Weshalek v. Weshalek

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: ALLEN M. STEARNE; MUSMANNO
• Citation: 379 Pa. 544,109 A.2d 302
• Parties: Stephen A. WESHALEK and Catherine Weshalek, husband and wife, Stephen A. Weshalek, father and natural guardian of Stephen F. Weshalek, a monor, and Stephen A. Weshalek and Catherine M. Weshalek, Trustees ad lltem of Rose Marle Weshalek and Mildred Catherine Weshalek, minors, deceased, Walter Weshalek and Helen Weshalek, husband and wife, and Walter Weshalek, father and natural guardian of Beverly Weshalek, a minor, John Noga and Catherine Noga, husband and wife, and John Noga, father and natural guardian of Dorothy Noga, a minor, v. Frank WESHALEK, Administrator d/b/n of the Estate of Mildred Oravecz, deceased, J. H. Sprecher, Inc., a corporation, and John Krall, Jointly and severally. Appeal of Frank WESHALEK, Administrator d/b/n of the Estate of Mildred Oravecz, Deceased.
• Decision Date: 22 November 1954

Page 302

109 A.2d 302

379 Pa. 544

Stephen A. WESHALEK and Catherine Weshalek, husband and

wife, Stephen A. Weshalek, father and natural guardian of

Stephen F. Weshalek, a monor, and Stephen A. Weshalek and

Catherine M. Weshalek, Trustees ad lltem of Rose Marle

Weshalek and Mildred Catherine Weshalek, minors, deceased,

Walter Weshalek and Helen Weshalek, husband and wife, and

Walter Weshalek, father and natural guardian of Beverly

Weshalek, a minor, John Noga and Catherine Noga, husband and

wife, and John Noga, father and natural guardian of Dorothy

Noga, a minor, v. Frank WESHALEK, Administrator d/b/n of the Estate of Mildred

Oravecz, deceased, J. H. Sprecher, Inc., a

corporation, and John Krall, Jointly and

severally.

Appeal of Frank WESHALEK, Administrator d/b/n of the Estate

of Mildred Oravecz, Deceased.

Supreme Court of Pennsylvania.

Nov. 22, 1954.

Brandon, Millar, Rockenstein & MacFarlane Farlane and J. Campbell Brandon, Butler, for appellant.

Samuel R. DiFrancesco, Johnstown, George P. Kiester, Kiester, Coulter & Gilchrist, Butler, for appellees.

ALLEN M. STEARNE, Justice.

The appeal is from a judgment for plaintiff in an action in trespass growing out of an automobile, accident involving collisions of three motor vehicles. Three deaths resulted and serious injuries were sustained by the remaining occupants. Six actions were consolidated for the purpose of the present appeal. Counsel stipulated that the decision in this case should be binding as to all the other judgments. The determinative question is whether or not a statement, made by one of the defendants to a state policeman after the accident, was properly admitted as part of the res gestae.

The collision involved two tractor and trailer trucks and an automobile. One tractor and trailer was passing another tractor and trailer while proceeding in the same direction down a slight grade westwardly on Route 422, a three lane highway, about three miles west of the City of Butler. Approaching in the opposite direction was an automobile in which were three adults and five children. The evidence of how the accident happened is circumstantial with the exception of the alleged res gestae statement made by the driver of one of the trucks. The surviving parties were rendered incompetent to testify under the Act of May 23, 1887, P.L. 158, sec. 5, 28 P.S. § 322. It was alleged that the automobile veered to its left to such an extent that it first collided with the passing truck and then struck the truck being passed. The automobile was found in the center lane of the three lane highway, the passign truck was found against the guard rail on the opposite or its wrong side of the road. The other truck which was being passed was found on its side down an embankment on the opposite or its left side of the road. The automobile and the passing truck caught fire and burned. Killed in the accident were the driver of the automobile and two of the children. The remaining occupants of the car were all injured and were the present plaintiffs in this action with the personal representatives of the two deceased children. The parties defendant are the administrator d.b.n. of the estate of the driver of the automobile and J. H. Sprecher, Inc. and John Krall, the owner and driver, respectively, of the tractor and trailer which was doing the passing. The jury rendered a verdict against the administrator d.b.n. of the estate of the driver of the automobile and exonerated J. H. Sprecher, Inc. and John Krall, the owner and driver of the truck above mentioned. Claiming error in the admission at the trial of a statement made by John Krall, defendant so exonerated, the administrator d.b.n. of the deceased driver of the automobile appeals.

William J. Steiner, a state police officer, arrived at the scene of the accident approximately twenty-five minutes after it had occurred. In his investigation he noted Krall sitting on the guard rail by the side of the road. Steiner testified:

'He was in very bad shape. He didn't have any clothes on, outside of a pair of trousers, and he was holding them in front of him. His face was severely burned, his hair all burned off, with the exception of a quarter of an inch remaining, and it was all signed.'

The officer further testified that Krall was not able to see very well, his eyes were swollen and his eyelashes were burned off; that he placed Krall in the police car to take him to the hospital, that he tried to place a blanket over him, but found it impossible so to do because 'the pain was too terrific'; that on the way to the hospital he kept asking Krall '* * * questions, and he would answer as best he could. I asked him what happened, and he tried to explain.' Over the objection of the defendants' counsel the police officer was allowed to testify to the following statement:

'A. I asked him what happened, and he said he was passing a truck, going down a hill, and he was out in the center lane, passing this truck, and this car coming from the opposite direction toward him swerved to the left of the road, and then back over to her right; which would be to the left as you are traveling toward Butler, and then back to the right as you are traveling toward Butler. When she swerved back to her right it hit the truck at the right side.

'Q. Was there anything else he said about the accident? A. He said that was all he could remember.'

To have admitted this testimony was error. It did not measure up to the substantive requirements of a spontaneous utterance deemed by the law to have sufficient probative force. In the absence of spontaneity or instinctive naturalness such evidence lacks credibility. In Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784, this Court defines what constitutes a res gestae declaration. It is:

'* * * a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties. In a res gestae declaration the exciting event speaks through the impulsive words of a participant or onlooker. It is in a psychological sense a part of the act itself. The apparent condition of the declarant's mind when the declaration is made is the test of the latter's admissibility as a part of the res gestae. To make the declaration admissible the state of the declarant's mind as induced by the shock of the occurrence must be such as to integrate his spontaneous declaration exclusively with the occurrence itself.'

This rule has been cited with approval as late as Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171. The fact that the utterance is an answer to a question does not make it any less spontaneous or admissible. Powe v. Pittsburgh Railways Co., 303 Pa. 533, 537, 154 A. 795; Commonwealth v. Rumage, 359 Pa. 483, 59 A.2d 65; Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760. Nor is such a statement inadmissible, as remote, merely because of a lapse of time. Each case must depend on its own facts. Commonwealth v. Werntz, 161 Pa. 591, 29 A. 272; Commonwealth v. Stallone, 281 Pa. 41, 45, 126 A. 56; Hansky v. Jones & Laughlin Steel Corporation, 149 Pa.Super. 605, 27 A.2d 789.

The test of admissibility of a declaration as res gestce is whether or not the circumstances were such as to preclude premeditation and consideration. Mr. Chief Justice Horace Stern, speaking for the Court, said in Haas v. Kasnot, supra, 371 Pa. at page 583, 92 A.2d at page 173:

'* * * In short, they [the declarations] must be, not the narration or attempted explanation of a past occurrence, but in the nature of an emotional, impulsive outburst made under the spell of excitement or shock caused by the occurrence to which they relate and uttered before the processes of the intellect have had opportunity to come into play. * * *'

Thus tested, it is clear that the statement by Krall to the state police officer should not have been admitted into evidence under the guise of being part of the res gestae. Krall, injured and suffering as he was, nevertheless, had sufficient opportunity to reflect on the happening of the accident. The statement was not occasioned by any emotional or impulsive outburst, but consisted of a considered narration of his idea as to how the accident happened. Such a statement given under such circumstances cannot be considered to have been due to excitement or shock following the accident. The account was obviously elicited by prodding, the antithesis of impulsiveness.

The order refusing judgment for defendant n.o.v. is affirmed. The judgment for plaintiff is...