Opinion
No. 22830
Decided October 28, 1931.
Evidence — Negligence — Declaration of clerk that she caused injuries, inadmissible — Clerk not party to suit or engaged in storekeeper's business — Issue of negligence not determinable from opinion or conclusions of declarant, when.
Shortly after an accident, a clerk of the defendant made certain declarations to the effect that she, the clerk, caused the injury and that she was sorry that she caused it. The clerk was not a party to the suit, nor were the declarations made while engaged in the prosecution of any business for her master. Held: Such declarations, assuming blame for the injury, were but the expression of an opinion or conclusion as to who caused the accident, and their admission constituted prejudicial error. The ultimate issue, that of negligence, must be determined by the jury from testimony detailing facts and circumstances connected with the accident and not from the opinion or conclusion of the declarant.
ERROR to the Court of Appeals of Summit county.
The parties herein will be referred to as they stood in the trial court, wherein Rose Schafer was plaintiff and Neisner Bros., Inc., was defendant. In that court the plaintiff recovered a verdict and judgment, which was later affirmed by the Court of Appeals. Thereafter a motion to certify was allowed, and the case is now in this court for review.
The plaintiff, as a patron of the defendant, had purchased merchandise at the defendant's store. The testimony offered by the plaintiff tended to prove that she approached a clerk by the name of Davies for the purpose of wrapping up her merchandise. This clerk being engaged at the time in wrapping silverware in tissue paper, the plaintiff approached another clerk, Mrs. Harpley by name, for the purpose of having her merchandise wrapped. The counters of these two clerks were on opposite sides of an aisle in the store. The testimony further tends to disclose that the plaintiff, with her wrapped bundle in her arms, started to the elevator, and while approaching it slipped upon the floor, which had been newly oiled, and injured herself; that immediately after her fall the two clerks, Harpley and Davies, approached the fallen woman, assisted her to arise, and engaged in a conversation, the substance of which is the chief cause of this controversy. This conversation is alleged to have occurred very shortly after the accident.
In attempting to prove her case the plaintiff offered herself as well as Mrs. Harpley as witnesses in chief, and, while they do not exactly agree as to what one of the clerks (Davies) said, their narrations of it were of similar import.
The defendant objected to the question eliciting the conversation, moved that the answers narrating it be disregarded, and saved its exceptions. Testimony of plaintiff on the witness stand is as follows:
"Q. Relate the conversation as nearly as you can recall it?
"Mr. Kelly: I object.
"The Court: The objection is overruled.
"Mr. Kelly: Note my exceptions.
"A. Well, she said, 'I am sorry, dear, I caused you this injury.' She said, 'I did not mean to do it.' "
Similar objections to the questions and answers of the clerk Harpley were made by the defendant. Harpley testified that the clerk Davies said: "Well, I am sorry that I caused the accident. I should not have dropped the paper on the floor." The clerk Davies did not testify. It further appeared from the evidence that after the plaintiff's fall two or three pieces of tissue paper were seen on the floor at that point, and that a small piece thereof had stuck to the plaintiff's heel. The declarations alleged to have been made by Davies were not made as an agent in the prosecution of her employer's business.
Mr. D.L. Van Buskirk and Mr. William A. Kelly, for plaintiff in error.
Messrs. Sheck Stevens, for defendant in error.
The statement made by the clerk Davies was not made while the clerk was engaged in the prosecution of her principal's business. She had not waited upon, nor had she served, plaintiff while the latter was a customer at the store. However, she appeared upon the scene very soon after the plaintiff fell. The trial court admitted the testimony under the rule that Davies' declarations were admissible as a part of the res gestae. There is quite a conflict of authority among the courts of the several states as to the admissibility of declarations made after an injury, many of the courts holding that declarations not spontaneously made, but made after and not concomitant with the accident, are narrations of a prior event and therefore inadmissible. However, conceding that declarations made so shortly after the accident should be considered as a part of the res gestae, such declarations assuming blame for the injury are inadmissible if they were opinions or conclusions of the declarant.
This feature of the case presents the same phase as was decided in Lane v. Bryant, 75 Mass. (9 Gray), 245, 69 Am. Dec., 282. In that case, as in this, the plaintiff's witness was permitted to testify that a servant of the defendant "had said that the plaintiff was not to blame for what had occurred." Aside from the question of res gestae, Mr. Justice Bigelow in his opinion said: "The opinion of the witness on the subject was incompetent. The real question was, who was actually to blame, and that was to be determined by the jury by the facts in the proof. The plaintiff was not bound by the opinion or declaration of his servant on this question."
This principle was adhered to by this court in Cottom, a Minor, v. Klein, 123 Ohio St. 440, 175 N.E. 689, where it was decided that evidence of the character here involved was but the expression of an opinion upon an ultimate issue to be determined by the jury, and therefore inadmissible. The ultimate issue, that of negligence, must be determined by the jury from the testimony detailing facts and circumstances connected with the accident, and not from the opinion or conclusion of the declarant.
The clerk Davies was not a witness in the case; but had she been called to testify she would not have been permitted to give either her opinion or her conclusion that she had caused the injury and did not mean to do it. Her testimony would have been competent had she detailed the facts and circumstances surrounding the accident; thus permitting the jury to decide how and by whose negligence the injury was caused.
The admission of the testimony was extremely prejudicial to the defendant below, and the trial court erred in permitting it to be offered over the objection of the defendant. We find no other prejudicial error in the record. For the reasons stated the judgment of the Court of Appeals will be reversed and the cause remanded to the trial court for further proceeding according to law.
Judgment reversed and cause remanded.
MARSHALL, C.J., MATTHIAS, ALLEN, KINKADE and ROBINSON, JJ., concur.