Standard Accident Ins. Co. v. Baker

• Decision Date: 23 September 1930
• Docket Number: Case Number: 19591
• Citation: 145 Okla. 100,1930 OK 428,291 P. 962
• Parties: STANDARD ACCIDENT INS. CO. v. BAKER.
• Court: Oklahoma Supreme Court

1930 OK 428

291 P. 962

145 Okla. 100

STANDARD ACCIDENT INS. CO. v. BAKER.

Case Number: 19591

Supreme Court of Oklahoma

Decided: September 23, 1930

Syllabus

¶0 1. Appeal and Error--Discretion of Court--Admissibility of Statements as Part of Res Gestae.

"The question of the admissibility of statements as a part of the res gestae is largely determined by the facts and circumstances of each case, and should in a great measure be left to the determination of the trial court." Marland Refining Co. v. Snider, 120 Okla. 116, 251 P. 989.

2. Same--Review--Sufficiency of Evidence in Law Case.

The appellate court will not in a law case reverse a cause because of the insufficiency of the evidence if there is any evidence which reasonably tends to support the verdict of the jury.

3. Same--Sufficiency of Instructions Considered as a Whole.

It is not necessary in each instruction given to the jury to give all the law of the case. The instructions must be read together, and when read together, if they harmonize and give a correct statement of the law to the jury, the cause, will not be reversed by reason of the insufficiency of one instruction, though the instruction assailed is not complete and comprehensive within itself.

Commissioners' Opinion, Division No. 2.

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.

Action by Lettie E. Baker against Standard Accident Insurance Company on an insurance policy for the accidental death of her husband, the assured. Judgment for the plaintiff. Defendant appeals. Affirmed.

E. C. Stanard, M. L. Hankins, and Leonard Carey, for plaintiff in error.

Saunders & Emerick and J. Knox Byrum, for defendant in error.

EAGLETON, C.

¶1 Lettie E. Baker brought suit against Standard Accident Insurance Company on insurance policy for the accidental death of her husband, the assured. The policy provided for protection "against loss resulting from bodily injuries effected directly, exclusively and independently of all other cause through external, violent and accidental means. * * *" The jury returned a verdict for the plaintiff on the policy for $ 2000, and judgment was entered thereon. Defendant appeals.

¶2 This case was before this court on the pleadings in Baker v. Standard Accident Ins. Co., 122 Okla. 43, 250 P. 787.

¶3 The insurance company urges three propositions for reversal:

(1) The erroneous admission of evidence, (2) the insufficiency of plaintiff's evidence to be submitted to the jury or to sustain the verdict, and (3) error in giving instructions and in refusing to give requested instruction. These propositions will be considered in order.

¶4 It is plaintiff's contention that assured was so mistreated and injured by hijackers that he died. It seems that he went off duty from the train on which he worked as a porter about midnight. He lived in a boxcar fixed up for him by the railroad near the station at Sayre. Within an hour thereafter the night car clerk heard a man on the platform in distress and on investigation found assured trying to hold himself up by a car on the track. He said between "gasps" "I have been hi-jacked." He was having great difficulty in breathing. Itschner, the car clerk, helped him into the station some 30 feet away. Woodcook, the conductor, saw them come in. Assured was placed on a cot. R. F. Collier, a deputy sheriff, was called from the jail. Ben Monroe, special agent for the Rock Island Railroad, was called from his home. The conductor quoted assured as saying, "The hi-jackers got me." Collier testified that he said he had been kicked around, and poked around by the hi-jackers with their guns, had been caused to undress and was left out in the alley, had fallen in the borrow pit; that he on investigation found footprints indicating such a situation and marks in the borrow pit indicating a man had fallen in there. Monroe testified that he heard assured make about the same statements. Assured died within an hour or two of the time it is claimed he was "hi-jacked." The question here presented is whether or not the statements made by assured are a part of the res gestae of the hi-jacking and as such admissible in evidence. Res gestae is a part of the things which is to be proved. It consists of those statements made rather by the event than about the event, those expressions which grow out of and characterize the event and not a narration of a past event or comment upon it. There is no "rule of thumb" by which such evidence is determined. Each event is governed by its own facts and circumstances. Were the statements spontaneous and instinctive, or were they premeditated and the result of the wariness of the speaker endeavoring to color the situation? The statements so admitted should be contemporaneous with the event, but time is not necessarily a controlling element or principle, it is not necessary that they be coincident in point of time.

"If they sprang out of the principal fact, tend to explain it, were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous and are admissible in evidence." 10 R. C. L. 978.

"The question of admissibility of statements as of the res gestae should, in a great measure, be left to the determination of the trial court." Smith v. Chicago, R. I. & P. Ry. Co., 42 Okla. 577, 142 P. 398; Marland Refining Co. v. Snider 120 Okla. 116, 251 P. 989.

¶5 This court has frequently approved the rule announced in Wigmore on Evidence, section 1750:

"There is a lamentable waste of time by Supreme Courts in here attempting either to create or to respect precedents. Instead of struggling weakly for the impossible, they should decisively insist that every case be treated upon its own circumstances. They should, if they are able, lift themselves sensibly to the even greater height of leaving the application of the principle absolutely to the determination of the trial court. Until such a beneficent result is reached, their lucubrations over the details of each case will continue to multiply the tedious reading of the profession."

¶6 In the instant case deceased was located in physical distress, he was breathing with difficulty, he said "I have been hi-jacked."

¶7 He was helped into the depot. The conductor there heard him say, "The hi-jackers got me." The special agent of the railroad and the sheriff were called. The deputy sheriff was at the jail some quarter of a mile from the station. He hastened to put his clothes on and rushed to the depot. Assured stated after he arrived how the hi-jackers had knocked and kicked him about and caused him to fall in the borrow pit nearby. The special agent testified he arrived within about 25 minutes after he was called and that he...