Wash.-va. Rt. Co v. Deahl

• Decision Date: 17 September 1919
• Citation: 100 S.E. 840
• Court: Virginia Supreme Court
• Parties: WASHINGTON-VIRGINIA RT. CO. v. DEAHL.

100 S.E. 840

WASHINGTON-VIRGINIA RT. CO.

v.DEAHL.

Supreme Court of Appeals of Virginia.

Sept. 17, 1919.

Error to Circuit Court, Alexandria County.

Action by Miss Anna E. Deahl against the Washington-Virginia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Moore, Keith, McCandlish & Hall and Jno. S. Barbour, all of Fairfax, for plaintiff in error.

Henry I. Quinn, of Washington, D. C, and Leo P. Harlow and J. K. M. Norton, both of Alexandria, for defendant in error.

KELLY, J. An electric railway car, owned and operated by the Washington-Virginia Railway Company collided with a motortruck owned and operated by the Washington Brick & Terra Cotta Company at a point where a private road leading from the latter company's brick plant crosses the tracks of the railway company. Miss Anna E. Deahl was a passenger on the electric car and claimed that as a result of the collision she sustained physical injuries for which she brought an action against both compa nies. There was a verdict and judgment in her favor against the railway company for the sum of $5,000, and to that judgment this writ of error was awarded.

1. The plaintiff as a witness in her own behalf was permitted, over the objection of the railway company, to make the following statement:

"After I got home from that accident the claim agent, Mr. Travers, came and he said the controller broke on the car and that was why the motorman could not stop the car."

The chief objection urged against this statement as evidence is that it violates the rule against hearsay. The soundness of this objection depends upon the relationship which the declarant bore to the defendant, and the capacity in which he was acting at the time he made the statement. He was not present when the accident occurred and only knew of the circumstances attending it by information obtained from others. If he was not acting in a representative capacity and within the scope of his agency, then his statement was pure hearsay and not admissible. If, however, the statement related to a matter within the sphere of his authority, and was made in the course of an investigation or negotiation concerning that matter, then, regardless of how he derived his knowledge, he spoke as and for his principal, and his statement was admissible.

It appears that Travers was the claim agent of the defendant company and had called on Miss Deahl to see her in regard to the accident itself and the manner in which she was hurt. The evidence does not show just what his duties were, but the general scope and purpose of a railway claim agent's business are matters of common knowledge. There can be no doubt that he called to see Miss Deahl in connection with an investigation of the accident and a determination of the company's attitude and probable liability as to any claim she might make. It is true that he had nothing to do with the operation of the car, and was not in any way a participant in the occurrence; but the investigation and settlement of the plaintiff's claim against the company for personal injuries necessarily involved the acquisition on his part of accurate information and knowledge as to the cause of the action. Such information and knowledge were peculiarly essential to his branch of the company's business, and his declarations made in regard thereto in the course of his negotiations with the plaintiff fall easily and plainly within the rule permitting proof of declarations made by agents within the realm of their agency, and during the transaction of business in which they are employed. Lynchburg Telephone Co. v. Booker, 103 Va. 594, 604, 50 S. E. 148, and cases cited.

It is further urged that the statementin question ought not to have been admitted because there was no allegation of negligence in the declaration sufficiently broad to embrace a defective condition of the controller. The charge of negligence in the declaration is that—

The company "did not use due and proper care that the plaintiff should be safely and securely carried by the said train on the said journey, but wholly neglected to do so and ran its said train carelessly and negligently across and over the said roadway and without having the said train under proper control * * * and without a timely application of the brakes."

It may be rather remote to say that proof of the fact that the controller broke tends to prove these allegations as to proper control of the car and timely application of the brakes, but we do not think the objection here relied upon ought to be seriously regarded in this court. The objection was made in the court below, and it would perhaps have been more regular if the court had required the plaintiff to amend the declaration. If this had been done, however, the motorman who had charge of the car and who was alleged to have made the statement was present, and it would have been proper to proceed at once with the trial. No continuance was asked for on the ground of surprise.

2. The court permitted, over the objection of the railway company, the following testimony:

(a) By the witness Joshua Hardy that he was at the scene of the accident immediately after the collision and heard the railway company's motorman, just after getting out of his car, say to the driver of the truck:

"This is the third time you have run across me like this, and I have got you this morning."

(b) By Hugh Lion that he was on the running board of the truck when the collision occurred, and heard the above-mentioned declaration made just as the motorman stepped from the car.

(c) And by the witness Cornelius Lion, the driver of the truck and the man to whom the motorman was speaking, that the declaration was made under the circumstances described by the following extract from his testimony:

"Q. Did you see the motorman when he got off his car?

"A. Yes, sir. I was standing right there at the time. I got down and was standing there when he jumped out. I was out there first though, and he walked up to me and asked me—

"Q. (Interposing.) Did he walk straight from the motor when he got out? "A. Yes, sir.

"Q. He walked straight from the motor when he got out?

"A. Yes, sir. I was the first one he spoke to. "Q. What did he say?

"A. He asked me why did I cross, and I asked him why did not he blow, and I told him that I did not see him, and he said he did blow and I contradicted him, and he said that was the third time I had tried that and that time he got me."

None of the witnesses undertook to measure in seconds or minutes how much time elapsed between the collision and the conversation; but we think it perfectly clear that the interval was very brief, and that the conversation not only followed almost immediately upon the collision, but that it stood in immediate causal relation thereto. It followed under the immediate spur of the main fact, and bears no evidence of reflection or deliberation on the part of the actors. It appears to have been a spontaneous, undesigned, and illustrative incident and part of the litigated act. These are the tests of admissibility under the res gestae rule. The rule itself is incapable of any precise definition. Its application to a particular case depends upon the circumstances of that case, and necessarily rests at last in every instance upon the discretion and judgment of the trial court. Such discretion and judgment, of course, may be the subject of review; but in doubtful cases there ought to be and is a presumption in favor of the action of the court below.

It is not always easy to apply the rule correctly, because not always easy to say whether the statement or declaration in question is merely a recital of a past occurrence or is a verbal act forming a part of the occurrence itself. We have deemed sufficient in the present case to state generally the essential characteristics of the rule above, and to concur in the holding of the trial court that the evidence under consideration was properly admitted.

A case which perhaps goes as far as any Virginia case has gone in excluding declarations of this character is Blue Ridge Light Co. v. Price, 108 Va. 652, 62 S. E. 938, wherein this court held that the statements of a motorman made just after the accident to the plaintiff, Miss Price, were not admissible. There was very little discussion of the res gestae rule in that case, the opinion being directed mainly to the proposition that the motorman could not bind the defendant company on the score of agency. We have no difficulty in reaching the same conclusion in this case under the agency rule, and so far as the res gestæ doctrine is involved we are of opinion that the case in judgment is fairly distinguishable in its facts and circumstances from the case cited. Miss Price, who seems to have been knocked down by a car which she was attempting to board, had gotten up after the accident and had gone into the car, and at least an appreciable time had elapsed between the accident and the conversation which was excluded. Moreover, the statement of the motorman in that case was dissimilar in its character and inits general setting from the excited declarations of the motorman in the case at bar.

Another case cited for the defendant is Vicksburg & Meridian R. Co. v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299. The opinion in that case, by Mr. Justice Harlan, shows that the statement of the engineer which was held inadmissible was made from 10 to 30 minutes after the accident; and even in that case four members of the court— Chief Justice Waite, and Justice Miller, Field, and Blatchford —were of opinion that the engineer's statement ought to have been admitted as part of the res gestæ.

The general nature of the res gestæ rule is so well understood, and has been illustrated by so many adjudicated cases, that we do not feel warranted in prolonging the discussion of this branch of the case. The pertinent authorities are comprehensively collected under the title "Res Gestæ" in 11 Mich. Dig. 907,...