Stratton v. Sioux Falls Traction System
| Decision Date | 03 August 1929 |
| Docket Number | 6452. [*] |
| Parties | STRATTON v. SIOUX FALLS TRACTION SYSTEM. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.
Action by Herbert M. Stratton, as administrator of the estate of Clarence Stratton, deceased, for and on behalf of the Continental Casualty Company and the decedent's father against the Sioux Falls Traction System. From a judgment adverse to defendant, and an order denying a new trial, it appeals. Reversed.
Boyce Warren & Fairbank, of Sioux Falls, for appellant.
Cherry Davenport & Braithwaite and Parliman & Parliman, all of Sioux Falls, for respondent.
This case was before this court on an appeal by plaintiff in 1925. The opinion is reported in 49 S.D. 113, 206 N.W. 466. The judgment in favor of defendant upon the first trial was reversed because of the admission of improper evidence held to be prejudicial to plaintiff. The case was again tried, and now comes before this court upon an appeal by defendant from a judgment and an order denying a new trial.
The action is brought under article 1 of chapter 7, Rev. Code 1919, sections 2929-2932, inclusive, by the administrator of the estate of Clarence Stratton, deceased, to recover of defendant damages for negligently causing the death of said Clarence Stratton. Clarence Stratton was instantly killed while driving a truck south on Minnesota avenue at the intersection of the said avenue with Brookings street in the city of Sioux Falls on the 15th of November, 1920, in a collision with a street car belonging to and operated by defendant. The street car was running east on Brookings street, and collided with the truck as it attempted to cross the tracks of defendant company on Minnesota avenue. Clarence Straton left no wife or child, but is survived by his father and his stepmother. At the time he was killed he was an employee of the Interstate Fruit Company, of Sioux Falls.
After the accident the father and stepmother, Herbert M. Stratton and Nettie Stratton, brought an action under section 9458, Rev. Code 1919 (), against the Interstate Fruit Company and the Continental Casualty Company, and recovered a judgment for $1,650. On the second trial, which is now before the court, the action was prosecuted by the administrator, for and on behalf of the Continental Casualty Company and the father of Clarence Stratton. The Continental Casualty Company is interested in recovering the amount paid by it under the Workmen's Compensation Act, and Stratton, the father, is interested in any excess which may be recovered over and above that due the Continental Casualty Company.
When the case was called, and before the trial commenced, plaintiff moved the trial court to forbid defendant making reference to the Continental Company's interest in the action. This was objected to by defendant, and exceptions were taken to the ruling of the court sustaining the motion. The first assignment of error pertains to this order.
While the proceeding seems to be novel and unusual, in that the real parties in interest are not permitted to be mentioned, yet we are unable to see wherein defendant was prejudiced. The insurance company is not the sole beneficiary of the administrator's suit. If it were, we might feel differently. The other beneficiary, Stratton, was not only known, but shown to be needy and dependent upon deceased for support. A jury would not be likely to be influenced by sympathy for an insurance company, where it might be for a needy individual; but as Stratton's recovery of any amount depends upon a verdict for a larger amount than is due the company, keeping the company in the background was as likely to be favorable to defendant as to be prejudicial. We think the ruling erroneous, but not prejudicial.
The other questions presented by the assignments pertain to the sufficiency of the evidence to support the verdict and to the admission and rejection of certain evidence. The negligence of defendant, which plaintiff relies upon as entitling him to recover, consists in not stopping the street car in time to avoid the accident. The failure to stop is attributed to insufficient brakes or a failure to timely and properly apply them. It is not contended that the motorman did not keep a proper lookout, or that he was running too fast, or failed to sound a warning, or was otherwise negligent in operating the street car. The failure to stop the car with the brakes is the negligence relied upon to support the action. If there is no evidence that the brakes were defective or not properly used, then there is no proof of negligence to support the verdict. As a part of the evidence to prove that the brakes were defective, plaintiff introduced evidence of a statement made by the motorman, about 15 minutes after the collision, to the effect that, if his brakes had been working, he could have stopped in time to avoid the accident. This evidence was objected to as purely hearsay, not impeachment or cross-examination, and not a part of the res gestae. The court overruled the objection and that ruling is assigned as error.
There was no other evidence offered by plaintiff that the brakes were defective, except the testimony of one woman, who said that she rode upon the car involved in the accident the day following the accident, and that at that time the brakes were not working properly. At the close of the plaintiff's case in chief, defendant moved for a directed verdict on the ground that the evidence was insufficient. The motion was denied. Thereafter appellant proceeded with its defense and the motorman testified. He denied saying that, if his brakes had been working, he could have stopped in time to avoid the accident; but he also gave his version of what happened at the time of the accident, and told when he first applied the brakes, the speed of his car when and where they were first applied, the distance the car ran after they were applied, how fast the car was moving when is struck the truck, and the effect of the collision; so the jury then had a considerable number of facts from which it might draw conclusions as to the efficiency of the brakes. Under the proof as then developed, there was sufficient evidence to go to the jury on the question of negligence of the street car company. At the close of all the testimony, the motion for directed verdict was renewed, and denied. It is apparent the denial of the motion was proper, if all the testimony on the question of appellant's negligence was competent. That pertaining to the motorman's statements to the effect that his brakes did not work properly is claimed by appellant to be hearsay and therefore incompetent. Respondent contends it was competent as res gestae.
There is no contention that it was competent, unless res gestae. The statement was made about 15 minutes after the collision, and after the motorman had left the scene of the accident and gone to a telephone, where he talked with some one most disclosed by the record.
This is so obviously not admissible as res gestae that an extended discussion of the contentions of counsel seem unnecessary. There is a class of a declarations admissible as res gestae which are mere verbal acts. There is no more reason for excluding a scream, an exclamation, or a whole sentence, when essentially a part of the occurrence, than to exclude any other noise. No one would claim the motorman's statement falls in that class. There is another class, where a declaration is not a verbal act, but is, nevertheless, an incident forming a part of, connected with, and growing out of the transaction that is the subject of inquiry, which illustrates, elucidates, qualifies, or characterizes the act, and forms a part of the one continuous transaction. Such declarations are hearsay, but are admissible as an exception to the hearsay rule, under the doctrine of res gestae. They must be contemporaneous with the principal event, though not necessarily coincident in point of time.
Two old California cases fairly illustrate the principle. Innis v. Steamer Senator, 1 Cal. 459, 54 Am. Dec. 305 and Gerke v. Cal. Steam Nav. Co....
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