Swain v. Oregon Motor Stages

• Decision Date: 04 October 1938
• Citation: 160 Or. 1,118 A.L.R. 1225,82 P.2d 1084
• Parties: SWAIN <I>v.</I> OREGON MOTOR STAGES
• Court: Oregon Supreme Court

160 Or. 1

82 P.2d 1084

118 A.L.R. 1225

SWAINv.

OREGON MOTOR STAGES

Supreme Court of Oregon.

Argued September 7, 1938.

Affirmed October 4, 1938.

Evidence — Admissions

1. A statute permitting admission of a declaration or act of another in the presence and within the observation of a party, and his conduct in relation thereto, permits admission of a third person's statement made in the presence of the adverse party if the adverse party possessed an opportunity and a motive to deny the statement if deemed incorrect.

Evidence — Admissions

2. Evidence that passenger or his wife, before leaving bus, after collision stated that bus driver was not at fault, was properly admitted in passenger's action against bus company, where passenger did not deny that he had so stated and had opportunity at time of accident of repudiating any statement made by wife and there was no proof that he did so.

Automobiles — Evidence — Admissions

3. In action for injuries sustained by bus passenger in collision with automobile at street intersection, an accident report, prepared by passenger immediately after the collision and before he left the bus, on a form furnished by the bus company, in which passenger stated that driver of automobile was to blame for the accident, was not improperly admitted.

Trial — Instructions — Negligence

4. In action against bus company for injuries sustained by passenger in collision with automobile at street intersection, instruction that, if accident was caused by the combined negligence of motorist and bus company, then passenger would be entitled to recover full compensation from the bus company, was not improperly refused in view of the evidence and other instructions.

                  Duty and liability of carrier of passengers for hire by
                automobile, note, 96 A.L.R. 727
                  22 C.J. Evidence, § 357
                

In Banc.

Appeal from Circuit Court, Marion County.

E.C. LATOURETTE, Judge.

Action by N.J. Swain against the Oregon Motor Stages for injuries sustained in collision between bus on which plaintiff was riding, and an automobile. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

W.C. Winslow, of Salem, for appellant.

Allan G. Carson, of Salem, and Donald K. Grant, of Portland (Carson & Carson, of Salem, and Maguire, Shields & Morrison, of Portland, on the brief), for respondents.

ROSSMAN, J.

This is an appeal by the plaintiff from a judgment entered upon the verdict of a jury in the defendant's favor. The complaint prayed for the recovery of damages which it alleged the plaintiff suffered November 4, 1936, when the defendant's motor bus, in which the plaintiff was riding as a passenger for hire, collided at the intersection of Berry street and Rural avenue, Salem, with an automobile driven by one Frank Weddle. The complaint averred, and the answer denied, that the bus was operated in a negligent manner. The plaintiff, his wife, one other passenger by the name of Mrs. Ethel Sundlie, and the operator of the bus were its only occupants at the time of the collision.

1, 2. The first assignment of error is based upon a ruling made during the defendant's cross-examination of the above-mentioned Mrs. Sundlie. After this witness had stated that she, the plaintiff and the latter's wife discussed the accident before leaving the bus, she was asked: "What did Mr. Swain, or Mrs. Swain in his (plaintiff's) presence and hearing, say to the best of your memory?" The defendant's objection, "I don't think that is admissible, what Mrs. Swain said in his presence," was overruled, but the witness declared that she did not understand the question. She was then asked, "Did they say anything as to the conduct of the driver of the bus?" and replied, "Yes, we were quite agreed that the bus driver had handled the situation very —" At this point the judge instructed the jury to disregard the answer. Defendant's counsel then asked the witness: "What was said by them, to the best of your recollection?" and met with the objection, "We object to the expression of any opinion of the witness as to whether the bus driver was doing what he should or not." The objection was overruled, but before the witness replied the question was restated as follows: "To the best of your memory, could you say what they did say?" The witness replied: "That it wasn't the bus driver's fault." This answer concluded the cross-examination.

The plaintiff cites no authorities in support of his contention that the witness's answer above quoted was inadmissible. His brief states: "We contend that a man cannot be bound by the declarations of his wife, even if made in his presence."

Section 9-226, Oregon Code 1930, provides:

"In conformity with the preceding provisions, evidence may be given on the trial, of the following facts:

* * *

3. A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto; * * *" The rule embraced by this section of our code deems admissible a third person's statement made in the presence of the adverse party if the latter possessed an opportunity and a motive to deny the statement if deemed incorrect. His silence under such circumstances affords the basis for an inference that he acquiesced in the statement. The rule is discussed in Wigmore on Evidence (2d Ed.), § 1071, and was applied in Willhite v. Freed, 137 Or. 1 (299 P. 691); Harris v. Hindman, 130 Or. 15 (278 P. 954); and Stowell v. Hall, 56 Or. 256 (108 P. 182).

In the present instance, the witness apparently was unable to state whether the plaintiff or his wife was the one who declared, "It wasn't the bus driver's fault." The entire course of the witness's testimony indicates that, possibly, the remarks of the plaintiff and his wife were so closely linked together that the quoted language was that of both. If this is true, the testimony was clearly admissible. Likewise, if the statement was the language of the plaintiff alone, it was admissible; but if the quoted words were spoken by the plaintiff's wife, his silence could justify a conclusion that he agreed with her views. It is clear that he had an opportunity and a motive to deny the statement if he deemed it untrue. We add that immediately after Mrs. Sundlie gave this testimony the plaintiff was recalled as a witness by his counsel, but made no effort whatever to deny that he was the one who made the quoted statement. Later, his wife, upon returning to the stand, was asked about the conversation, and testified: "I don't remember just what I said. I could have said it, I was quite excited, I really don't know." We are satisfied that no error is revealed by this contention.

3. The second assignment of error is based upon a ruling which received in evidence an accident report written by the plaintiff immediately after the collision and before he left the bus. The report is upon a printed form prepared for that purpose by the defendant, and was handed to the plaintiff by the driver of the bus. The form, after inquiring for the injured person's name and address, makes the following inquiries: "Were you injured?" "If so, what injuries did you sustain?" and "Who do you consider to blame for the accident?" After each question the plaintiff made his answers. After the three above quoted he wrote, respectively, "Yes." "Left knee bruised." and "Man driving Dodge coup, Lic. No. 246-102." This assignment of error concerns itself only with the answer last quoted.

In support of his contention, the plaintiff neither cites authorities nor mentions any specific rule of evidence which he claims was violated in the receipt of the document, unless a suggestion concerning the latter is contained in the following, quoted from his brief: "It is contended that a case of this kind should not be disposed of upon opinion evidence. This is a question of what happened. * * * We do not believe it rises to the height of an admission against interest. It is not a statement of fact. It is a mere conclusion and made at the time by an injured party." It will be observed that the plaintiff does not deny that he made the answers above quoted.

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