Summary
In Sexton v. Balinski, 280 Mich. 28, it was held to be error to permit testimony that the driver of a car stated at the police station about 15 minutes after the accident occurred that the other defendant in the case was the owner of the car.
Summary of this case from Lewis v. SummersOpinion
Docket No. 5, Calendar No. 39,314.
Submitted April 21, 1937.
Decided May 21, 1937.
Appeal from Wayne; Gordon (Arthur E.), J., presiding. Submitted April 21, 1937. (Docket No. 5, Calendar No. 39,314.) Decided May 21, 1937.
Case by Charles J. Sexton against Tad Balinski, John Kozakiewicz and Nick Zuck, doing business as Zuck Auto Sales, for personal injuries sustained when struck by an automobile. Verdict and judgment for plaintiff. Defendant Zuck appeals. Reversed and new trial granted.
Bratton Bratton, for plaintiff. Henry and Edward F. Wunsch ( Ernest C. Wunsch, of counsel), for defendant Zuck.
Plaintiff recovered a judgment against defendants for $5,000 damages for injuries sustained while a pedestrian by being struck by an automobile. Defendant Zuck alone appeals.
Plaintiff was injured by being struck by an Oldsmobile and appellant's liability depends upon whether he was the owner thereof at the time plaintiff was injured. At the trial, a police officer was permitted to testify, against appellant's objection, to what defendant Kozakiewicz said at the police station after the accident about appellant owning the automobile. The police officer, Fred Wilkinson, stated defendant Kozakiewicz told him who owned the car he was driving. This was objected to as hearsay and the court stated he would receive it as a part of the res gestæ. The testimony showed this statement was not taken immediately following the accident but at the police station approximately 15 minutes after the accident occurred, and that at that time the defendant Kozakiewicz said the car belonged to Nick Zuck. All this was objected to as hearsay.
Statements which are part of the res gestæ are always hearsay but constitute, as generally classified, an exception thereto based upon the fact they are spontaneous exclamations which by virtue of their origin have a peculiar trustworthiness. The only conditions on which such statements will be allowed in evidence are: (1) That there is a startling occasion, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the statement must have been made before there has been time to contrive or misrepresent; and (3) the statement must relate to the circumstances preceding it. Rogers v. Railway Co., 187 Mich. 490; McAvon v. Brightmoor Transit Co., 245 Mich. 44; Bernard v. Grand Rapids Paper Box Co., 170 Mich. 238 (42 L.R.A. [N. S.] 930).
The testimony admitted against appellant's objection was as to the defendant Kozakiewicz a self-serving declaration, — and as to appellant Zuck not a part of the res gestæ, but clearly hearsay. There was little testimony outside of that offered by officer Wilkinson tending to show appellant Zuck was the owner of the automobile. The admission of this testimony was prejudicial error. The other questions are not likely to arise upon a retrial of the case.
Judgment reversed, with costs, and new trial ordered.
FEAD, C.J., and NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, and CHANDLER, JJ., concurred.