Pickwick Stages Corp. v. Williams

• Decision Date: 06 May 1930
• Docket Number: 2905,2904,Civil 2903,2906
• Citation: 287 P. 440,36 Ariz. 520
• Parties: PICKWICK STAGES CORPORATION, a Corporation, Appellant, v. R. M. WILLIAMS, Appellee. PICKWICK STAGES CORPORATION, a Corporation, Appellant, v. AMERICA WILLIAMS and R. M. WILLIAMS, Wife and Husband, Appellees. PICKWICK STAGES CORPORATION, a Corporation, Appellant, v. J. HOMER SMITH, as Administrator of the Estate of ROSE WILLIAMS, Deceased, Appellee. PICKWICK STAGES CORPORATION, a Corporation, Appellant, v. J. HOMER SMITH, as Administrator of the Estate of MORRIS L. K. WILLIAMS, Deceased, Appellee
• Court: Arizona Supreme Court

287 P. 440

36 Ariz. 520

PICKWICK STAGES CORPORATION, a Corporation, Appellant, v. R. M. WILLIAMS, Appellee.

PICKWICK STAGES CORPORATION, a Corporation, Appellant, v. AMERICA WILLIAMS and R. M. WILLIAMS, Wife and Husband, Appellees.

PICKWICK STAGES CORPORATION, a Corporation, Appellant, v. J. HOMER SMITH, as Administrator of the Estate of ROSE WILLIAMS, Deceased, Appellee.

PICKWICK STAGES CORPORATION, a Corporation, Appellant, v. J. HOMER SMITH, as Administrator of the Estate of MORRIS L. K. WILLIAMS, Deceased, Appellee

Civil Nos. 2903, 2904, 2905, 2906

Supreme Court of Arizona

May 6, 1930

APPEALS from judgments of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.

Messrs Armstrong, Lewis & Kramer and Mr. William H. Westover, for Appellant.

Mr. H H. Baker, Mr. R. N. Campbell and Mr. M. C. Spicer, for Appellees.

OPINION

ROSS, J.

These four actions are for damages for personal injuries sustained in a collision between the automobile of plaintiff R. M. Williams and one of the busses of the Pickwick Stages Corporation. Both cars were proceeding westerly along the public highway leading from Phoenix via Yuma, Arizona, to California. When near the village of Mohawk, about 1 o'clock in the afternoon of December 4th, 1928, the bus overtook and collided with the Williams car. The latter was a seven-passenger Elcar sedan, and riding in it were R. M. Williams, seventy-eight years old, his wife America, seventy-six, their son Morris L. K., fifty-six and his wife Rose, forty-eight. All were going from their home in Evansville, Indiana, to Pasadena, California, where they had a winter home. Morris was driving the Elcar. The bus was a thirty to thirty-three passenger coach, pretty well loaded, powered with a Pierce Arrow motor, and was being driven by H. A. Lorang. The bus traveled on a regular schedule of about thirty-five miles per hour. As a result of the collision Morris was instantly killed, his wife so seriously injured that she died within a few hours after reaching a hospital in Yuma, R.M. received some slight injuries and his automobile was a total loss, and America was very seriously injured. Two of the suits are by J. Homer Smith, administrator, in behalf of the estates of Morris and Rose, one is by R.M. and the other by America in which her husband is formally joined as a party.

The four actions arising out of the same transaction or accident were by the court ordered tried at the same time and before the same jury. Separate verdicts were rendered and separate judgments were entered in favor of plaintiffs. Defendant moved for a new trial, which was denied in the suits prosecuted by the administrator, but granted as to the other two cases "but only as to the amount of damages." The appeal is from all the judgments and from the order denying a new trial in the administrator cases and the order limiting the issues in the new trials granted to the question of damages only.

Two assignments are urged. We state them in the language of appellant:

"1. The court erred in permitting the witnesses R. M. Williams and America Williams to testify, over the objection of the defendant, that shortly after the accident H. A. Lorang, the driver of the Pickwick stage, said to these witnesses: 'I am to blame for this; I am sorry.'"

"2. The court erred in instructing the jury as follows: 'And if you find that the defendant drove its stage at a speed in excess of thirty-five miles per hour, it was guilty of negligence, and if such negligence was the proximate cause of the injuries received by the plaintiffs, it will be your duty to find for the plaintiff.'"

Under the first assignment it is contended that the statement of the driver Lorang, if made (a) was but an expression of opinion, (b) was not within the scope of his employment and therefore not binding upon appellant, and (c) was no part of the res gestae. Referring to the page of the transcript where the testimony objected to is extended, we find that the objections thereto were that such testimony was not a part of the res gestae and was not within the scope of the Lorang employment. There was no objection to it on the ground that it was the opinion or conclusion of the witness. Even though the testimony was objectionable on the ground that it was merely the opinion of the witness, this objection was not urged to the court and was not ruled upon and cannot be made the basis of error for the first time on appeal. Central Copper Co. v. Klefisch, 34 Ariz. 230, 270 P. 629. Error, especially in the admission of evidence, is directed at the court's rulings and is limited to the grounds urged against its admissibility when it was offered.

We will consider the other two objections to this testimony. The collision occurred when the bus attempted to pass the Elcar. At this point the road was fairly smooth, gravel surfaced, and twenty-four feet wide. The terrific impact tore the front axle and front wheels from the bus, turned the Elcar over twice and inflicted upon its occupants the injuries heretofore stated. Immediately some of the passengers on the bus, none of whom was seriously hurt, together with Lorang went to the Elcar and assisted the two survivors from the wreck, the other two having been thrown out of and clear of the car, as a result of the collision. It was while America Williams was being taken out of the wrecked car, or immediately thereafter, she says, when Lorang made to her the quoted statement. The same statement was made by Lorang to R. M. Williams, according to the latter's testimony, on the way to Mohawk, where he and his wife were taken (Lorang going along) for first aid in an automobile that arrived on the scene right after the accident. The distance to Mohawk was three and one-half to four miles and Lorang testified that they left for Mohawk within three or four minutes after the accident and traveled at the rate of thirty to thirty-five miles in going there. The statement testified to by R. M. Williams could not have been made later than eight minutes after the accident and might have been made earlier.

The time element is always important in determining whether a statement or declaration should be admitted in evidence as a part of the res gestae, but it is not controlling. It need not be at the identical instant of the main occurrence any more than it is necessary that it be at the same place. Spontaneity is of more importance than either. It is said in 22 Corpus Juris, 461, section 549: "In order for a declaration to be admissible as a part of the res gestae, it must be the spontaneous utterance of the mind while under the influence of the transaction, the test being, it has been said, whether the declaration was the facts talking through the party, or the party talking about the facts. The guaranty for truth is found in such a correlation between the statement and the fact of which it forms part as strongly tends to negative the suggestion of fabrication or invention, and a suspicion of afterthought will prevent the reception of the statement."

The very fact that Lorang's utterance was inculpatory of himself and his principal refutes the thought that he might have been fabricating. It is natural to excuse or justify mistake rather than to admit fault or assume responsibility. When the latter occurs, we think it may be fairly taken to be as an expression forced from the declarant by the pressure of the circumstances rather than the narrative result of afterthought. There is no ground for suspicion that Lorang deliberately assumed the blame contrary to the fact. If he had been inventing or fabricating, his utterances naturally would have been exculpatory of himself and his principal.

In Benton v. Regeser, 20 Ariz. 273, 179 P 966, 968, the driver of the car was the agent of the defendant and his statement made shortly after the accident, at a hospital to which the injured had been moved, to the effect ...