McKenzie Transport Leasing Co. v. St. Louis Public Service Co.

• Decision Date: 19 September 1961
• Docket Number: No. 30723,30723
• Citation: 349 S.W.2d 370
• Parties: McKENZIE TRANSPORT LEASING COMPANY, Inc., a Corporation, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 370

349 S.W.2d 370

McKENZIE TRANSPORT LEASING COMPANY, Inc., a Corporation, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.

No. 30723.

St. Louis Court of Appeals, Missouri.

Sept. 19, 1961.

Rehearing Denied Oct. 17, 1961.

Donald L. Schmidt, St. Louis, for defendant-appellant.

W. Munro Roberts, Jr., James J. Sauter and Heneghan, Roberts & Cole, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

Plaintiff sued for damages of $2,550 to its tractor, sustained in a collision with a tractor-trailer operated by Staley Cartage Company, which collision, it was claimed, was occasioned by the negligence of the operator of one of defendant's motorbuses. The jury returned a verdict in favor of plaintiff in the amount prayed for, and defendant appealed from the ensuing judgment.

The accident occurred shortly before noon on June 5, 1958, on the Kingshighway viaduct, in the City of St. Louis. Plaintiff's tractor and trailer, operated by plaintiff's driver, Louis A. Nuspl, was being used to transport gasoline for the J. D. Street Company, to which the equipment had been leased. Plaintiff's version of the occurrence was that as its tractor proceeded northwardly over the Kingshighway viaduct, in the center lane for northbound traffic, the bus owned by defendant suddenly swerved from the northbound curb lane, across the middle lane, and partially into the center lane, requiring Nuspl to swerve the tractor across the center line of the street and into the pathway of the southbound tractor-trailer owned by Staley Cartage Company. Defendant's version was that the operator of its bus was forced to try to move it from the curb lane to its left to get around a vehicle which was parked in the curb lane; that the operator cut the wheels sharply and drove it at an angle until the left front corner of the bus was one foot into the middle lane, where he brought it to a stop; that as an auto passed the bus its speed was slowed; and that plaintiff's driver, closely following the auto, cut the tractor sharply to the left to avoid striking the auto, and thereby ran into the southbound tractor-trailer.

Among other points relied on by defendant on this appeal is that the trial court committed reversible error in permitting plaintiff's driver, Nuspl, to relate what certain unidentified persons stated at the scene of the collision. The disputed testimony was admitted during Nuspl's direct examination by Mr. Roberts, counsel for plaintiff:

'Q. Now, after the impact occurred, what did you do? A. Well, I was laying--sitting in between the two seats--the International 1953 has two double seats and I ended up between them. I couldn't get out my side--it was too mangled. I got out the other and grabbed the extinguisher right away, and at that time I happened to notice the bus go ahead. At the same time the Staley driver was coming out or way feeling himself, which I was. As I remember there was a couple of witnesses at that time who said they see the whole thing and it was the bus's fault.

'Mr. Schmidt: I will object to anything that the witnesses said at the scene, it being hearsay, and ask that the jury be instructed that that part be stricken.

'The Court: This was immediately after the impact? A. Immediately after the impact.

'The Court: Overruled. It is part of the Res Gestae.

'Q. Part of the Res Gestae, your Honor. Now, Mr. Nuspl, did you observe the car traveling behind you just before the accident? A. No, I did not.

'Q. After the accident did anybody come up from behind you? A. Well, where they came from I don't know, but someone had come up to both of us drivers and said, 'We seen the whole thing.' Of course, we had to make our phone calls and when we got back they were gone.'

Defendant assigns the admission into evidence of the testimony as to what the unidentified persons said as error, on the ground that it was hearsay and prejucicial. Plaintiff contends the statement was admissible as a part of the res gestae but that if it was not, its admission was not prejudicial error.

The testimony volunteered by Nuspl concerning what the unidentified witnesses had stated was obviously hearsay, and defendant's motion to strike should have been sustained unless it can be said, as the trial court ruled, that their statements were a part of the res gestae. '* * * The principal reason for excluding testimony as to statements made by others out of court is that the test of cross examination, of the person making them at the time they are made, a unavailable as a safeguard against falsification or inaccuracy. This is the basis of the Hearsay Rule. * * *' Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 781. One of the recognized exceptions to the hearsay rule is that the utterance made out of court was a part of the res gestae; that is, acts or words so closely connected with the principal event as to constitute a part of the transaction. 20 Amer.Jur. Sec. 662. The reason that such statements are considered to have special trustworthiness is thus given by Wigmore:

'This general principle is based on the experience that, under certain external 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. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness) and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts.' VI Wigmore, Evidence, 3rd Ed., Sec. 1747.

In considering whether a particular statement is admissible as a part of the res gestae the utterance should be regarded as presumably inadmissible, because of the rule against hearsay. 163 A.L.R. 15, 92; Wren v. St. Louis Public Service Co., Mo., 333 S.W.2d 92; Kagan v. St. Louis Public Service Co., Mo.App., 334 S.W.2d 379. And the burden rests upon the party offering the statement to show facts which warrant its admission as a part of the resgestae. Woods v. Southern Ry. Co., Mo., 73 S.W.2d 374; Wren v. St. Louis Public Service Co., supra. In the instant case the only fact developed to justify the admission of the statements of the unidentified witnesses was that the utterances were made '* * * immediately after the impact' but what that indefinite term might mean, without further elucidation, would of necessity depend upon the interpretation of each individual. For a somewhat similar indefinite expression of elapsed time see Moore v. St. Louis Public Service Co., Mo., 251 S.W.2d 38. Counsel and the court apparently were of the opinion that the fact that the statements were made by the unidentified witnesses within a relatively short period of time following the collision was, in and of itself, sufficient to warrant their admission in evidence. As was stated of a similar situation in Wren v. St. Louis Public Service Co., supra, (333 S.W.2d loc. cit. 95):

'* * * That is clearly an erroneous view. The fact that an utterance is made a very short time after the event will, in and of itself, have little weight in producing and affirmative conclusion that it is admissible. 'The lapse ot time involved is material mainly as evidence of lack of spontaneity.' Monical v. Armour & Company, Mo., 307 S.W.2d 389, 392.'

As was first said in Sconce v. Jones, supra, and has since been repeatedly quoted with approval (121 S.W.2d loc. cit. at page 782):

'* * * Certainly the true test is neither the time nor the place of a statement but whether it is a spontaneous statement produced...