Navajo Freight Lines v. Mahaffy

• Decision Date: 06 April 1949
• Docket Number: No. 3788.,3788.
• Parties: NAVAJO FREIGHT LINES, Inc. v. MAHAFFY et al.
• Court: U.S. Court of Appeals — Tenth Circuit

174 F.2d 305 (1949)

NAVAJO FREIGHT LINES, Inc. v. MAHAFFY et al.

No. 3788.

United States Court of Appeals Tenth Circuit.

April 6, 1949.

Welcome D. Pierson, of Oklahoma City, Okl. (George F. Short, of Oklahoma City, Okl., and Carl H. Gilbert and Wm. W. Gilbert, both of Santa Fe, N. M., on the brief), for appellant.

B. H. Carey, of Oklahoma City, Okl. (Cantrell, Carey & McCloud, of Oklahoma City, Okl., and A. B. Carpenter, of Roswell, N. M., on the brief), for appellees.

Before PHILLIPS, Chief Judge, HUXMAN, Circuit Judge, and SAVAGE, District Judge.

SAVAGE, District Judge.

Appellees, Margaret Mahaffy, Marceline Mahaffy and Edith Jacobs, commenced this action in the United States District Court for the District of New Mexico against appellant, Navajo Freight Lines, Inc., for recovery of damages resulting from an automobile collision. Judgment was entered on separate jury verdicts for each of appellees and this appeal followed.

Mrs. Mahaffy was the owner of a two door Chevrolet automobile. Her minor daughter, Marceline, and Miss Jacobs were riding with her in the automobile as her guests. On August 16, 1946, the car was struck by a tractor-trailer type of truck owned and operated by Navajo Freight Lines, Inc., at a point on or near Highway 66 in the vicinity of the filling station of the Laguna Trading Company at Laguna, New Mexico. The car was precipitated over a steep embankment and came to rest on the bank of the San Jose River. Each of the appellees suffered personal injuries and the Chevrolet was demolished.

The appellant complains of error in the admission and exclusion of evidence and in the giving of instructions to the jury. The evidence deemed material to the issues raised here will be narrated.

Miss Jacobs testified that she had been driving the car and parked adjacent to the East pump of the filling station facing East, parallel with the highway and 10 to 12 feet distant therefrom; that she turned off the motor, set the emergency brake and placed the car in gear; that she and Mrs. Mahaffy were out of the car for about ten minutes with Marceline remaining therein; that after they returned to the car Mrs. Mahaffy took the driver's seat and she was preparing to take the back seat; that she was standing stooped over in the car placing the skirt of her playsuit, which she had removed, on some luggage when the impact occurred, and that the motor had not been started and the car had not moved before being struck.

Mrs. Mahaffy corroborated the testimony of Miss Jacobs and, in addition, testified that after re-entering the car she was looking between the two front seats for her sun glasses at the time of impact; that she had not released the emergency brake, had not started the motor, had not taken the car out of gear, and the car had not moved; that after the car was struck, it turned over and over and finally went down the embankment which was about 40 feet deep, and that some men took her out of the car immediately after the accident and carried her to the top of the embankment.

Marceline testified that she remained in the car and that while watching Miss Jacobs she observed the back part of the truck strike the back part of the car; that the motor of the car had not been started, and the car had not moved.

The driver of the truck, L. C. Davis, testified that he was driving easterly along the highway at a speed of from 35 to 40 miles per hour; that when about 250 feet West of the filling station he saw the automobile moving very slowly from the filling station in a northeasterly direction and approaching the highway at an angle; that he took his foot off the accelerator, applied his brakes and slowed his speed to about 30 miles per hour; that he thought the automobile would stop before entering the highway and didn't attempt to stop the truck; that the automobile did not stop, but proceeded onto the highway at a point 50 or 60 feet in front of his truck; that at the time there was a Dodge car on the bridge over the San Jose River, located about 120 feet easterly from the filling station, approaching from the East; that he thought he could go between the Chevrolet automobile and the approaching Dodge but misjudged his distance; that the Chevrolet forced him to the left over the center line of the highway; that his left fender struck the Dodge and as he swung his tractor to the right the trailer hit the Chevrolet; that at the time of the collision he was within 25 feet of the bridge and his tractor-trailer came to a stop across the pavement.

Abraham, a witness called by Navajo, testified that he was employed at the trading post at the time of the accident and saw the collision; that he saw the Chevrolet car parked beyond the East pump facing in an easterly direction; that after the ladies re-entered the car, he saw the automobile roll down grade onto the highway in front of the truck; that the truck pulled to the left and first struck the Dodge car approaching from the East and then struck the Chevrolet at a point some 35 to 45 feet West of the bridge; and that he did not hear the motor of the Chevrolet started or hear the motor running as the car moved from the filling station to the highway.

A map drawn to scale by Ross, a licensed engineer, was received in evidence. It demonstrated the grade of the highway for a considerable distance in each direction from the point where the collision occurred, the location and elevation of the filling station with respect to the highway, the location of the San Jose river bridge with respect to the filling station and the distance and grade from the filling station to the bridge. A number of photographs were in evidence portraying the grade of the highway and the character of the terrain. These exhibits show that the highway beginning about 2000 feet West of the filling station and extending to the bridge is down grade; that there is a substantial slope down grade from the filling station to the highway and thence to the bridge; and that the filling station is approximately 120 feet from the West end of the bridge.

It is urged by Navajo that the trial court erred in permitting Mrs. Mahaffy to relate, over objection, a conversation had with the truck driver occurring shortly after the accident. Mrs. Mahaffy testified that right after the accident she had been removed from the automobile and, while she was being carried up the embankment, she asked, "who struck us?" and the truck driver replied, "I did, lady, my brakes jammed." The testimony was admitted by the court on the ground that the statement of the driver constituted an admission against interest.

It is a rule of general application that admissions made by an agent after the occurrence of an accident are not admissible in evidence against the principal for the reason that the making of admissions is not within the scope of the agent's authority. Vicksburg & Meridan Railroad Company v. O'Brien, 119 U.S. 99, 7 S.Ct. 118, 30 L.Ed. 299; Northern Central Coal Company v. Hughes, 8 Cir., 224 F. 57. While the rule has been followed with substantial unanimity, it has been criticized and there appears to be logical basis for such criticism. See Wigmore on Evidence, 3d Edition, Sec. 1078.

In Northern Central Coal Company v. Hughes, supra, the testimony of a witness reciting an oral statement made to him by the superintendent of the defendant coal company 3 or 4 days after the accident was held improperly admitted as beyond the scope of the superintendent's authority. In commenting on this case, Professor Wigmore says:

"* * * it is absurd to hold that the superintendent has power to make the employer heavily liable by mismanaging the whole factory, but not to make statements about his mismanagement which can be even listened to in court; the pedantic unpracticalness of this rule as now universally administered makes a laughing stock of court methods." 4 Wigmore on Evidence, 3d Edition, page 121, Note 2.

In the recent case of Whitaker v. Keogh, 144 Neb. 790, 14 N.W.2d 596, it was held that a statement made by an agent immediately after an automobile collision should have been received in evidence, in an action brought against the principal, as an admission against interest. The conclusion reached by the court in that case apparently stems from Wigmore's criticism of the general rule excluding such statements.

But if the evidence be deemed inadmissible on the ground stated by the court, it does not follow that error resulted from such admission. If the admission was proper on any ground, it is of no consequence that the court might have given the wrong reason for its admission. Wilcox v. Berry, 32 Cal.2d 189, 195 P.2d 414; Woodward v. City of Waterbury, 113 Conn. 457, 155 A. 825; 5 C.J.S., Appeal and Error, § 1464(c), page 82.

We conclude that the statement of the truck driver was admissible as a spontaneous declaration under the res gestae exception to the hearsay rule. This exception was discussed with clarity in Chesapeake & Ohio Railway Company v. Mears, 4 Cir., 64 F.2d 291, 292, where the court held admissible as a spontaneous declaration the statement made by the injured man as to the cause of injury. Judge Parker, speaking for the court, said:

"* * * There is some authority for the position of defendant that the declaration of decedent should be excluded as a mere narrative of a past transaction; but we...