Lucchesi v. Reynolds

• Decision Date: 22 June 1923
• Docket Number: 17893.
• Court: Washington Supreme Court
• Parties: LUCCHESI et ux. v. REYNOLDS et al.

216 P. 12

125 Wash. 352

LUCCHESI et ux. v. REYNOLDS et al.

No. 17893.

Supreme Court of Washington

June 22, 1923

Department 1.

Appeal from Superior Court, Pierce County; Wm. D. Askren, Judge.

Action by Narcisco Lucchesi and wife against E. W. Reynolds and another, doing business as Reynolds & Reynolds. Judgment for plaintiffs, and defendants appeal. Reversed, and new trial ordered.

J. H Gordon and A. O. Burmeister, both of Tacoma, for appellants.

S. A Gagliardi and Bates & Peterson, all of Tacoma, for respondents.

MACKINTOSH J.

Between 4 and 4:15 o'clock in the afternoon of December 23, 1921 a girl, 7 1/2 years of age, the child of the respondents, was killed by being struck by an automobile owned by the appellants, at that time being operated by one of their employees. The trial of the case before a jury resulted in a verdict in favor of the respondents, and from a judgment entered thereon this appeal is taken.

Two principal errors are argued in behalf of a reversal; the first, that a police officer of the city of Tacoma (where the accident occurred) was allowed to testify as to a conversation had with the appellants' employee, and it is claimed that this testimony should not have been admitted for the reason that it was not part of the res gestae. The facts in regard to this phase of the case are as follows Immediately upon striking the child, the employee jumped from his machine, picked up the body of the child, and took it to its parents' residence near by, and it appears from the testimony that at that time the child was probably already dead. Accompanied by the child's mother, the employee immediately took the body in the automobile of a passer-by to the Tacoma General Hospital, and from there he telephoned to the police department, reporting the accident, and was advised that an officer would come at once to the hospital. This officer was the witness whose testimony is objected to. He arrived at the hospital at about 4:30 or 4:45 o'clock, and testified that he there at once interviewed the employee, who, in response to his inquiries, stated that at the time of the accident he was operating the car at about 25 or 28 miles an hour, which was in excess of the lawful limit.

The objection to this testimony is that it was so lacking in the elements of spontaneity that it could not be brought within the rule of permissible evidence; that so much time had elapsed between the accident and the recitation of its occurrence and so many things had intervened during that time that what was said amounted only to the narration of a past event, and was not an instinctive utterance made as a result of the exciting influence of the main event. As further substantiation of the appellants' position in this regard, it is argued that the statements of the employee were not voluntarily made by him, but were answers to questions directed at him by the police officer. This court, with most other modern courts, has, as we have heretofore said, considerably relaxed the one-time rule that testimony to be admissible as part of the res gestae must be contemporaneous with the happening of the event, and has established the rule, as announced in Heg v. Mullen, 115 Wash. 252, 197 P. 51, and State v. Goodwin, 119 Wash. 135, 204 P. 769, that the utterances need not be contemporaneous with and accompany the event, but that they are admissible when they are made under such circumstances 'as will raise a reasonable presumption that they are the spontaneous utterances of thoughts created by, or springing out of, the transaction itself and so soon thereafter as to exclude the presumption that they are the result of premeditation or design.' It would seem that under this rule the testimony objected to was properly admitted. The time which had elapsed between the event and the conversation was not long; the conversation was held in a place where lay the dead body of the victim of the unfortunate event; the employee (a young man about 22 years of age) would still be laboring under the excitement occasioned by such an accident and could not have had, in the usual course of nature, what is known in another branch of the law as sufficient 'cooling time' to make those declarations concerning the accident the result of deliberation indulged in after the exciting influence had been dissipated and lost its sway. The picking up of the body, its carriage to the hospital, the call for the police, the arrival of the officer, the conversation in regard to the happening, are all so closely interwoven, both in incident and time, that the court cannot say that the event had terminated, but must hold that statements made under such circumstances were spontaneous and instinctive and logically related to the main event. The fact that the statements testified to by the officer had been elicited by his questions cannot militate against their reception. Of course, they were not involuntary exclamations, but they were none the less spontaneous and instinctive.

It would do little good to refer to cases which have held either one way or the other as to the...