San Antonio Public Service Co. v. Alexander

• Decision Date: 10 February 1926
• Docket Number: (No. 572-4391.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 280 S.W. 753
• Parties: SAN ANTONIO PUBLIC SERVICE CO. v. ALEXANDER.
• Court: Texas Supreme Court

280 S.W. 753

SAN ANTONIO PUBLIC SERVICE CO. v. ALEXANDER.

(No. 572-4391.)^*

Commission of Appeals of Texas, Section B.

February 10, 1926.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by James P. Alexander against the San Antonio Public Service Company and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (270 S. W. 199), and the San Antonio Public Service Company brings error. Affirmed.

Templeton, Brooks, Napier & Brown, of San Antonio, for plaintiff in error.

S. Engelking, of San Antonio, for defendant in error.

SPEER, J.

Defendant in error sued the San Antonio Public Service Company, a street car company, J. F. Lozano, who owned and operated a jitney bus, and the Southern Casualty Company, which carried a $2,500 insurance bond on the jitney bus, to recover damages for a personal injury sustained while riding as a passenger in the jitney bus on account of a collision between the jitney bus and a street car operated by the service company, and, to review the action of the Court of Civil Appeals in affirming such judgment (270 S. W. 199), the writ of error herein has been granted upon application of the service company. The petition for writ of error complains of two matters: First, a ruling upon the admissibility of evidence; and, second, one upon the alleged misconduct of the jury. The first question is presented by a group of assignments, all of which, however, are similar, and upon which is predicated the proposition that certain declarations which were made on the ground immediately following the collision to the effect that it was not the motorman's fault, but was the fault of the jitney driver, were res gestæ, and were admissible, and tended strongly to show that the motorman was not negligent. The proposition further complains that the error in excluding such testimony was not rendered harmless by the instruction that the jitney driver was negligent. The Court of Civil Appeals, in discussing and deciding this point, said:

"This proposition fairly states the facts, and the testimony ordinarily would be admissible as part of the res gestæ. We think such statements come under the well-established rule in this state that, when such declarations accompany the transaction, and are made under such circumstances as will raise a reasonable presumption, they are the spontaneous utterance of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation or design. I. & G. N. Ry. Co. v. Anderson, 82 Tex. 519, 17 S. W. 1039, 27 Am. St. Rep. 902."

But it held that, if the ruling of the court was error, it was rendered harmless because the trial court gave an instruction that the jitney driver was negligent. This holding was directly in response to the contention of appellant in that court that such evidence was admissible as in the nature of an admission by the jitney driver. To that extent the holding appears to be an answer to the proposition, but we think the Court of Civil Appeals was in error in its intimation, if not its holding, that the statements were in any event admissible as part of the res gestæ. The doctrine by which the hearsay rule of evidence is relaxed so as to admit spontaneous contemporaneous statements as part of the res gestæ does not extend to statements such as those under consideration here, which are but the expressions of opinion by the declarant. The rule is that the reproduction of statements will not be permitted under the res gestæ exception, where the declarant, if present as a witness himself, would not be permitted to testify to the facts embodied in the statement. And there is no reason to suggest that the declarants here, if present in court, could express such opinions. The only case cited by the Court of Civil Appeals for its holding is not at all contrary to the rule we have just announced. The opinion in that case was written by Chief Justice Gaines, and the opinion of the same learned justice in the later case of G., C. & S. F. Ry. Co. v. Montgomery, 19 S. W. 1015, 85 Tex. 64, shows clearly that expressions of mere opinion by a bystander were not admissible as part of the res gestæ. In the case last referred to he says:

"The declaration of the witness Hamilton, made immediately after the accident, was that of a mere bystander expressing an opinion, and was not admissible as a part of the res gestæ. It was properly excluded."

In Barnes v. Barnes (Tex. Civ. App. w. ref.) 261 S. W. 485, it is said:

"It is the law that a declaration within the res gestæ rule is nevertheless inadmissible as evidence if it relates to a matter of fact which the declarant could not testify to as a witness. 22 C. J. 450; Sullivan v. Electric Co., 97 P. 1109, 51 Wash. 71, 130 Am. St. Rep. 1082."

The case of Sullivan v. Electric Co., 97 P. 1109, 51 Wash. 71, 130 Am. St. Rep. 1082, referred to involved the reproduction of an opinion under the res gestæ exception, and in the opinion the court uses this language:

"Three witnesses, called by the respondents, were permitted to testify, over objection, that at or about the time the deceased left the car a woman passenger in the same car got up, or jumped up, and exclaimed that `it was murder,' or, `looked like murder,' to let the deceased off at that place. * * * Assuming, without deciding, that exclamations of a mere bystander, in no manner connected with the principal transaction are admissible in evidence, yet such exclamations must relate to matters of fact which the party might properly testify to if called as a witness, and not to mere matters of opinion. To hold otherwise would place exclamations above sworn testimony. If the exclamation in question related to the principal transaction at all, it was nothing more than the expression of an opinion on the part of this woman that, if a person in the condition of the deceased were permitted to get off the car at that point, he would meet his death."

In City Ry. Co. v. Wiggins (Tex. Civ. App.) 52 S. W. 577 (w. ref.), it is said:

"The expression that `they did not blame him, and that it was not his fault,' embodied the very conclusion to be determined by the jury. Such conclusion of one not a party to the suit was certainly not admissible. See Railway Co. v. Montgomery, 85 Tex. 64, 19 S. W. 1015; Saunders v. R. R. Co. (Tenn. Sup.) 41 S. W. 1032 . The declaration of Overton, the bystander in this case, was not to be distinguished from that of appellee in the answer offered in evidence. The whole was therefore properly rejected, the evidence having been offered as part of the res gestæ, and not as an admission of appellee."

In Saunders v. R. R. Co., 41 S. W. 1031, 99 Tenn. 130, cited above, the Supreme Court of Tennessee said:

"That part of the answer attributing to the plaintiff's daughter the statement that `it was her father's fault' was incompetent for any purpose, and should have been excluded altogether. If she made the statement, it was, at most, but the expression of an opinion, and that, too, about a matter concerning which her opinion was not competent evidence."

In the course of that opinion the court referred with approval to Lane v. Bryant, 9 Gray (Mass.) 247, where the defendant's servant who was in charge of his carriage at the time of the accident, while being examined as a witness, was asked if he did not say, immediately after the collision, and while the plaintiff was being extricated, that the plaintiff was not to blame. In that case the court held that the alleged declaration of the servant was not competent for any purpose; neither as a part of the res gestæ nor as a foundation for contradiction.

The Court of Civil Appeals did not give much consideration to the res gestæ contention, thinking, no doubt, the instruction of the court with reference to the negligence of the jitney driver was an answer to the assignment, and perhaps the matter was not there stressed with the same definiteness as it is in this court. At all events, the Court of Civil Appeals was right in its conclusion that no error was committed by the trial court in excluding the evidence.

This brings us to a consideration of the question of misconduct of the jury. This point, too, is presented by a group of assignments. But the gist of the complaint lies in this: The action being against the street car company, the owner of the jitney in which the plaintiff was riding, and the insurance company, the question of apportioning the damages arose, and was discussed, by the jury. During their deliberations, and while this matter was being discussed, the jury came into the courtroom, and sought to be instructed whether or not they would be permitted to apportion the damages. They were instructed they had nothing to do with this matter, but, after returning to their quarters, the evidence taken upon the motion to set aside the verdict shows that the matter was further discussed. The character and extent of the discussion will appear from the testimony of one of the jurors, as follows:

"The jury all understood that the bonding company was only liable for $2,500, but a verdict against the Public Service Company and Mr. Lozano was not limited — whatever verdict was placed against them would have to be paid. Then, the jury also discussed that they didn't feel that the Public Service Company ought to be made to pay the majority of the verdict, inasmuch as the street car was only a contributing cause, and only partially to blame for the accident. That is why the jury had the foreman to write the question down on a piece of paper and submit it to the court as to whether or not the jury could distribute the amount to be paid by each one; and the judge then said the jury could not distribute the amount; that was left for the court to do. Then some one suggested that they were sure that the court would deduct the $2,500 to be paid by the bonding company, and put the...