Little v. Power Brake Company , 255 N.C. 451 ( 1961 )

121 S.E.2d 889 (1961) 255 N.C. 451

Mrs. Vera Louise LITTLE, Widow, and Next Friend of Judith Ann Little, daughter, of Arthur Herman Little, Deceased, Employee,
v.
POWER BRAKE COMPANY, Incorporated, Employer, and United States Casualty Company.

No. 244.

Supreme Court of North Carolina.

October 11, 1961.

Carswell & Justice by James F. Justice and B. Kermit Caldwell, Charlotte, for plaintiffs, appellants.

Henry & Henry by Everett L. Henry, Lumberton, for defendants, appellees.

PARKER, Justice.

Claimants assign as errors the exclusion by the court of the following statements made by the deceased employee, offered by them to show the purpose of his trip, and that he was engaged in work for his employer at the time of his death.

One. On the day of his death the deceased employee called on H. F. Hoffman, a customer, at Laurinburg about 10:00 o'clock a. m., and stayed about 45 minutes. As he prepared to leave he said, "I've got to be going along, I've got to be down at Whiteville to see a customer sometime today."

Two. About 7:00 o'clock p. m. on the day of his death the deceased employee bought some gas at Bill Adams' service station in Laurinburg. While there he told Z. R. Jackson, who worked there, the following: "He told me he was going to Lumberton and would see me when he came back through, wanted to know if I stayed open all night. He didn't specify no certain place he was going in Lumberton. Said he had a little business to attend to in Lumberton. All he said to me, he would be back and he would see me when he came back that night, wanted to know if I stayed open all night and I told him yes."

Three. As the deceased employee was leaving his home in Charlotte he told his wife he would call her from there, and he did. Around 7:00 p. m. o'clock the day of his death the deceased employee talked to his wife in Charlotte by telephone from the motel in Laurinburg, and told her: "He said that he was going to call on some more customers, so that he wouldn't have to spend another night. He had been down, hadn't been down there since before Christmas and he was behind and he didn't want to stay over another night." She also testified: "My husband had been to Laurinburg before in his work for Power Brake Company and beyond Laurinburg as far as Whiteville and Lumberton," which was excluded.

The rule that statements made by a person since deceased, as to the purpose or destination of a trip or journey he is about to make, may be proved as part of the res gestae when connected with the act of departure, has been recognized and given effect in the admission of such testimony in a considerable number of cases, and the evidence has been excluded in a number of other cases because not part of the res gestae, though recognizing the rule. Gassaway v. Gassaway & Owen, Inc., 220 N. C. 694, 18 S.E.2d 120, 122; Annotation 113 A.L.R. 268-310, an elaborate annotation where a very large number of cases are cited and analyzed; Annotation 163 A.L.R. 21-25; Jones on Evidence, 2nd Ed., Vol. III, § 1220. Other theories for the admission of such statements have been propounded, but the "theory of res gestae is by far the most popular theory of admission, though possibly not as well reasoned as the theory that the declarations are admissible as original evidence, as an exception to the hearsay rule." Annotation 113 A.L.R. 275. An extraordinary development in the literature of res gestae was Dean Wigmore's wholesale denunciation of the term itself. Evidence, 2nd Ed., § 1767. However, it is said in annotation 163 A.L.R. 20, "The bench and bar in general have not agreed with Dean Wigmore."

In Gassaway v. Gassaway & Owen, Inc., supra, a workmen's compensation case, claimants relied on statements made by deceased two days and one day prior to his departure for High Point to obtain a contract, to show that at the time of his death he was engaged in his work as an employee. The Court said: "These statements were not made at the time of and were not immediately connected with the actual departure. They were no part of the res gestae, and were inadmissible. (Citing authority). Nor were they admissible as dying declarations under C. S. 160. To be admissible as a part of the res gestae it must be made to appear that the statement was made at the time of the starting of the journey, as to the purpose or destination of the trip he is then about to make. It must be connected with the act of departure. Annotation 13 A.L.R., 273-275. (Sic. Should be 113 A.L. R.). When not so made they constitute no part of the res gestae and are inadmissible. Annotation 113 A.L.R., 281."

This Court said in Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757, 758: "For a declaration to be competent as part of the res gestae, at least three qualifying conditions must concur: (a) The declaration must be of such spontaneous character as to be a sufficient safeguard of its trustworthiness; that is, preclude the likelihood of reflection and fabrication; 32 C.J.S., Evidence, § 417, pp. 45, 46, supra; instinctive rather than narrative; Queen v. [Dixie Fire] Ins. Co., 177 N.C. 34, 97 S.E. 741; Summerrow v. Baruch, 128 N.C. 202, 38 S.E. 861; (b) it must be contemporaneous with the transaction, or so closely connected with the main fact as to be practically inseparable therefrom; Queen v. [Dixie Fire] Ins. Co., supra; and (c) must have some relevancy to the fact sought to be proved. It must be remembered that to be admissible the declaration must be a part of the res gestae—not merely amongst the res gestae—that is, it must be so interwoven into the transaction that it may be vested with the significance of a fact—that is, one of the ``res gestae' or ``things done.' They are called ``verbal facts' or ``verbal acts.' 20 Am.Jur., Evidence, Sec. 664. If not of this character, its mere nearness to the transaction in point of time has no significance. No rule of universal application can be devised as to the time element; but the principle of relevancy to the fact sought to be proved by it admits of no relaxation. Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; 76 A.L.R. 1125, Annotation."

The deceased employee left the motel in Laurinburg on his fatal trip about 7:30 p. m. o'clock. His statement to H. F. Hoffman about 10:45 a. m. o'clock, "I've got to be going along, I've got to be down at Whiteville to see a customer sometime today," was not connected with his act of departure at 7:30 p. m. o'clock, constitutes no part of the res gestae, and was inadmissible.

The deceased employee after buying gas and talking with Z. R. Jackson at a service station went back to the motel, from there talked to his wife in Charlotte by telephone, went to the motel's office, and there T. T. McNair, manager of the motel, pointed out to him on a North Carolina highway map a route from Laurinburg to Lumberton, to Elizabethtown to White Lake to Burgaw, a distance of about 115 miles. His parents-in-law lived six miles north of Burgaw. He then ate supper in the motel dining room, and left on his fatal trip at 7:30 p. m. o'clock. In his statement to Jackson he said he was going to Lumberton and had a little business to attend to there, but he did not say it was his employer's business, or where he was going to in Lumberton. In our opinion, his statement to Jackson was not connected with his act of departure at 7:30 p. m. o'clock, and constitutes no part of the res gestae, and we are fortified in our opinion by the fact that he was killed by accident about four miles south of the city limits of Lumberton. In addition, claimants offered this evidence for the purpose of showing the purpose of his trip, and that he was engaged in work for his employer at the time of his death, but his statement to Jackson does not say what his business was in Lumberton, and has no relevancy to the fact sought to be proved. It was properly excluded.

We now come to his statement by telephone to his wife around 7:00 o'clock p. m., "that he was going to call on some more customers, so that he wouldn't have to spend another night, etc." He did not state who these customers were, or where they lived. After this conversation he went to the motel's office, and its manager pointed out to him on a North Carolina highway map a route from Laurinburg to Burgaw, near which place his parents-in-law lived. He then ate supper, and left. He was killed outside his regular selling territory by accident about an hour and a half later.

In Prater v. Traders & General Ins. Co., Tex.Civ.App., 83 S.W.2d 1038, 1039; a case relied upon by claimants in their brief, appears this language: "It is sufficient if the declaration appears to have been made in a natural manner without circumstances of suspicion and purports to evidence the declarant's existing state of mind with reference to the purpose of the proposed journey and there be such proximity between the time of the making of the declaration and the incident involved in the suit as, under the circumstances, will furnish reasonable assurance that there has been no change of purposes or designs in the meantime." Citing authorities.

The facts found furnish no reasonable assurance that deceased employee had not changed his purpose or design to call on some more customers so he wouldn't have to spend another night, as he told his wife, before he left on his fatal trip after supper. Whether he did, or whether he did not, is left in the realm of conjecture and guesswork. In our opinion, and we so hold, under all the facts found, his statement to his wife was not immediately connected with his actual departure at 7:30 p. m. o'clock and not so interwoven into his departure that it is vested with the significance of a fact, so as to constitute a part of the res gestae, particularly as he was killed by accident outside his regular selling territory. It was properly excluded.

Claimants' other assignments of error brought forward and discussed in their brief have been carefully examined, and are overruled. The assignments of error not brought forward and discussed in their brief are deemed to be abandoned. Rules of Practice in the Supreme Court, 221 N.C. 544, 563, Rule 28.

The findings of fact are supported by sufficient competent evidence, and they in turn support the conclusions of law, and the judgment.

The following testimony by Mrs. Nan B. Simpkins, president and general manager of Power Brake Company, may cast some light upon this tragic accident: "On the following day I went with Mr. Barnette to Mrs. Little's home where I had a conversation with Mrs. Little. Mrs. Little felt awfully remorseful about Herman—Herman's death. And she hated she told Herman about her father being ill, that she felt like had she not have said that he wouldn't have tried to make a trip. There was several people in the room including a doctor. Her father lived at Burgaw. She told me she had talked to Mr. Little, but did not say whether he made it or she made it, over the telephone." However, the widow, Mrs. Little, testified on cross-examination: "I saw Mrs. Simpkins the day following January 8th but made no statement to her that if I had not told my husband about my father, my husband would still be here. * * * I do not recall having a conversation with Mrs. Simpkins in the presence of Mr. Barnette."

The judgment below is

Affirmed.