Va. Electric & Power Co v. Decatur

• Decision Date: 12 June 1939
• Citation: 4 S.E.2d 294
• Court: Virginia Supreme Court
• Parties: VIRGINIA ELECTRIC & POWER CO. v. DECATUR.

4 S.E.2d 294

VIRGINIA ELECTRIC & POWER CO.

v.DECATUR.

Supreme Court of Appeals of Virginia.

June 12, 1939.

Dissenting opinion. For majority opinion, see 3 S.E.2d 172.

HUDGINS, Justice (dissenting).

Two juries have passed upon the material evidence in this case. Each jury returned a verdict for plaintiff.

It appears that C. D. Smith, plaintiff's decedent, made two inconsistent statements as to who was driving the automobile in which he was riding at the time he received his fatal injuries. Defendant claims that on the day of the accident Smith informed policeman Houston that he was driving the car. Policeman Nowitzky testified that some two days after the accident Smith told him Sears was driving the car. On the first trial the court admitted in evidence both of the declarations claimed to have been made by Smith, but later it sustained a motion to set aside the first verdict on the ground that Smith's statement to Nowitzky was a self-serving declaration and not admissible.

The proceedings of the trial now under review show that the trial court rejected or excluded from consideration of the jury both declarations, the one made to Nowitzky on the ground that it was self-serving, and the one made to Houston on the ground that Smith was not in full possession of his mental faculties at the time that it is claimed he made the statement to Houston. I do not think that the trial court committed reversible error in either ruling.

The uncontradicted evidence clearly shows that Smith was injured at 9:20 a. m. At ten o'clock he was admitted to the hospital. One doctor for plaintiff, and one doctor for defendant, found that he was suffering from a fracture of both thigh bones, terrible bruises and lacerations, a broken nose, a fractured skull and concussion of the brain. Both of these doctors testified that he was semi-conscious and not in a mental condition to give intelligent answers to questions. Nowitzky, a witness called by defendant, testified that he tried to talk to Smith before Smith was taken out of the operating room and found him unconscious. "If he was not unconscious, I could not get much out of him at the time I talked to him that day." He was in serious pain and groaning. As Nowitzky left the hospital he met officer Houston going in. Houston does not state whether he attempted to talk to Smith while he was still in the operating room or after he had been removed. At any rate, his interview with Smith took place before noon on the day of the accident and within a few minutes after Nowitzky had seen him. Houston does not attempt to quote the declaration he claims Smith made to him. His exact testimony was, "I talked to Smith. He was severely injured and I had some difficulty in talking to him as I had to ask a lot of questions. Of course he answered. I ascertained from him that he was driving the car."

A conflict in the evidence on the question of whether Smith was rational and in possession of his mental faculties at the time would present a jury question, but it is to be noted that not a single witness testified that Smith, at the time Houston obtained the information from him, was in possession of his mental faculties. The admissibility of this testimony was peculiarly a question addressed to the sound discretion of the trial court. We should not disturb its ruling on it, unless it is clearly shown that there has been an abuse of that discretion.

Under the circumstances, Smith, himself, would not have been a competent witness in any court. "It is too clear to call for discussion that liberty or property rights should not depend upon the testimony of those who are so wanting in understanding that they cannot remember or cannot form any conception of right and wrong." Jones on Evid., 2d Ed., vol. 5, page 3947.

In Coleman v. Commonwealth, 25 Grat. 865, 66 Va. 865, 874, 18 Am.Rep. 711, Judge Bouldin, speaking for the court, said:

"There can be no doubt, that the rule laid down by Peake in his work on Evidence, and approved by the Court of Errors of New York in the case of Hartford v. Palmer, 16 Johns. 143, is sound and reasonable, and is one, as said by the court in that case, 'which cannot fail to command the respect of all mankind;' to wit, 'that all persons who are examined as witnesses must be fully possessed of their understanding; that is, such understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong; that, therefore, idiots and lunatics, whilst under the influence of their malady, not possessing their share of understanding, are excluded.'

"* * * If at the time of his examination he has this share of understanding, he is competent. That is the test of competency, and of such competency the court is the judge; whilst the weight of testimony--the credit to be attached to it--is left to the jury."

In State v. Berberick, 38 Mont. 423, 100 P. 209, 16 Ann.Cas. 1077, the question was whether or not a confession made by a prisoner who was accused of murder was admissible. Counsel for the accused objected to the admission of...