Micheli v. Toye Bros. Yellow Cab Co.
| Decision Date | 05 April 1965 |
| Docket Number | No. 1787,1787 |
| Citation | 174 So.2d 168 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Paul J. MICHELI and Mrs. Marjorie Michell v. TOYE BROTHERS YELLOW CAB COMPANY and Allstate Insurance Company. |
Comiskey & Schaff, Val A. Schaff, III, New Orleans, for plaintiffs-appellees.
Deutsch, Kerrigan & Stiles, William W. Messersmith, III, New Orleans, for Toye Bros. Yellow Cab Co., defendant-appellant.
Sessions, Fishman, Rosenson & Snellings, Curtis R. Boisfontaine, New Orleans, for Allstate Ins. Co., defendant-appellant.
Before McBRIDE, CHASEZ an BARNETTE, JJ.
On the morning of June 4, 1961, a collision between two automobiles occurred in the intersection of Royal Street and the outbound roadway of Elysian Fields Avenue; the locus in quo is controlled by the conventional semaphore traffic light; there is nothing in the evidence which indicates that either vehicle was moving at an unlawful speed; the pivotal point is which of the two drivers was proceeding on a favorable green light signal.
One of the vehicles involved, a Pontiac, was being driven by Paul J. Micheli on Elysian Fields Avenue in the direction of the lake; Micheli had as guest passengers in his car his wife and eight-year-old son. The other vehicle was a taxi cab being operated by Rouil Theriot on Royal Street in the direction of Canal Street. The collision took place about mid-intersection, Micheli's Pontiac striking the left side of the cab.
Three suits for damages resulted which were consolidated for trial below and for argument before us. The suit we now deal with was instituted by Paul J. Micheli, for and on behalf of his minor son, Paul, Jr., to recover $25,000.00 for the child's injuries, and by Mrs. Micheli to recover $65,000.00 for her personal injuries. Impleaded as defendants in solido are the owner of the cab, Toye Brothers Yellow Cab Company, a co-partnership, and its component partners, and Allstate Insurance Company, which is the liability insurer of the Micheli vehicle.
The petition alleges the proximate cause of the accident to be the joint and concurrent negligence of both drivers. The cab company denied any negligence attributable to Theriot and avered the accident resulted from Micheli's negligence; alternatively, the cab company pleads that if Theriot was negligent, then Micheli was contributorily negligent and his negligence is imputable to Mrs. Micheli and the child, and therefore, their claims are barred. The cab company and the partners thereof made the Allstate Insurance Company their third-party defendant praying that in the event they are cast that Allstate Insurance Company, as Micheli's insurer, be held solidarily liable. Allstate Insurance Company, in answer to plaintiffs' claims and the third-party demand, denied negligence on the part of Micheli and averred that the accident was caused by Theriot's fault. No good purpose would be served by detailing the reciprocal charges of negligence leveled against the drivers.
After a trial below, Micheli, for the use and benefit of his minor son, recovered judgment for $750.00; Mrs. Micheli obtained judgment for $3,000.00; the third-party demand was dismissed. All defendants appealed.
The cab company contends the trial judge erred in excluding from the evidence, under the hearsay rule, a written and unsworn statement given by Theriot to an investigator of the cab company. Theriot died prior to the trial below from causes unrelated to the accident.
Counsel argue Theriot's statement was admissible (1) because his testimony is unavailable due to his demise, and (2) that the recitals of the statement form part of the res gestae. The questioned statement was made part of the record in accordance with LSA-C.C.P. art. 1636.
The cab company's investigator learned of the accident about ten minutes after its occurrence, and it took him five minutes to reach the scene. After conferring with Theriot, the hand-written statement, consisting of two pages, was made and signed. We have read the document and leave it with the conviction that the person who furnished the information therein was composed, deliberate, coherent and had thoughtfully considered the language used.
The trial judge correctly excluded the statement. Were Theriot living, the investigator could not be permitted to recite what he heard Theriot say as such testimony would constitute the rankest kind of hearsay. Extrajudicial statements, declarations and admissions of a deceased person are the weakest of all evidence and scarcely worthy of consideration. Declarations of a party deceased are inadmissible if the same would be excluded as hearsay were he alive. Larocca v. Ofrias, 231 La. 292, 91 So.2d 351; W. H. Hodges & Company v. Wood, 230 La. 525, 89 So.2d 60; Gibson v. Fitts, 189 La. 753, 180 So. 509; Davidson v. American Paper Mfg. Co., 188 La. 69, 175 So. 753; Franchebois v. New York Life Ins. Co., 171 La. 358, 131 So. 46; Demarets v. Demarets, 144 La. 173, 80 So. 240; Succession of Fisher, 141 La. 189, 74 So. 900; Swift v. Moffett, La.App., 6 So.2d 93; Community Finance Service v. Wiseman, La.App., 4 So.2d 446; Duhe v. Williams, La.App., 199 So. 518; Hood v. Glass, La.App., 198 So. 543; Commercial Trust & Savings Bank v. Thorengren, La.App., 122 So. 92.
' Res gestae' are spontaneous and contemporaneous declarations made by the parties at the time of the occurrence or soon thereafter and as such are admissible in evidence. To constitute res gestae, the statement must not only be reasonably contemporaneous with the event, but must also be spontaneous and uncalculated. To render evidence admissible as res gestae, a showing must be made that, under the conditions prevailing during moments of tenseness, the declarant was reasonably precluded from coolly deliberating or designing so as to fabricate his own interest. Marler v. Texas Pac. Ry. Co.,52 La.Ann. 727, 27 So. 176; Ellis v. Edwards, La.App., 183 So. 116; Butler v. Washington-Youree Hotel Co., La.App., 160 So. 825; Holland v. Owners' Automobile Ins. Co. of New Orleans, La.App., 155 So. 780; Davis v. Texas Lumber Co., La.App., 146 So. 788; Donaldson v. Riddling's Succession, La.App., 145 So. 804; Day v. Armour Fertilizer Works, 8 La.App. 720.
To say the least, the statement is self-serving; by the time the investigator arrived upon the scene, Theriot had ample time in which to compose himself and reflect, and it is manifest that by the statement he meant to exonerate himself from all blame.
Micheli, Mrs. Micheli, the Micheli child and a man named Sumarall, who was driving his automobile immediately to the rear of the Micheli car and traveling in the same direction, testified as plaintiff witnesses. The only eye witness the cab company produced was a Negro named Frank Jack.
The trial judge stated in his reasons for judgment that he 'was not impressed' with the testimony of Sumarall and Jack; he thought Mrs. Micheli was nervous 'and in fact appeared insecure' and 'In short, * * * whereas Mrs. Micheli thinks she knows how the accident happened, she was so 'shook-up' when the two cars collided that actually she does not know what happened.' The judge also stated that Paul, Jr., did not know what happened because he was only eight years old at the time of the accident and was testifying three years later. The judge made no comment regarding Micheli's testimony; nevertheless, he did not accept it. The reasons for judgment conclude with the following observation:
'The Court cannot simply throw up its hands and say 'we pass."
The trial judge predicated his holding against all defendants on Insurance Co. of North America v. Gore, La.App., 106 So.2d 471, decided by the late Court of Appeal, Parish of Orleans. The facts of that case are not at all analogous to the present situation. There the parked automobile of an innocent third party was run into and damaged as a result of a collision between two vehicles, the owners whereof were made defendants in solido. The court held that, under the circumstances attending the accident, each defendant bore the burden of exculpating himself from fault, and in the absence of any showing to the contrary, each must be deemed guilty of negligence per se.
We cannot share the trial judge's view that the testimony of the plaintiff witnesses is unacceptable and without probative value.
The Michelis were passing through New Orleans enroute to Florida. After indulging in some sightseeing, they were making their way to U.S. Highway 90 so as to continue onward to their destination.
In view of the holding below, it would be proper to quote the pertinent parts of the testimony of the plaintiff witnesses.
Micheli testified as follows:
'
'So I immediately pressed upon the brake and stopped the car as fast as I could, and it wasn't quite...
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