Rudisill v. Cordes

• Decision Date: 22 March 1939
• Docket Number: 83
• Citation: 333 Pa. 544,5 A.2d 217
• Parties: Rudisill, Appellant, v. Cordes
• Court: Pennsylvania Supreme Court

5 A.2d 217

333 Pa. 544

Rudisill, Appellant, v. Cordes

No. 83

Supreme Court of Pennsylvania

March 22, 1939

Argued January 17-18, 1939.

Appeal, No. 83, Jan. T., 1939, from judgment of C.P. Adams Co., Aug. T., 1936, No. 170, in case of Lottie K. Rudisill v Henry Cordes. Judgment affirmed.

Trespass for wrongful death. Before SHEELY, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned, among others, were various rulings on evidence.

The judgment is affirmed.

John D Keith, with him Franklin R. Bigham, of Keith & Bigham, and Daniel E. Teeter, for appellant.

Thomas Raeburn White, with him Eugene V. Bulleit, Hamilton Page Wayland H. Elsbree and White & Staples, for appellee.

Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. MAXEY, JUSTICE.

Plaintiff, Lottie K. Rudisill, brought an action in trespass for the death of her husband, John Z. Rudisill, alleged to have been caused by the negligence of defendant in operating an automobile. The case was tried and a verdict for defendant returned. A motion for a new trial being refused, this appeal followed.

The accident occurred on the morning of February 5, 1936, in Adams County, on the state highway. The surface of the highway at the scene of the accident and for several miles south of it was entirely covered with a coating of ice a quarter of an inch thick. The deceased, a mail carrier, was proceeding northward along the highway in the performance of his duties. He stopped his car on the eastern side of the roadway in front of Samuel Young's property but slightly north of Young's mail box. The right wheels of his car were between six inches and a foot away from a snow bank which lined the eastern side of the roadway. The distance between this bank and the one on the opposite side of the road was about fourteen feet. After stopping his car, the deceased alighted from the left side of it and, holding to its side, proceeded slowly toward the rear in the direction needed to reach the mail box. When near the rear of his car, he was struck by the skidding automobile driven by defendant and received fatal injuries. Defendant first observed the deceased's car when he was "about two city blocks away" from it. He did not notice the deceased standing upon the highway or moving along the parked car until he was about 75 feet away, and he continued to drive forward at about ten or fifteen miles per hour. After he attempted to turn toward the western side of the highway to avoid the deceased and the parked car, his car skidded and his right front fender struck the deceased and he lost entire control of his car. Upon the trial the defendant offered to prove as part of the res gestae that the deceased had stated while still at the car and immediately after taken into the Young house that "accidents will happen, this man could not help it." The evidence offered was objected to as "hearsay" and as "a matter of opinion." The objection was overruled. The court refused to strike out this testimony. It later developed from the examination and cross-examination of witnesses that no such statement had been made by the injured man while at the car, but was made ten or fifteen minutes later, after the victim had been carried into the Young house and after he requested those in attendance to notify the postmaster at Littlestown of the accident in order that the undelivered mail could be taken care of.

The court below in its opinion refusing a new trial said: "No testimony whatever was produced to show that any statement was made at the car or prior to the decedent's being carried into the house. The offer was objected to as hearsay evidence . . .; that it was not a dying declaration; that statements of the decedent would be inadmissible in an action brought by his widow; that the alleged declaration is a matter of opinion and not of facts. . . . The question thus presented is not free from difficulty. Unquestionably, admission in evidence of a statement by the decedent that the person causing his injury was not at fault would be prejudicial to the plaintiff, and if the admission of that testimony were improper, a new trial must be granted." The court stated further: "The declaration of the decedent was a declaration against his interest and an admission on his part that the defendant was without fault and, as such, would be admissible even though not a part of the res gestae. . . . The most serious objection to the admission of the declaration in this case is that the declaration was a statement of a conclusion or of the opinion of the declarant and is not a statement of fact." The court ruled that this objection is not valid against a declaration against interest and asks: "Would the evidence alleged to be kernelled in the declaration be admissible if, at the trial, the declarant assumed a contrary position? If so, it should also be admissible where the contrary position is assumed by those bringing the action in succession to or substitution for his action: Hughes v. Delaware and Hudson Canal Company, 176 Pa. 254, 260 ."

Appellant cites in support of her contention the language of this court in Com. v. Fugmann, 330 Pa. 4, 198 A. 99, where we declared inadmissible as a res gestae declaration a statement made by the deceased in that case immediately after a fatal explosion because we held that "the evidence alleged to be kernelled in the declaration would not have been competent if the declarant was on the stand to make the declaration under oath." There the declaration, "Fugmann done this," was palpably based on conjecture and not on perception. In the instant case, the declaration of the victim of the accident was just as palpably not based on conjecture but was a mental conclusion based on what his senses had just perceived. The statement: "Accidents will happen; this man could not help it," was not a mere surmise as was Fugmann's statement in the case cited. It was a characterization of the occurrence in which the declarant, Rudisill, had just participated as victim. Having perceived it in all its phases, he characterized it as an accident not due to the man whose car had struck his. The characterization was based on his own observation then and there, and not, as in the Fugmann case, on something which had been in the mind of the then victim, Maloney, before the bomb exploded. Maloney's declaration was clearly not based on the perception of his senses at the time or immediately before the fatal happening. Rudisill's declaration had all its rootholds in the occurrence; Maloney's declaration had none of its rootholds in the occurrence. This difference in their origins makes a vast difference in the relative probative values of the declarations in question. Wigmore has said: "The conclusions and tests of everyday experience must constantly control the standards of legal logic": 1 Wigmore on Evidence (Revised ed.), p. 232. Thayer in his Preliminary Treatise on Evidence, page 271, says: "The whole process of legal argumentation and the rules for it . . . are mainly an affair of logic and general experience, not of legal precept. . . . In dealing with litigation courts are not engaged in an academic exercise. . . . Their main business [is] that of awarding justice. . . . [p. 272]: What is called the legal mind is still the human mind, and it must reason according to the laws of its constitution." The foregoing principles do not mean that judges do not have to decide first "whether a particular fact is fit to be considered." ^[*]

In their functions as preliminary testers of evidence, the courts have admitted "through the evidentiary portal" certain statements which are called "hearsay" because they are not made in court under the sanctity of an oath. Included in this general category of "hearsay evidence" are "res gestae declarations," "dying declarations," and "declarations against interest." When the trial judge correctly places any of these labels on "hearsay" testimony offered, the evidence becomes admissible. The labels are but badges of admissibility; the evidence is admissible because of its prima facie probative value, and is therefore worth considering by the jury, its credibility and weight in effecting persuasion are always for the jury's determination. As to dying and res gestae declarations, we said in Com. v. Fugmann (supra), that "the solemnity attendant upon the one and the spontaneity of the other are mere avouchments of sincerity." In other words, the attendant "solemnity" and "spontaneity" referred to are in the trial of cases accepted as substitutes for the oath required of a witness in court, as a sanction for the receipt of his...