, that he saw the lights coming, that he got off the pavement to allow the car or truck to pass, that he saw that it was a truck, and that he was struck a blow from behind. His statements further indicate that he recognized where he was. Under the facts before us the conclusion follows that plaintiff failed to establish that the testimony in question was admissible as an exception to the hearsay rule. There was no error in the refusal of the trial court to consider it.

Appellant also claims that negligence on the part of the defendant is a matter of fair inference under the record. That negligence may be shown by circumstantial evidence is not open to question, if such evidence is sufficient to take a case out of the realm of speculation and conjecture into the field of legitimate inference from established facts. See C. O. Porter Machinery Company v. Coleman, 329 Mich. 8, 44 N.W.2d 845, and prior decisions there cited. Such a situation is not presented in the instant case. The manner in which Mr. Holtz received his injuries is not shown. The fact that the bicycle was not damaged is some indication that he was not struck by the front of the tractor. It is plaintiff's theory, as we understand it, that he might have been injured by coming in contact with a sack or sacks of cement with which the trailer was loaded. Testimony was offered on the trial to the effect that such sacks projected from four to six inches beyond the side of the trailer. There is no proof that defendant's equipment was at any time off the pavement, nor is it shown how far it was being driven from the edge. No testimony was offered as to the condition of the shoulder. If we assume that some part of defendant's equipment, or the load on the trailer, came in forcible contact with Mr. Holtz, the cause of such impact cannot be determined on...