Truck Ins. Exchange v. Michling

• Decision Date: 16 January 1963
• Docket Number: No. A-9179,A-9179
• Citation: 364 S.W.2d 172
• Parties: TRUCK INSURANCE EXCHANGE, Petitioner, v. Martha Wofford MICHLING et al., Respondents.
• Court: Texas Supreme Court

Page 172

364 S.W.2d 172

TRUCK INSURANCE EXCHANGE, Petitioner, v. Martha Wofford MICHLING et al., Respondents.

No. A-9179.

Supreme Court of Texas.

Jan. 16, 1963.

Rehearing Denied Feb. 13, 1963.

Steinle & Aycock, Jourdanton, Gay & Meyers, Austin, for petitioner.

Lieck & Lieck, San Antonio, Ted Butler, Karnes City, J. Taylor Brite, Jourdanton, for respondents.

CULVER, Justice.

This suit was brought by Mrs. Martha Michling and other statutory beneficiaries to recover death benefits provided by the Texas Workmen's Compensation Act. Judgment was rendered in favor of these beneficiaries by the trial court and the Court of Civil Appeals has affirmed. 358 S.W.2d 697.

The only evidence offered to prove that the deceased, Hugo Michling, sustained an accidental injury in the scope of his employment was that given by his wife, Mrs. Michling. She related that her husband left home to go to his place of work about 30 miles away on the morning of April 12, 1958, and at that time was apparently in good health; that she saw him when he got out of his car on his return home about 3:30 that afternoon and that 'he sort of stumbled and caught himself and walked on up to the house and he said has head was hurting him terribly; he was batting his eyes and was very pale.' She quoted him as saying that 'he had hit his head on the bulldozer, the iron bar across the seat. It slipped off the hill and he hit his head.' She also testified that he said 'his head hurt so bad that he couldn't to anything else but had to put up the bulldozer and come home.' Michling died at the hospital on May 11, 1958.

This case turns on the question of whether or not the foregoing testimony given by Mrs. Michling is admissible under the rule which admits res gestae utterances as an exception to the hearsay rule.

In the first place, while the workmen's compensation law is to be liberally construed and administered in favor of the employee, this does not mean that the rules of evidence generally in the workmen's compensation case are to be applied differently than they would be in cases arising under common law. Decisions of other jurisdictions support this view and we have found no Texas authorities to the contrary. Williams v. Jahncke Service, 217 La. 1078, 48 So.2d 93 (1950); Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717 (1929); Mason & Dixon lines, Inc. v. Gregory, 206 Tenn. 525, 334 S.W.2d 939 (1960). ¹ We therefore will dicuss the admissibility of Mrs. Michling's testimony based on the foregoing assumption.

This then brings us to the question of what are the general rules governing the admission of hearsay statements as res gestae. Wigmore in his work on Evidence, 3rd Edition, § 1747, has the following to say:

'This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external stock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts. * * *.'

In § 1750 he sets out the requirements as follows:

'(a) Nature of the Occasion. There must be some occurrence, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. * * *.'

'(b) Time of the Utterance. The utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. This limitation is in practice the subject of most of the rulings.

'It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. * * *

'Furthermore, there can be no definite and fixed limit of time. Each case must depend upon its own circumstances.

'(c) Subject of the Utterance. The utterance must relate to the circumstances of the occurrence preceding it. * * *.'

The very unusual circumstance in this case is that the hearsay statement of Mrs. Michling is the only evidence of the event which gives rise to the statement. A hearsay statement, as res gestae, is admitted as an exception to the hearsay rule because it is made under circumstances which raise a reasonable presumption that it is the spontaneous utterance of thought created by or springing out of the occurrence itself and, so to speak, becomes a part of the occurrence. But in this case the only evidence of the occurrence is the hearsay statement. Thus the Court of Civil Appeals is conceding credit to a narrative to prove the very circumstances from which it is said to derive its credit. Its trustworthiness, as to the happening of an accident, is presumed from the influence of the accident which its trustworthiness is taken to prove. Thus this proof, to use a trite expression, is attempting to lift itself by its own bootstraps. There is not any independent proof that Hugo Michling suffered any injury at approximately the time and place alleged. There appeared to be no iron bar across the bulldozer seat. There was no testimony from any other source that he was present at his place of employment on the day of the alleged injury. The time records of his employer indicated that Michling worked Friday, April 11th, until noon and that he did not work on the 12th. The operating records kept by his employer indicated that none of the tractors owned by the employer were in operation on that date.

The medical testimony is that Michling died of a cerebral hemorrhage resulting from a congenital weakness in one of the blood vessels in the brain and that such a hemorrhage may be precipitated by a cough, a strain, a blow to the head or may occur spontaneously. The fact that Michling died from a cerebral hemorrhage does not necessarily indicate any accidental injury. There was no visible mark of any injury upon his head.

It is generally held that in passing upon the admissibility of a statement offered as a part of the res gestate the trial court has considerable discretion. Pilkenton v. Gulf, C. & S. F. Ry. Co., 70 Tex. 226, 7 S.W. 805 (1888); Southern Surety Co. v. Weaver, 273 S.W. 838 (Tex.Com.App.1925); Skillern & Sons, Inc. v. Rosen, Tex., 359 S.W.2d 298.

In Pacific Mutual Life Ins. Co. of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709 (1944) we held that whether or not a statement is admissible as res gestae is a question of law, which an appellate court has the same power to determine as it has any other law question. We do not construe that holding as necessarily running counter to the foregoing proposition. In Schlakzug there was clearly no indication that the statement attributed to the deceased was made while laboring under stress or excitement produced by a sudden or startling event. At any rate the discretion of the trial court does not extend to the admission of the testimony here for the reason that there is no proof otherwise of the occurrence of which the statement is asserted to be a part.

As said by Professor Wigmore, for a statement to come within the doctrine of res gestae it must be made as a result of some startling occurrence which renders the utterance spontaneous and unreflecting but that is not to say that the startling occurrence itself may be proven by the statement alone. To paraphrase what is said in Schlakzug, supra, if this employee had not died and it became material to prove how the accidental injury was received this statement given here would not be admissible as res gestae. The decision as to whether the statement was res gestae does not depend on the after-effect of the employee's death. It was either res gestae or not at the time it was uttered.

For declarations to be admissible in evidence as part of the res gestae they must be made in connection with an act proven. In other words there must be evidence of an act itself...