Marshall v. Thomason

• Decision Date: 29 August 1962
• Docket Number: No. 17958,17958
• Citation: 241 S.C. 84,127 S.E.2d 177
• Court: South Carolina Supreme Court
• Parties: Walter F. MARSHALL, Jr., Respondent, v. James A. THOMASON, Appellant.

Page 177

127 S.E.2d 177

241 S.C. 84

Walter F. MARSHALL, Jr., Respondent, v. James A. THOMASON, Appellant.

No. 17958.

Supreme Court of South Carolina.

Aug. 29, 1962.

Love, Thornton & Arnold, Greenville, Mays, Mays & Doyle, Greenwood, for appellant.

Grier, McDonald, Todd, Burns & Bradford, Greenwood, for respondent.

BRAILSFORD, Justice.

This action for damages sustained by plaintiff in a highway collision resulted in a verdict against defendant for $1750.00 actual damages and $5000,00 punitive damages. The defendant's motion for the direction of a verdict, and his alternative motions for judgment n. o. v., for a new trial or for a reduction of the verdict by an order nisi were overruled by Hon. Steve C. Griffith, presiding judge, and the defendant has appealed.

The sole exception to the refusal of the court to direct a verdict, or grant judgment n. o. v., is upon the ground that plaintiff was guilty of contributory negligence and willfulness as a matter of law. Plaintiff was traveling in a westerly direction on S. C. Highway No. 72, from Clinton toward Greenwood. As he approached alternate U. S. Highway 221, which enters No. 72 from the northeast, on plaintiff's right, he saw the defendant's dump truck standing at a stop sign, apparently yielding the right of way. Plaintiff testified that he was driving about 55 miles an hour. As he drew near, he saw the truck start forward into his lane of traffic. In this emergency, he immediately applied his brakes and tried to turn behind the truck into Highway 221. His car went into a skid and struck the rear of the truck.

Skid marks made by plaintiff's car extended, downgrade, 126 feet to the point of collision. The force of the impact did extensive damage to plaintiff's 1958 Ford, which was afterward sold for $1500.00 or $1600.00 less than its estimated value before the accident. Portions of the highway on which plaintiff was traveling were being resurfaced and various signs were in place indicating this fact. However, the work in progess created no unusual hazard in the immediate vicinity of the accident. Defendant's truck was engaged in hauling materials from a nearby mixing plant for use in this construction.

Plaintiff's testimony as to the cause of the accident was corroborated, in part, by that of the investigating highway patrolman. It was contradicted by several witnesses for defendant, who testified that the truck did not move forward as plaintiff approached and did not have enter the intersection, either before or after the impact.

Submission of the issue of recklessness in the operation of defendant's truck has not been challenged on this appeal. Viewing the evidence in a light favorable to plaintiff, as is required, we have no error in the submission to the jury of the issues raised by the defense of contributory recklessness.

The investigating highway patrolman arrived at the scene some 30 minutes after the accident and after plaintiff had been taken to the hospital. The vehicles were in place and defendant's truck driver was present. Over the defendant's objection, the patrolman was allowed to testify that the truck driver made a statement to him as follows:

'Q. What conversation concerning this accident did you have with him at that time?

'A. He told me he had pulled up and stopped and looked up and down 72 and hand't seen anything coming when he first pulled up and stopped. Said then as he looked back before entering the road that this car came around the curve and that he started sliding; he thought he was going to hit him right in the side where he was sitting in the cab, and he let his clutch out and pulled forward to keep (the car?) from hitting him in the side.'

The admission of this testimony in evidence was one of the grounds of defendant's motion for a new trial. The trial judge ruled that the testimony was competent under the rule of res gestae and otherwise.

To qualify under the res gestae exception to the rule excluding hearsay testimony, a statement 'must be substantially contemporaneous with the litigated transaction, and be the instinctive, spontaneous utterances of the mind while under the active, immediate influences of the transaction; the circumstances precluding the idea that the utterances are the result of reflection or designed to make false or self-serving declarations.' State v. Long, 186 S.C. 439, 195 S.E. 624, 626.

The basic test is spontaneity, only spontaneous statements are admissible. Annotation: Motor Vehicle Accident--Res Gestae, 53 A.L.R.2d 1245, 1258. The proponent of the admission of a statement under this exception has the burden of establishing the required conditions. Ibid. 1260. The ruling of the trial judge will not be distrubed on appeal 'unless it clearly appears from undisputed circumstances in evidence that the testimony ought to have been admitted or rejected, as the case may be.' Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742, 751.

On its face, the statement in question was the mere narration of a past event, made after ample time for reflection, lacking spontaneity, and intended to exonerate the declarant. No circumstances were proved from which spontaneity could be inferred. We must conclude that the trial judge inadvertently failed to apply the proper test, in ruling that the testimony was admissible as res gestae, and that the exercise of his discretion was controlled by error of law.

Plaintiff next contends that the testimony as to the driver's statement was properly admitted in evidence as an admission by defendant's agent, quoting in the brief the general rule stated in 20 Am.Jur., Evidence, Sec. 596, as follows:

'There is a general rule that whatever is said by an agent, during the course of his duties and within the scope of his authority, relative to business contemplated by the agency in which he is then engaged is in legal intendment said by his principal and is admissible in evidence against such principal.'

Recognizing, as he must, that the principal is bound only by statement within the scope of the agent's authority, plaintiff contends that, when the statement was made, the driver 'was still about the master's business in protecting the truck after the accident and in explaining to the patrolman how the accident happened.' The record shows that the driver was employed to operate a dump truck on short hauls from the mixing plant to the work site. The claim that he was authorized to speak for his principal after the accident is based on inference, which finds scant support in the authorities.

The precise is covered under another title by the authority which plaintiff quotes.

'Statements Made by Party's Agent or Employee. As a general rule, statements by an agent or employee pertaining to an automobile accident in which he was a participant, and which were made after the occurrence, are not properly considered in determining the liability of the principal, or owner of the vehicle. To be admissible, the agent's declaration must be spontaneous and sufficiently contemporaneous with the time and place of accident to bring it within the res gestae doctrine. * * *' 5A. Am.Jur., Automobiles and Highway Traffic, sec. 979, page 859, citing, inter alia, Annotation, 75 A.L.R. 1534.

The text simply applies to post accident statements of employee drivers the long settled rule of the common law, which was succinctly stated for this court in Rookard v. Atlantic & C. Air Line Railway Co., 84 S.C. 190, 192, 65 S.E. 1047, 27 L.R.A.,N.S., 435 as follows:

'If an agent commits a tort, while acting within the scope of the agency, the principal is liable, but, if he makes declarations or admissions concerning it so long afterwards that they cannot be admitted as part of the res gestae, the principal is not bound by them.'

This excerpt from the Rookard case was quoted with approval in Sandel v. State, 126 S.C. 1, 119 S.E. 776, 781, and seven former decisions of this Court were cited as supporting it.

This rule has been subjected to criticism. American Law Institute, Model Code of Evidence, 1942, page 249, et sequa.; IV Wigmore on Evidence, (3d) Edition, Section 1078; McCormick on Evidence, Section 244. Some courts have failed to apply it to post accident driver statements. Whitaker v. Keogh, 144 Neb. 790, 14 N.W.2d 596; Thornton v. Budge, 74 Idaho 103, 257 P.2d 238; Grayson v. Williams (10th Cir.), 256 F.2d 61. However, it was adopted in Restatement of the Law, Agency, Second, Sec. 288(2) where it is illustrated by the post accident statement of a driver agent; and it is supported by the great weight of authority in this country. This Court, apparently, has never had occasion to apply the rule to such a statement. For illustrative cases from other jurisdictions see Portsmouth Transit Co. v. Brickhouse, 200 Va. 844, 108 S.E.2d 385, 78 A.L.R.2d 147; Williams v. Thomas, 219 N.C. 727, 14 S.E.2d 797; Roush v. Alkire Truck Lines, Mo., 299 S.W.2d 518; Beaule v. Weeks, 95 N.H. 453, 66 A.2d 148; Jones v. Gay's Express Co., 110 Vt. 531, 9 A.2d 121. The bedrock of these decisions is that, ordinarily, the making of post accident declarations or admissions is not within the scope of the agency of one employed to drive a motor vehicle. In the words of the Restatement, supra, 'Authority to do an act * * * does not of itself include authority to make statements concerning the act * * *.' See also 31 C.J.S. Evidence § 345, footnote 89, page 1120.

Counsel for plaintiff place some reliance on Sections 46-326, 46-327 and 46-329, Code of Laws, 1952, which require the driver and the investigating officer to submit accident reports and require the officer to interview the driver as to the cause of the accident. However, these statutory duties are imposed on...