Marks v. I. M. Pearlstine & Sons

• Decision Date: 10 August 1943
• Docket Number: 15571.
• Citation: 26 S.E.2d 835,203 S.C. 318
• Parties: MARKS v. I. M. PEARLSTINE & SONS.
• Court: South Carolina Supreme Court

26 S.E.2d 835

203 S.C. 318

MARKS v. I. M. PEARLSTINE & SONS.

No. 15571.

Supreme Court of South Carolina

August 10, 1943

Robert McC. Figg, Jr., of Charleston, for appellant.

J C. Long and Brantly Seymour, both of Charleston, and J. E Leppard, of Chesterfield, for respondent.

T. S SEASE, Acting Associate Justice.

This action was brought by the plaintiff under the provisions of Lord Campbell's Act for the recovery of damages for the wrongful death of her intestate for the benefit of herself and the other surviving children of said decedent. The issues were tried to a jury at the March, 1942, term of Court of Common Pleas of Charleston County and resulted in a verdict for the plaintiff in the sum of $15,000.

The complaint alleges, among other things, that in the early morning of October 11, 1939, plaintiff's intestate, a woman about sixty-nine years of age, started to cross from the west to the east side of Rutledge Street in the City of Charleston, which said street was 36 feet wide, when she was struck and killed by a truck of defendant; that at the time the deceased was struck by said truck of defendant the driver thereof was racing with another truck of the defendant; that at the time of the accident the truck was being operated at an excessive rate of speed in violation of a city ordinance restricting the speed of motor vehicles to 25 miles an hour; that the truck was equipped with a defective horn and the driver thereof did not keep a proper or any lookout, did not give the deceased any notice or warning of the approach of the truck, and did not see her until just as she was struck; that the driver did not slacken the speed of said truck although he saw, or by the exercise of ordinary care, could have seen, the deceased when he was several blocks north of the scene of the accident; that the deceased had reached the west rail of the east side car tracks 20.8 feet from the west curb of Rutledge Street when she was run down and struck on the driver's left or wrong side of the street; and that the death of the deceased resulted directly and proximately from such willfullness, wantonness and negligence of the defendant, its agents, servants and employees.

The answer of the defendant denied plaintiff's specifications of its negligence as alleged in the complaint and pleaded contributory negligence, carelessness, recklessness and willfullness on the part of the deceased in bar of plaintiff's cause of action.

In the course of the trial the presiding Judge denied timely motions of the defendant for a nonsuit, directed verdict and new trial.

The appellant reserved and appealed to this court upon six exceptions which were grouped in its brief and stated as presenting three questions.

Question I of appellant (exceptions 4 and 6) complains of error on the part of the trial Judge in the admission of a part of the testimony of one Taylor, a witness of the respondent, as to an exclamation of one Duc, also a witness for the respondent.

On the morning of the accident Taylor and Duc, employees of the Roper Hospital in Charleston, were walking south along Rutledge Street on the way to their work and when they reached the intersection of Rutledge and Radcliffe Streets they were attracted by the roar of motors behind them and as they turned they saw two trucks of the defendant which were being operated by its negro drivers. Duc testified that he saw the two trucks of the defendant, that the one behind looked like he was trying to pass the other; that they were zig-zagging and flagging like they were empty, running light; that they were exceeding the speed limit and the rear end was zig-zagging like he had no control, running light. Taylor testified that when he was around about Radcliffe Street in Rutledge he saw them and they were coming at such a high rate of speed they attracted his attention; that he saw two trucks of the defendant; that one was in the front of the other and it looked like one was trying to get ahead of the other; that he estimated the speed at about 45 miles an hour; that one of the trucks caught the other and passed it at Calhoun Street.

As these two trucks of the defendant, one of which killed plaintiff's intestate less than a minute thereafter, passed Taylor and Duc at the intersection of Rutledge and Radcliffe Streets, Duc exclaimed in the presence of Taylor, "Golly, look there; those trucks are going to kill somebody yet!"

On the trial, the presiding Judge, over the objection of the defendant that the exclamation of Duc had nothing to do with the accident, that it was too far away from the point of the accident, that it could not be a part of the res gestae because it was too far removed from the point of the accident, ruled that the declaration was a part of the res gestae and admitted it in evidence. The reception in evidence of the exclamation of Duc as a part of the res gestae is the error complained of in the first question of appellant. There is no hard and fast rule as to time or distance nor can any hard and fast rule be laid down as to the admissibility of evidence as a part of the res gestae. Each case must be decided upon its own facts and the admissibility of evidence as a part of the res gestae is largely left to the sound judicial discretion of the trial Judge.

"No hard and fast rule can be laid down as to the admissibility of evidence as a part of the res gestae. The facts and circumstances presented in different cases vary so widely that the courts have come to the point of adjudging this question as it is presented by the particular case under consideration; and the admissibility vel non of evidence as part of the res gestae is a matter resting very largely in the discretion of the trial court." 22 C.J. 448, 32 C.J.S., Evidence, § 403; Cf. State v. McDaniel, 68 S.C. 304, 47 S.E. 384, 102 Am.St.Rep. 661.

"*** In passing upon questions regarding the introduction of testimony of the nature involved herein [res gestae] the same must largely be left to the wise discretion of the trial judge, for he has an opportunity to hear the witnesses testify and is well able to judge the force and effect of such testimony and understand the connection and circumstances involved at such time." Cobb v. Southern Public Utilities Co., 181 S.C. 310, 187 S.E. 363, 367; Cf. Lazar v. Great A. & P. Tea Co., 197 S.C. 74, 14 S.E.2d 560.

"Questions of this kind [res gestae] must be very largely left to the sound judicial discretion of the trial judge, who is compelled to view all the circumstances in reaching his conclusion, and this court will not reverse his ruling unless it clearly appears from undisputed circumstances in evidence that the testimony ought to have been admitted or rejected, as the case may be ***." State v. McDaniel, 68 S.C. 304, 47 S.E. 384, 386, 102 Am.St.Rep. 661.

"The admission of statements on the ground of being part of the res gestae is a matter that must be left largely to the discretion of the trial judge, for the reason that he is in a position to see and hear the witnesses testify and be able to get a clear understanding of the transaction as it occurred, and unless convinced that the trial judge abused his discretion or was clearly in error this court will not interfere ***." Neal v. Southern R. Co., 162 S.C. 228, 160 S.E. 837, 842.

The general requirements to make evidence a part of the res gestae are stated in 22 C.J., at page 443 as follows: "In any particular case submitted to judicial investigation, the nature of the right or liability asserted involves consideration by the tribunal of a certain number of principal facts, the happening of which extends over a definite period of time and directly determines the existence of the right or liability. This collection of primary facts constituting the necessary and immediate field of a judicial inquiry has been designated as the res gestae, and within this field of immediate inquiry the Court will receive evidence of all the facts. The term 'res gestae' has, however, frequently been given a greatly extended application and has been defined as 'those circumstances which are the undesignated incidents of a particular litigated act, and which are admissible when illustrative of such act.' It has been made to embrace all facts which are relevant to the principal fact in any degree, as tending to establish the existence of the claim or liability in dispute between the parties, which directly arises, if at all, from the primary fact, although the facts covered by this extended definition of the phrase may be attendant or explanatory circumstances involving no idea of action, or may be prior or subsequent to the happening of the primary fact, even by a considerable length of time, and although the facts may have happened at a different place from that at which the primary occurrence took place, or the acts may have been done by others than the principal participants ***." See also 32 C.J.S., Evidence, § 403.

This Court in a number of cases has stated the principles governing the admission of evidence as a part of the res gestae.

"To make declarations a part of the res gestae, they must be contemporaneous with the main fact--not, however precisely concurrent in point of time. If they spring out of the transaction, elucidate it, and are made at a time so near to it as reasonably to preclude the idea of deliberate design, they are then regarded as contemporaneous." Lazar v. Great A. & P. Tea Co., 197 S.C. 74, 14 S.E.2d 560, 563. Cf. State v. Belcher, 13 S.C. 459, and State v. McDaniel, supra.

"Statements or circumstances which are explanatory of the main fact are admissible in evidence as a part of the res gestae. Benbow v. Harvin, 92 S.C. 180, 75 S.E. 414. Its explanatory nature is essential *** it must possess the very

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