Sconce v. Jones

• Decision Date: 19 November 1938
• Docket Number: 35277
• Parties: Herman Sconce v. John W. Jones and Ernie Amoneno, Doing Business as Interstate Film Delivery, Appellants
• Court: Missouri Supreme Court

121 S.W.2d 777

343 Mo. 362

Herman Sconce v. John W. Jones and Ernie Amoneno, Doing Business as Interstate Film Delivery, Appellants

No. 35277

Supreme Court of Missouri

November 19, 1938

Appeal from Jasper Circuit Court; Hon. W. J. Owen, Judge;

Reversed and remanded.

McReynolds & Flanigan, George V. Farris and Ray Bond for appellants.

(1) In order for a declaration to be admissible as a part of the res gestae it must be the spontaneous, involuntary and unpremeditated utterance of the mind while under the influence of the transaction or litigated act and a part of said transaction, the test being whether the declaration was the facts talking through the party or the party talking about the facts. Woods v. Southern Ry. Co., 73 S.W.2d 376; Landau v. Travelers' Ins. Co., 267 S.W. 379; Grant v. K. C. S. Ry. Co., 172 Mo.App 341; Vaughan v. St. Louis-S. F. Ry. Co., 177 Mo.App 174; State v. Hendricks, 172 Mo. 675; Dunlap v Railroad Co., 145 Mo.App. 221; State ex rel. Kurz v. Bland, 64 S.W.2d 642; Aetna Life Ins. Co. v. Kern-Bauer, 62 F.2d 479; 4 Chamberlayne on Evidence, sec. 2983; 3 Wigmore on Evidence (2 Ed.), sec. 1747; 22 C. J. 461; Hatfield v. Southwestern Grocer Co., 104 S.W.2d 721. (2) Where there has been a break in the chain of events relating to the injury, with an opportunity for the intervention of other influences over the mind of the injured person, than that of the main event, the declarations are not admissible. The shock must continue without abatement or dissipation until the actual time of the utterances. Grant v. K. C. S. Ry. Co., 172 Mo.App. 341; Woods v. Southern Ry. Co., 73 S.W.2d 377; Jewell v. Excelsior Powder Mfg. Co., 166 Mo.App. 563; Hooper v. Standard Life & Acc. Ins. Co., 166 Mo.App. 213; Dunlap v. C., R. I. & P. Ry. Co., 145 Mo.App. 221; Leahey v. Cass Ave. & Fair Grounds Ry. Co., 97 Mo. 173; 22 C. J. 466. (3) And, to be admissible, the statements must have been made at the first opportunity following the accident. Woods v. Southern Ry. Co., 73 S.W.2d 377; Vaughan v. St. Louis-S. F. Ry. Co., 177 Mo.App. 175; Grant v. K. C. S. Ry. Co., 172 Mo.App. 341. (4) To be admissible as a part of the res gestae statements must be: "An undesigned incident of a particular litigated act." State v. McKenzie, 228 Mo. 399. "The spontaneous utterances 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 and design." Barker v. St. L., I. M. & S. Ry. Co., 126 Mo. 155. And, "under circumstances which indisputably proclaim its spontaneity." Jewell v. Excelsior Powder Mfg. Co., 166 Mo.App. 562. And, "The automatic and undisguised incidents of a particular litigated act," and not, "a narrative of what had happened and the cause thereof and elicited by a question as to the cause of the trouble." Redmon v. Railroad, 185 Mo. 12. The test is "were the declarations the facts talking through the party or the party's talk about the facts. Instinctiveness is the requisite." State v. Lockett, 168 Mo. 487. (5) The burden of proof is on the party offering the statements claimed to be a part of the res gestae. Woods v. Southern Ry. Co., 73 S.W.2d 377; Venters v. Bunnell, 93 S.W.2d 72; Brashear v. Mo. Pac. Ry. Co., 6 S.W.2d 651; Aetna Life Ins. Co. v. Kern-Bauer, 62 F.2d 479; 22 C. J. 462; Hatfield v. Southwestern Gro. Co., 104 S.W.2d 721. (6) Although time is not the controlling element, it is an important element for consideration in determining whether the declaration was spontaneously made and constituted a part of the res gestae. Brashear v. Mo. Pac. Ry. Co., 6 S.W.2d 651; Cramer v. Parker, 100 S.W.2d 643. (7) Where evidence of declarations is improperly admitted on the theory that the declarations constitute a part of the res gestae and such evidence relates to a closely contested issue, the admission of same is prejudicial. Conduitt v. Trenton G. & E. Co., 326 Mo. 133, 31 S.W.2d 27. (8) The injection into a jury trial by the plaintiff of the fact or impression that the defendants are protected by liability insurance, or that an insurance company is defending or interested in the defense of the suit, is improper and prejudicial; and where such fact or impression is brought to the minds of the jury it is the duty of the trial court, at the request of the defendants, to discharge the jury, and a failure to do so constitutes reversible error. Olian v. Olian, 59 S.W.2d 678; Rystersky v. O'Brine, 70 S.W.2d 541; Allen v. Wilkerson, 87 S.W.2d 1064; Whitman v. Carver, 88 S.W.2d 888; Hannah v. Butts, 51 S.W.2d 8; Crapson v. United Chautauqua Co., 27 S.W.2d 726; Robinson v. McVay, 44 S.W.2d 240; Nolan v. Halpin-Dwyer Const. Co., 29 S.W.2d 220.

Frank R. Birkhead and McAllister, Humphrey, Pew & Broaddus for respondent.

(1) The testimony of witnesses Peters, Childers and Carr was properly admitted as a part of the res gestae. (a) Statements made by respondent Sconce before he was extricated from the wreckage are admissible. 3 Jones Commentaries on Evidence (2 Ed.), sec. 1205, pp. 2212-2213; 42 L. R. A. (N. S.) 956; Demaray v. M., K. & T. Ry. Co., 50 S.W.2d 127, 330 Mo. 589. (b) What statements should be admitted under the doctrine of res gestae must be left to the sound discretion of the trial judge and unless it appears that the trial court has abused this discretion no error has been committed. Landau v. Travelers' Ins. Co., 305 Mo. 563, 267 S.W. 376; Goucher v. Woodmen Acc. Co., 104 S.W.2d 294; 3 Wigmore on Ev. (2 Ed.), sec. 1750, pp. 745-751; Barry, Inc. v. Baker 82 F.2d 79; Provident Life & Acc. Ins. Co. v. Eaton, 84 F.2d 528; Bonner v. Texas Co., 89 F.2d 291; Roach v. Great Northern Ry. Co., 133 Minn. 257, 158 N.W. 232; Pride v. Interstate Business Men's Acc. Assn., 207 Iowa 176, 216 N.W. 62, 62 A. L. R. 31; Kressin v. Chicago N. W. Ry. Co., 194 Wis. 480, 215 N.W. 908; Mulligan v. Ry. Co., 88 S.E. 445, 104 S.C. 173; Ridenour v. Lewis, 238 N.W. 745, 121 Neb. 823; Walters v. Spokane Ry. Co., 58 Wash. 293, 108 P. 593, 42 L. R. A. (N. S.) 917; Starr v. Aetna Ins. Co., 41 Wash. 199, 83 P. 113; Texas Employees' Ins. Assn. v. Shifflette, 91 S.W.2d 790. (c) The amount of time transpiring between the main occurrence and the statements is not determinative. In other words, there can be no definite and fixed limit of time. 10 R. C. L., pp. 978, 980, sec. 161; 3 Wigmore on Evidence (2 Ed.), sec. 1750, p. 745; Cramer v. Parker, 100 S.W.2d 643; State v. Stallings, 64 S.W.2d 645, 334 Mo. 1. (d) In determining these matters, each case must be decided on the facts and circumstances of that case. Scully v. Rowling, 88 S.W.2d 394. (e) A statement is admissible as part of the res gestae though made in response to a question. Smith v. Southern Bridge Co., 30 S.W.2d 1086, 326 Mo. 109; State v. Martin, 124 Mo. 514. (f) Statement may be made to different persons at different times. State v. Hudspeth, 159 Mo. 204. (2) The court did not commit error in refusing to discharge the jury on account of objections to the cross-examinations of defendants' witnesses, Mrs. Joe Marlow and John W. Jones. Bobos v. Packing Co., 323 Mo. 224, 19 S.W.2d 630; Jones v. Mo. Frt. Transit Corp., 40 S.W.2d 470; Jablonowski v. Modern Cap Mfg. Co., 279 S.W. 97.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This case, recently reassigned to the writer, is an action for damages for personal injuries brought by an employee against his employers. Plaintiff had a verdict for $ 15,000. Defendants have appealed from the judgment entered.

The negligence charged and submitted was defective condition of the truck in which plaintiff was riding (front wheels shimmied and brakes acted unevenly), which it was claimed defendants had refused to remedy after complaint. It is conceded that plaintiff had sufficient substantial evidence on this issue to make a jury case, and only two assignments of error were made: (1) That the court erred in admitting hearsay testimony about self-serving statements made by plaintiff after the accident; and (2) that the court erred in refusing to discharge the jury because plaintiff's attorney by cross-examination of defendants' witnesses injected into the case the idea that an insurance company was interested in the defense. Plaintiff was employed by defendants to drive a truck at night over a 300-mile route in southwest Missouri for the purpose of transporting moving picture films between theatres. Plaintiff's brother-in-law, Bert Morton, went with him as a relief driver on the night of the accident. Morton began driving that night at Monett. Plaintiff sat beside him on the seat of the truck. Morton drove to Marionville on U.S. Highway 60 and thence, on State Highway 13, east for three miles to a point where the road made a sharp curve to the south. The truck ran off the road at a culvert near the beginning of this curve. State Highway 13 was paved with blacktop surface about 16 feet wide and had loose gravel on the shoulders. About 30 feet west of the culvert there was a road running north from the highway. Defendants' defense was that the cause of the accident was careless driving in a dense fog.

Plaintiff's account of this occurrence, given at the trial, was as follows:

"Just as he (Morton) topped the decline the front wheel started shimmying and he pushed on his brakes and it caused the car to start jerking and jumping and pulled us on the left side of the road and he released his brakes and when he applied his brakes again it pulled the car on the north side of the road before we reached this culvert and pulled us off the embankment down into the culvert. . . . I could see him pulling on the wheel and when he applied the brakes the second time it grabbed again; it was pulling to the left and he was pulling to the right and it pulled us off the...