Reynolds v. W. T. Grant Co.

• Decision Date: 16 June 1936
• Docket Number: 8344.
• Citation: Reynolds v. W. T. Grant Co., 117 W.Va. 615, 186 S.E. 603 (W. Va. 1936)
• Parties: REYNOLDS v. W. T. GRANT CO.
• Court: West Virginia Supreme Court

186 S.E. 603

117 W.Va. 615

REYNOLDS v. W. T. GRANT CO.

No. 8344.

Supreme Court of Appeals of West Virginia.

June 16, 1936

Submitted April 14, 1936.

Syllabus by the Court.

1. The extrajudicial declarations of an agent, not made under oath are not admissible in evidence as admissions against the interest of the principal unless the declarations relate to an act within the authorization of the agent in which the agent was engaged at the time the declarations were made.

2. In order that an extrajudicial declaration, not made under oath be admitted in evidence as a part of the res gestæ, it must be made to appear, as one of the elements constituting this exception to the hearsay rule, either that the person making the declaration was an actor in the occurrence to which it relates, a witness thereof, or that the matters embodied in the declaration were within the personal knowledge of the declarant.

Error to Circuit Court, Wood County.

Action by Ruth D. Reynolds against the W. T. Grant Company. To review a judgment for defendant, plaintiff brings error.

Affirmed.

Robt. B. McDougle and Wm. Bruce Hoff, both of Parkersburg, for plaintiff in error.

Ambler McCluer & Ambler, of Parkersburg, for defendant in error.

KENNA Judge.

This is an action of trespass on the case to recover damages for injury alleged to have been sustained as a result of defendant's negligence in knowingly permitting the floor of one of its sales rooms to remain in bad condition. Error is prosecuted by plaintiff, an invitee, to the action of the trial court in directing a verdict for the defendant after the jury had deliberated for some time.

Plaintiff who, together with her son-in-law and a friend, was in defendant's store on May 14, 1934, the date of the alleged accident, for the purpose of making purchases, claims to have slipped and to have fallen near the hosiery counter by reason of having stepped upon a slippery spot in the floor that defendant negligently permitted to be there. She says the manager assisted her to rise, and, in the presence of her son-in-law and a Mr. Deem, stated that some one else had fallen at the same place earlier in the day; that the floor was in a dangerous condition there; and that something would have to be done about it. The two last-named individuals corroborate the plaintiff in this regard. The manager denied the admission attributed to him, and testified that nobody else had fallen there that day or any other day. Other employees present did not hear Hudson make admission attributed to him.

On the issue of whether or not the floor was unsafe, we have merely the statement of two witnesses for the plaintiff that the floor seemed to be "slick" at that place, and the alleged admission of Hudson that something had to be done about it. There was a sharp conflict as to whether there was oil or any other fluid on the floor at the time. Mr. Hudson says that there was no discoloration or dark spot.

The question is whether the plaintiff had shown by her evidence, including the alleged admission or statement of Hudson, that the place was dangerous, and that defendant had opportunity to discover that fact an appreciable time before plaintiff's injury.

It is the plaintiff's contention that the proof is conflicting upon the question of prior knowledge or of opportunity to know of the condition of the floor on the part of the defendant. A careful examination of this record discloses that the testimony of the statements made by the manager of defendant's store upon assisting the plaintiff to arise from her fall constitute the only evidence showing that the plaintiff had either prior knowledge, or prior opportunity to know, of the alleged dangerous condition of the floor in its storeroom. The plaintiff's case in this respect, therefore, rests upon the propriety of admitting this proof over the objection of the defendant. If it was error to admit proof of the alleged admissions or statements of the witness Hudson, then the trial court was right in directing a verdict for the defendant, and its judgment in so doing must be affirmed.

Under our West Virginia cases, it seems clearly established that it is relevant to show in cases of this kind that some other person at a former time had fallen at the same place and from the same cause that the plaintiff fell, provided the conditions are shown not to have changed during the time intervening between the two events. Truschel v. Rex Amusement Co., 102 W.Va. 215, 136 S.E. 30. This seems to be the general holding. John Gerber Co. v. Smith, 150 Tenn. 255, 263 S.W. 974; Branch v. Klatt, 173 Mich. 31, 138 N.W. 263; Long v. John Breuner Co., 36 Cal.App. 630, 172 P. 1132; Rothschild v. Fourth and Market Street Realty Co., 139 Cal.App. 625, 34 P.2d 734; Central Amusement Co. v. Van Nostran, 85 Ind.App. 476, 152 N.E. 183, 154 N.E. 390; Glynne v. National Exhibition Co., 204 A.D. 757, 198 N.Y.S. 751. Therefore, if the plaintiff here has shown by competent evidence that prior to the fall sustained by the plaintiff and on the same day another person had fallen under the same conditions and from the same cause, and that the manager of the defendant's store was apprised of the fact an appreciable length of time before the fall sustained by the plaintiff, the verdict for the defendant, in the light of the other proof, should not have been directed; otherwise, the judgment of the trial court is right. There was no direct proof of these essential facts. Plaintiff sought to show them by proving what the manager of defendant's store had said at the time he assisted plaintiff to arise.

The rule against the admission of hearsay evidence renders inadmissible mere extrajudicial statements of fact as proof of the facts stated. Under this rule, the statements of the defendant's store manager were clearly inadmissible. The question, then, is whether these statements fall within some recognized exception to the hearsay rule. There are but two well-recognized exceptions to that rule to be considered in this connection: (1) Whether the statements constituted admissions against interest on the part of the corporate defendant; and (2) whether the statements are admissible as constituting a part of the res gestæ.

The holdings under, and discussions of, the doctrine of res gestæ appear to contain a preponderance of confusion, so that it is almost impossible to reach a conclusion with reference to it that cannot at least partially be undermined by decided cases and text comments. A part of this confusion seems to come from seeking to apply the rule where there is no necessity to invoke it because of the fact that the proof offered is not hearsay at all, and a part of it seems to come from the fact that the rule is frequently sought to be invoked where, in reality, the evidence sought to be introduced is admissible under some other exception to the hearsay rule. In the first category falls the proof of what might be called a verbal circumstance, as where a declaration is introduced to show the intention of the declarant, or where some senseless or violent statement might be introduced as tending to show insanity. In considering such declarations, there is no question of hearsay involved, because the declarations are not offered to prove their factual content, but simply as circumstances drawing their force from the mere fact that the declaration or statement was made, regardless of its truth. In the second category are those declarations that are admitted in evidence as admissions against interest, which do not fall within the res gestæ exception at all. The basis for the admission of the former as constituting an exception to the hearsay rule is that a person will not falsely state a matter against his own interest; the basis for admitting the latter is that the stress and excitement of the...