Wren v. St. Louis Public Service Co.

• Decision Date: 14 March 1960
• Docket Number: No. 47394,No. 1,47394,1
• Citation: Wren v. St. Louis Public Service Co., 333 S.W.2d 92 (Mo. 1960)
• Parties: Charles Oliff WREN, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 92

333 S.W.2d 92

Charles Oliff WREN, Respondent, v.ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 47394.

Supreme Court of Missouri, Division No. 1.

March 14, 1960.

Frank B. Green, St. Louis, for appellant.

Donald L. Bland, Clayton, for respondent.

HOLMAN, Commissioner.

On the afternoon of March 7, 1956, plaintiff, Charles Wren, sustained certain personal injuries when the truck he was driving was struck from the rear by one of defendant's buses.In this action for damages he obtained a verdict in the sum of $10,000.Defendant has appealed from the ensuing judgment and here contends (1) that the court erred in overruling its motion for a directed verdict because the only evidence to support the submission was the erroneously admitted hearsay statements alleged to have been made by defendant's driver following the collision and (2) that the court erred in refusing to permit defendant to show to the jury a motion picture taken of plaintiff, while working, which would have contradicted and impeached plaintiff's testimony relating to his physical disability.

Plaintiff was employed as a truck driver in St. Louis, Missouri, and on the occasion in question was engaged in making a delivery for his employer.He was driving north on Euclid Avenue and his truck was the last vehicle in a line of cars which would move and stop intermittently when the lead car would stop in obedience to the boulevard stop sign located at Laclede Avenue, the next intersection.While plaintiff's truck was stopped in that line of traffic it was struck from the rear by the front end of one of defendant's buses.The truck was equipped with a hydraulic tail gate which was operated as a 'lift' in loading and unloading the truck.At the time of the instant occurrence the tail gate was down (on a level with the truck bed) and extended out beyond the rear of the bed for approximately three feet.When the bus struck the tail gate extension the front end of the bus was pushed in for a distance of several inches and the headlights were knocked out of their position in the body of the bus.

The collision caused plaintiff to be 'thrown around in the cab' of the truck.He immediately got out of the left door of the cab and walked around the front of the truck and back to the point of collision where he observed the damage and then proceeded to the door of the bus.The bus driver was still seated at the steering wheel.He opened the bus door and plaintiff asked him, 'What happened?'Defendant objected to the witness relating any statement made by the bus driver on the ground that such was hearsay and not within the res gestae.Upon further inquiry plaintiff stated that his conversation with the bus driver occurred approximately three or four minutes after the impact.The objection was overruled and plaintiff stated that the driver said 'that the brakes on the bus failed, and that is what caused him to hit the back end of the vehicle.'Within 'five or ten minutes' after the collision a police car arrived and the officers made an investigation, including an interview with the bus driver, which, because it had started to snow, was conducted in a nearby garage.Over the objection of defendant one of the officers, Eugene Kirk, testified that the bus driver said 'his brakes wouldn't hold.'There was evidence that plaintiff received a whiplash injury to his neck and that the use of his right hand and right arm had been impaired.

We will first consider the contention that the court erred in ruling that the statements of the bus driver were admissible as a part of the res gestae.In that connection it should be noted that plaintiff's case was submitted to the jury upon the hypothesization that 'defendant had failed to provide its motor bus with adequate brakes kept in good working order, and that in so failing, defendant was negligent * * *.'There was no evidence concerning the brakes on the bus except the foregoing statements of the bus driver.It is therefore apparent that if said statements were not admissible the plaintiff failed to make a submissible case upon the theory of negligence which plaintiff elected to submit.

In approaching the question as to the admissibility of statements as a part of the res gestae, 'the utterance should always be regarded as presumably inadmissible.This follows from the rule against hearsay.If the utterance is admissible it is as an exception to that rule.As this exception is based upon the sanction of a post accident tension, that sanction must be affirmatively shown.'Annotation163 A.L.R. 15, 92.The burden rests upon the party offering the declaration to show facts which would warrant its admission as a part of the res gestae.Woods v. Southern Ry. Co., Mo.Sup., 73 S.W.2d 374.

The applicable general rule is well stated in 20 Am.Jur., Evidence, Sec. 662, p. 553, as follows: 'Res gestae may broadly be defined as matter incidental to the main fact and explanatory thereof and may include acts and words which are so closely connected therewith as to constitute a part of the transaction; and such acts and words must be spontaneous and so related to the occurrence in question as reasonably to appear to be evoked and prompted thereby.Stated differently, the term 'res gestae' comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of their content.Statements which perform to these requirements and which in some way elucidate, qualify, or characterize the act in question are admissible in evidence as a distinct and separate exception to the hearsay rule.'In discussing the res gestae rule we have recently said: "The essential test of this class of statements is spontaneity', and in determining whether the statement is admissible under this rule 'the true test is neither the time nor the place of the statement but whether [under the circumstances] it is a spontaneous statement produced by the event itself.'Sconce v. Jones, 343 Mo. 362, 121 S.W.2d , 778, 781.'Roush v. Alkire Truck Lines, Mo.Sup., 299 S.W.2d 518, 522.For other discussions of the rule and its application to various factual situations seeMeyers v. Smith, Mo.Sup., 300 S.W.2d 474;Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575;Rosser v. Standard Milling Co., Mo.Sup., 312 S.W.2d 106;Gough v. General Box Co., Mo.Sup., 302 S.W.2d 884;Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, andBennette v. Hader, 337 Mo. 977, 87 S.W.2d 413, 101 A.L.R. 1190.

A consideration of the facts shown in the case at bar, in the light of the foregoing authorities, had caused us to conclude that the statements of the bus driver were not admissible under the res gestate exception to the hearsay rule and hence their admission in evidence constituted an abuse of the trial court's discretion and was reversible error.

Consel for plaintiff seems to have been of the opinion, in which the trial court apparently concurred, that the fact that those statements were made within a period of five minutes following the collision was, ipso facto, sufficient to warrant their admission in evidence.That is clearly an erroneous view.The fact that an utterance is made a very short time after the event will, in and of itself, have little weight in producing an affirmative conclusion that it is admissible.'The lapse of time involved is material mainly as evidence of lack of spontaneity.'Monical v. Armour and Company, Mo., 307 S.W.2d 389, 392.

The fatal...