Rice v. Jackson
| Decision Date | 19 April 1965 |
| Docket Number | 254,No. 3,Nos. 253,s. 253,3 |
| Citation | 1 Mich.App. 105,134 N.W.2d 366 |
| Parties | , 13 A.L.R.3d 1104 John J. RICE and Ohio Casualty Insurance Company, Subgrogee of John J. Rice, Plaintiff-Appellee, v. Homer H. JACKSON, d/b/a Jackson Trucking Company, Defendant-Appellant. Robert J. DE PAUW, Plaintiff-Appellee, v. Homer H. JACKSON, d/b/a Jackson Trucking Company, Defendant-Appellant. Cal |
| Court | Court of Appeal of Michigan — District of US |
Elizabeth Ramsey, Plainwell, for appellant.
Rex W. Orton, Allegan, for appellee.
Before HOLBROOK, P. J., and FITZGERALD and GILLIS, JJ.
A direct confrontation between statements bearing on the outcome of a case and rules of evidence which seek to exclude consideration of such statements are the makings for a lively lawsuit. And no less lively is the appeal, for it creates a fabric which is capable of confounding both lawyer and layman, reaching back, as it does, into the dim beginnings of the rules of evidence governing what is 'admissible' and what shall be considered 'inadmissible.'
To set the scene more fully, we must take note that the principal character in the events which comprise this appeal is one Leon Harter, who is not a party to the case and who, indeed, was not even present at the trial to testify. Yet it is Leon Harter's words which haunt the courtroom and it is Leon Harter whose lips Defendant-Appellant seeks to seal.
Leon Harter, our missing witness, was a truck driver-mechanic for the Jackson Trucking Company in Otsego, Michigan.
At about 11:30 on the morning of September 8, 1961, he was alone in the Jackson garage when a fire broke out in the building which also housed a gasoline station operated by Plaintiffs Rice and De Pauw. In 35 minutes, the structure was totally destroyed.
In a suit against Jackson Trucking Company, Plaintiffs alleged that the fire was caused by the negligence of Leon Harter and brought suit against his employer, Homer Jackson, in the Allegan County circuit court. The judge, sitting without a jury on the two consolidated cases, awarded damages totaling $4,246.25 against Jackson for Plaintiffs' lost tools, lost inventory and loss of income resulting from the fire.
Leon Harter was the only person who could have had actual knowledge of the fire's origin but he could not be reached with a subpoena and was not present to testify at the trial.
Plaintiff Rice testified, however, that Harter had rushed into his part of the building with the news that the building was on fire. Rice further testified that after some cars had been rescued from the burning premises by Harter, De Pauw and himself, Harter told him that the fire was started when sparks from his acetylene torch ignited some gasoline and oil on the floor and went through the gasoline line into the tanks of the truck on which he was working. Plaintiff De Pauw testified to essentially the same statements by Harter.
Rice's employee, Gerald Sunnock, substantiated Rice's and De Pauw's testimony in regard to the statements, stating Harter had told him approximately the same thing. The conversation occurred approximately 20 to 25 minutes after Harter ran to Rice with news of the fire, and while firemen were still attempting to deal with the blaze. Flames had just gone through the roof.
The primary issue on appeal is whether the statements of the absent Leon Harter as to the cause of the fire--clearly hearsay evidence--are nevertheless admissible as res gestae statements. The trial court ruled that they were so admissible and gave a judgment for Plaintiffs. Defendant appealed this determination.
No rule of law has ever been developed but that attorneys and courts have seized upon ways to circumvent binding restrictions. No better candidate for exceptions has ever been found than the hearsay rule, strict adherence to which would exclude a large proportion of testimony. To be sure, in any law school study of evidence, more time is spent on exceptions to the hearsay rule than upon the rule itself. But exceptions to rules frequently become catch-alls for anything which seeks to bend the hard and fast rule, to the point where they almost submerge the rule itself.
Perhaps the most apt description of the evidentiary swamp into which a pursuit of the res gestae can lead us is best enunciated by Morgan, A Suggested Classification of Utterances Admissible as Res Gestate, 31 Yale L.J. 229 (1922) in which he states:
Yet it is only exact analysis and precise thinking which will unravel the statements of Leon Harter and why they bear upon the case.
The hearsay rule 'prohibits the use of a person's assertion as equivalent to testimony of the fact asserted, unless the asserter is brought to testify in court on the stand where he may be probed and cross-examined as to the grounds of his assertion and of his qualifications to make it' (5 Wigmore on Evidence [3d ed.] § 1364, p. 9). In application, if a witness in court testified to what another person out of court stated to him and the court or jury is asked to believe that the statement is true, this testimony would be hearsay and not admissible in evidence.
Hearsay is generally prohibited because credibility depends not on the sworn and cross-examined witness, but on the unsworn and un-cross-examined, absent narrator. (2 Jones on Evidence [5th ed.] § 268, p. 514).
Under the general heading of res gestae there have emerged exceptions to the rule prohibiting hearsay evidence for statements uttered under the stress of excitement produced by a startling event, and made before the declarant has had time or opportunity to reflect or contrive. Whether labeled 'excited utterances,' 'spontaneous exclamations,' or more generally, 'res gestae statements,' they are admissible because special reliability is thought to be furnished by the excitement which suspends the powers of reflection and fabrication.
In Michigan, the law regarding res gestae is clear. From Rogers v. Saginaw-Bay City R. Co. (1915), 187 Mich. 490, 153 N.W. 784, to Holtz v. L. J. Beal & Son, Inc. (1954), 339 Mich. 235, 63 N.W.2d 627, the conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.
The 'startling occasion' called for under point (1) has been applied by the Michigan Supreme Court to explosions, collisions, accidental injuries, shootings, and a variety of occurrences. It has never ruled on a fire involving res gestae such as present here, an event that is by character a continuing one. Previous decisions have dealt with one-time, split-second 'startling occasions.' Defendant-Appellant urges that the continuing character of a fire is such that the spontaneity of a statement can be lost while the fire transpires.
With this was cannot agree. A fire that completely destroys a large building housing two businesses, in which the roof collapses, and in which considerable property is lost, cannot be said not to be a 'startling occasion' simply because it took 35 minutes for the destruction to be wrought. Leon Harter's admissions were made at the time the fire broke through the roof. That he was in a state of nervous excitement is shown by the fact that when he initially notified Plaintiff Rice of the fire it had gone beyond his ability to control it and he stated it was too late for a hand fire extinguisher to do any good. Harter, Rice and De Pauw worked feverishly attempting to salvage vehicles and equipment and were finally forced to stand across the street and watch the conflagration. Twenty to 25 minutes of frantic activity in saving materials from the building offered scant time for the reflecting that point (1) warns against or for the contriving or misrepresentation of point (2).
Defendant-Appellant urges that the Harter statements were not spontaneous since they were in response to questions asked of him:
Mr. Rice said:
'I asked him what he was doing.'
Witness Sunnock said:
'I asked him how the fire had started. * * *'
And Leon Harter answered.
Here we pursue an evidentiary illusion: that Leon Harter should not say these things; that if he did, they are not admissible; that if admissible, they mean nothing.
But the illusion is fragile and shatters easily: Leon Harter did say these things; he said...
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