Lawrence v. Nelson

Calhoun, Judge,

concurring:

While I concur in the result reached in the decision of this case, I am unable to agree that the trial court properly admitted, over objection, that portion of the testimony of Frank K. Hereford, in which the witness summarized the narrative statement made to him by Jerry Lawrence concerning the facts leading up to and including the prior collision of the motor vehicles.

The testimony discloses that Jerry Lawrence is the husband of the plaintiff; that he was the driver of the vehicle in which she was a passenger at the time she sustained her injuries; and that he also has an action pending against the defendant to recover for damage caused to his automobile and for medical bills incurred in behalf of his wife as a consequence of the accident involved in the instant case.

The following questions propounded to Frank K. Hereford and the following answers given by him fairly disclose the nature of the testimony thus admitted over objection:

“Q. Mr. Hereford, do you know how soon after the wreck had occurred that you came upon the scene?

*150 “A. No, sir.

“Q. Can you describe the scene as you arrived there?

“A. Yes, sir. I felt I got there rather quickly after it had happened because there was dust settling around the cars and there was steam coming from one or both of the cars and they were close together. When I got there there wasn’t anyone else there. # # *

“Q. All right. Who was present at the scene when you arrived there?

“A. At first I saw the cars and then I saw a young man, let’s see, just about on the concrete where it meets the asphalt berm, and he was in motion and I am pretty sure he was waving to stop me, but I had already seen the cars and was beginning to stop and then I guess as I passed that young man I realized diere was a body lying on the road and when I got my car parked and put my blinker lights on to try to stop other cars, I walked back and there was a young woman lying there on the road.

* * #

“Q. And was the young man you first saw Mr. Jerry Lawrence, her husband?

“A. It was.

“Q. What, if anything, did Jerry Lawrence tell you then?

“A. For a while he was quite excited and for the first few minutes he urged me to get my car and drive on and get an ambulance. That was what he was most insistent about but I wouldn’t do that and later on I asked him what happened.

# * #

“Q. By later on what do you mean?

“A. Somewhere from two to five minutes.

# # »

“Q. And was the statement which he made to you then a part of the same conversation which you started with him in which he asked you to go on and move your car?

* # **

“The Witness: I might have difficulty in answer *151 ing. It was a running conversation. The young man and I talked steadily for some two to four minutes until another car came along to stop. If it please all of you gentlemen, I was in fear obthis young woman’s life because she was lying there on the concrete and I was trying to get other cars to stop, to use their lights to stop other traffic so that she wouldn’t get hit. I had a running conversation with the young Lawrence boy for the duration of two to four minutes.

“Q. And during that conversation which lasted as you say from two to four minutes, did Mr. Lawrence tell you about how the wreck occurred?

* # *

“The Witness: A. Yes, sir.

“Q. What did he tell you, Mr. Hereford?

“A. I first asked him to give me the name and telephone number of his mother so that I could notify her and then I asked him what happened and he told me.

“Q. What did he tell you?

“A. He told me he was going south on the Turnpike up the river that a car approaching him going down die river failed to make the — or was not making the curve there on the Turnpike and that he, realizing that that car was going to strike him, cut his wheels hard to the left to try to go around him on the other side and that as he did so this car approaching him cut his wheels hard to the right and that they collided.”

Whether the narrative statement, on the question of its admissibility, be tested on the basis of the rather indefinite and confusing doctrine of res gestae, or upon the more narrow rule relating to spontaneous utterances, in either event the verbal declaration must meet the test of spontaneity. “But spontaneity rather than contemporaneity is now the generally recognized test of admissibility.” Collins v. Equitable Life Ins. Co., 122 W. Va. 171, 173 , 8 S. E. 2d 825, 826 . The basis of the doctrine is, of course, that the spontaneous, impulsive, almost involuntary nature of the utterance supplies the essential guaranty of trustworthiness. Such utterances are admitted only when the declar- *152 ant is “ under such stress of emotion or excitement as to render the declarations spontaneous to the point of being almost involuntary, precluding the reflection that gives rise to falsehood.” Reynolds v. W. T. Grant Co., 117 W. Va. 615, 620 , 186 S. E. 603, 605 .

Reflection is the very antithesis of spontaneity. Innate in an extended narrative of a past event on a question and answer basis is the element of reflection. From this we derive the well-settled proposition that if the declaration or statement is a mere narrative of a past event, such declaration or statement may not be admitted under the rule of evidence now under consideration. Accordingly, in the early case of Corder v. Talbott, 14 W. Va. 277 , the Court, in the third point of the syllabus, stated: “When the declarations are merely a narrative of a past occurrence, though made ever so soon after the occurrence, they ought not to be received in evidence, they being in such case no part of the res gestae.” The same principle, which is believed to represent a quite general rule, has been recognized in Hawker v. The B. & O. R. R. Co., 15 W. Va. 628, 637 ; Williams v. Belmont Coal & Coke Co., 55 W. Va. 84, 97-98 , 46 S. E. 802, 807 ; State v. Woodrow, 58 W. Va. 527, 534 , 52 S. E. 545, 548 ; Depue Adm’r v. Steber, 89 W. Va. 78, 82-83 , 108 S. E. 590, 591-592 ; Collins v. Equitable Life Ins. Co., 122 W. Va. 171, 174 , 8 S. E. 2d 825, 826 .

The necessity of the element of spontaneity is fully recognized in the prior decisions of this Court cited in the opinion in support of the holding that this testimony was properly admitted by the trial court. Such necessary element of spontaneity is likewise recognized in the fourth point of the syllabus of the opinion.

The statement attributed by the witness to Jerry Lawrence “was a running conversaton”, on a question and answer basis, an extended “conversation” lasting “some two to four minutes”, as distinguished from a spontaneous utterance. Though, for reasons *153 stated in tlie opinion, a decision of this question was unnecessary to a decision of the case, I fear that the Court’s opinion may he regarded as a precedent for an unwarranted application of the rule of evidence. I, therefore, undertake herein briefly to state my position.

I concur in the result, nevertheless, because that which I conceive to have been error was rendered harmless by the testimony of Jerry Lawrence under oath in open court and by the introduction in evidence, without objection, of the written statement taken from him by the investigating officer.