Meyers v. Smith

Decision Date08 April 1957
Docket NumberNo. 45494,No. 2,45494,2
Citation300 S.W.2d 474
PartiesRalph MEYERS and Olive Meyers, Respondents, v. Daryl Dean SMITH, Appellant
CourtMissouri Supreme Court

Roberts & Roberts, J. Richard Roberts, Farmington, for appellant.

Dearing, Richeson & Weier, Will B. Dearing, Hillsboro, Melvin Englehart, Fredericktown, for respondents.

BARRETT, Commissioner.

Ruth Meyers, aged fourteen years and nine months, died as the result of injuries sustained when the speeding automobile in which she was riding left the highway on a curve and crashed into a tree. Her father and mother, Ralph and Olive Meyers, have recovered a judgment for $15,000 for her negligent, wrongful death. The suit was instituted against Mr. Ralph Smith, the owner of the automobile, and his son, Daryl Dean ('Diz') Smith, sixteen years old, but before trial the action was dismissed as to the father and the judgment is against the appellant son, Diz.

Upon the trial of the case negligence in the operation of the automobile was virtually conceded; the decisive, litigated fact issue was whether, as the plaintiffs claimed, Diz was driving, or whether, as the defendant claimed, Ruth was driving when the automobile left the highway and crashed into the tree. It was the plaintiffs' contention that there were two boys, Diz and Harold Owens, and one girl, Ruth, in the front seat and that Diz was driving. It was the defendant's contention that there were two couples in the back seat, Diz and his date, Jerry Head, Paul ('Shot') Head and his date, Margarita ('Rita') Barker, and one couple, Harold Owens and his date, Ruth, in the front seat and that Ruth was driving.

The background circumstances were that on May 17, 1955, these six high school youngsters attended the Fredericktown Junior-Senior Prom. For the occasion Diz 'borrowed' his father's 1953 four-door Ford automobile. He picked up his date, Jerry Head, and then picked up Rita and her date, Paul Head, and the four of them, Diz driving, attended the prom. There they met up with Ruth and her date, Harold Owens, and the six of them decided that they would leave the prom and 'ride around a little while.' Harold had his father's car but he and Ruth parked it on the outskirts of Fredericktown and got in the Smith automobile. They drove from Fredericktown to Farmington and, about eleven o'clock, were en route to Fredericktown again but by way of Ironton, on blacktop Highway W, when the automobile, traveling at a speed of sixty to sixtyfive miles an hour, left the highway on a rather sharp curve and crashed into a tree. Two of the youngsters, Ruth and Harold, were pinned in the wreckage in the front seat, on the right-hand side where the cowl and door struck the tree. The other two couples were thrown from the automobile.

The plaintiffs proved by Diz' own admissions that he was driving the automobile when it crashed. A young man returning from 'a date' stopped at the wreck and said that he asked Diz who was driving and Diz said, 'I was driving the car.' He inquired, 'What happened?' and Diz said, 'Coming around the curve and that was it.' A homeward bound fisherman stopped and Diz told him that he was driving; 'He said he was coming around the curve, that his girl friend bumped his elbow, he lost control of the car and went off the road.' While standing in a ditch alongside the highway he told one of the fisherman's companions that he was driving. A man who lived nearby said that he saw Diz in the hospital, in the hall crying, and 'I said, 'Who done the driving?' He said, 'I done the driving." A highway patrolman talked to Diz at the hospital in Bonne Terre and Diz told the patrolman that he was driving; 'He told me he was rounding the curve and in turning his elbow caught and he lost control of the car.' In addition, Diz signed a statement for the collision insurance carrier's adjuster in which he stated that he was driving the automobile.

Upon the trial of the case Diz acknowledged having made the admissions, but he denied that they represented the truth. He and the surviving boys and girls stoutly maintained that the fact was that he was in the back seat with his date and that Ruth was driving when the automobile left the curve and crashed. He and the surviving boys and girls testified that after Harold and Ruth got in the automobile, on the outskirts of Fredericktown, Jerry, Diz' date, drove to the highway intersection at Farmington. Because Jerry, then fourteen years old, did not have a driver's license Diz drove through the city of Farmington and at the city limits he and Jerry got in the back seat with 'Shot' Head and Rita and Harold and Ruth got in the front seat and, because he had formerly promised, Ruth, then almost fifteen years old, took over the driving and was driving when the automobile crashed into the tree. Immediately, before anyone came upon the scene, Diz said, 'I remember dad told me not to let anybody drive, so remember I was driving the car.' That was Harold's testimony; Diz testified, 'I told all of the kids in the car with me to say I was driving the car. * * * My father told me very clearly when I left the house not to let no one drive and I knew she (Ruth) was under age and had no driver's license. I figured it wouldn't be so much trouble if I told them I was driving because I had (a) driver's license.'

In addition to the admissions by Diz, the plaintiffs, in proof of their case in chief, called as witnesses the young man returning from his date, a neighbor lady who was visiting nearby, and the highway patrolman, and they all testified that the two surviving girls, Rita and Jerry, and possibly one of the boys, 'Shot,' all stated at one time or another that Diz was driving. Brooks, who had been to see his girl, came upon the wrecked automobile between, he said, 11:30 and 12:30; Mr. Crocker, the neighbor was there, and he may have been mistaken in that the fishermen may have driven up ahead of him. In any event Brooks took two girls, Rita and Jerry, and one boy, 'Shot,' in his pickup truck to the Neissen house nearby. On the way he asked the question, 'Who was driving the car?' and one of the girls said, 'The boy (meaning Diz) was driving the car. * * * Said the boy was driving the car.' And the witness 'believed' that she said there were three in the front seat and three in the back seat. Mrs. Crocker was visiting her brother, Mr. Neissen, when Mr. Brooks brought Rita and Jerry and 'Shot' to the house, and she testified that, upon inquiry, Rita told her 'there was three in the back seat and three in the front seat.' The highway patrolman took Rita, Jerry and 'Shot' to the hospital in Bonne Terre in his patrol car and, as he drove along, discussed the accident with them. The specific question by plaintiffs' counsel and the answer of the witness were: 'Q. What did those two girls and that boy tell you while you were in that car leaving the scene of that accident as to who was driving that vehicle? A. They stated that Smith was driving.'

When all of these questions were asked and the answers given on direct examination, defense counsel timely objected for the reasons that the questions called for hearsay testimony and the answers were hearsay evidence. The trial court was of the view, however, that the testimony was 'part of the res gestate' and, as indicated, admitted the testimony concerning the conversations in the course of the plaintiffs' case in chief. Thus, the essentially meritorious question upon this appeal is whether the trial court erroneously and prejudicially erred (V.A.M.S., Sec. 512.160, subd. 2) in admitting in evidence either or all of these conversations upon the assumption that they were a part of the res gestate. The respondent says, 'Such statements were admissible as a part of the res gestate exception to the hearsay rule of evidence.'

For more than seventy-five years the distinguished legal scholars have repeatedly pointed out, with complete unanimity, the fallacies and unsoundness of res gestae as a rule of evidence, or as an exception to the hearsay rule which excludes proof of 'extrajudicial utterances (only) when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.' 6 Wigmore, Evidence, Sec. 1766, p. 178; McCormick, Evidence, Sec. 225, p. 460. Chronologically, some of the texts and articles analyzing and demonstrating the basic unsoundness of the phrase 'res gestae' as a rule of evidence or as a figure of speech descriptive of an exception to the hearsay rule are: James B. Thayer, 'Bedingfield's Case,' 15 Am.L.R. 1 (1881); Edmund M. Morgan, 'A Suggested Classification Of Utterances Admissible As Res Gestae,' 31 Yale L.J. 229 (1922); Edward W. Hinton, 'States Of Mind And The Hearsay Rule,' 1 Univ.C.L.R. 394 (1934); 6 Wigmore, Evidence, Sec. 1767, p. 182 (1940); McCormick, Evidence, Sec. 274, pp. 585-587 (1954); Proposed 'Uniform Rules of Evidence' Rules 62, 63(4) (1953). Nevertheless, Missouri's bench and bar, with rare notable exceptions such as Lewis v. Lowe & Campbell Athletic Goods Co., Mo., 247 S.W.2d 800, instead of candidly recognizing certain contemporaneous or spontaneous exclamations and utterances as a legitimate and basically sound exception to the hearsay rule (McCormick, Evidence, Sec. 272, pp. 578-579; 6 Wigmore, Evidence, Sec. 1745, p. 131), have stubbornly clung to the shibboleth of the meaningless Latin phrase. The most authoritative analysis and defense of res gestae as a rule of evidence, or as an exception to the rule excluding hearsay evidence, is contained in the exhaustive annotation, 'Res Gestae Utterances In Actions Founded On Accidents,' 163 A.L.R. 15-235 (1946). See also: 32 C.J.S., Evidence, Secs. 403-421, pp. 19-54. But even the most convincing apologist for the doctrine is unable to reconcile even the leading Missouri cases, and vehemently objects to our attempts to combine Professor Wigmore's 'shock test' with res gestae, particularly in connection with...

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