Truck Insurance Exchange v. Michling

Frank P. Culver, Jr., Associate Justice

This suit was brought by Mrs. Martha Michling and other statutory beneficiaries to recover death benefits provided by the Texas Workmen’s Compensation Act. Judgment was rendered in favor of these beneficiaries by the trial court and the Court of Civil Appeals has affirmed. . . .

The only evidence offered to prove that the deceased, Hugo Michling, sustained an accidental injury in the scope of his employment was that given by his wife, Mrs. Michling. She related that her husband left home to go to his place of work about 30 miles away on the morning of April 12, 1958, and at that time was apparently in good health; that she saw him when he got out of his car on his return home about 3:30 that afternoon and that “he sort of stumbled and caught himself and walked on up to the house and he said his head was hurting him terribly; he was batting his eyes and was very pale.” She quoted him as saying that “he had hit his head on the bulldozer, the iron bar across the seat. It slipped off the hill and he hit his head.” She also testified that he said “his head hurt so bad that he couldn’t do anything else but had to put up the bulldozer and come home.” Michling died at the hospital on May 11, 1958.

This case turns on the question of whether or not the foregoing testimony given by Mrs. Michling is admissible under the rule which admits res gestae utterances as an exception to the hearsay rule.

In the first place, while the workmen’s compensation law is to be liberally construed and administered in favor of the employee, this does not mean that the rules of evidence generally in the workmen’s compensation case are to be applied differently than they would be in cases arising under common law. Decisions of other jurisdictions support this view and we have found no Texas authorities to the contrary. . . . We therefore will discuss the admissibility of Mrs. Michling’s testimony based on the foregoing assumption.

This then brings us to the question of what are the general rules governing the admission of hearsay statements as res gestae. Wigmore in his work on Evidence, 3rd Edition, § 1747, has the following to say:

“This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts. * * *.”

In § 1750 he sets out the requirements as follows:

“(a) Nature of the Occasion. There must be some occurrence, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. * * *.”

"(b) Time of the Utterance. The utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. This limitation is in practice the subject of most of the rulings.

"It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. * * *

"Furthermore, there can be no definite and fixed limit of time. Each case must depend upon its own circumstances.

“(c) Subject of the Utterance. The utterance must relate to the circumstances of the occurrence preceding it. * * *.”

The very unusual circumstance in this case is that the hearsay statement of Mrs. Michling is the only evidence of the event which gives rise to the statement. A hearsay statement, as res gestae, is admitted as an exception to the hearsay rule because it is made under circumstances which raise a reasonable presumption that it is the spontaneous utterance of thought created by or springing out of the occurrence itself and, so to speak, becomes a part of the occurrence. But in this case the only evidence of the occurrence is the hearsay statement. Thus the Court of Civil Appeals is conceding credit to a narrative to prove the very circumstances from which it is said to derive its credit. Its trustworthiness, as to the happening of an accident, is presumed from the influence of the accident which its trustworthiness is taken to prove. Thus this proof, to use a trite expression, is attempting to lift itself by its own bootstraps. There is not any independent proof that Hugo Michling suffered any injury at approximately the time and place alleged. There appeared to be no iron bar across the bulldozer seat. There was no testimony from any other source that he was present at his place of employment on the day of the alleged injury. The time records of his employer indicated that Michling worked Friday, April 11th, until noon and that he did not work on the 12th. The operating records kept by his employer indicated that none of the tractors owned by the employer were in operation on that date.

The medical testimony is that Michling died of a cerebral hemorrhage resulting from a congenital weakness in one of the blood vessels in the brain and that such a hemorrhage may be precipitated by a cough, a strain, a blow to the head or may occur spontaneously. The fact that Michling died from a cerebral hemorrhage does not necessarily indicate any accidental injury. There was no visible mark of any injury upon his head.

It is generally held that in passing upon the admissibility of a statement offered as a part of the res gestae the trial court has considerable discretion. . . .

For declarations to be admissible in evidence as part of the res gestae they must be made in connection with an act proven. In other words there must be evidence of an act itself admissible in the case independently of the declaration that accompanies it. . . .

As aptly said in 32 C.J.S., Evidence, § 405:

“* * * It is proceeding in a circle to use the declarations as proof of facts necessary to constitute declarations part of the res gestae.”

Our holding in American General Insurance Co. v. Coleman . . . has some bearing on this point. In that case we held that the testimony of the doctor relating what the deceased Coleman told him, namely, that “he was going from Jacksonville to Houston; that he was driving a Brown & Root jeep; that he was going to be transferred to another job” was not admissible as a res gestae exception to the hearsay rule. We said that while the statement might have been made a short time after the accident and while the deceased was in extreme bodily pain and emotional shock, yet it was lacking in the requirement that it must bend to explain the exciting event.

Coleman’s death resulted from injuries caused by the overturning of his automobile on the highway. The only question in that case was whether or not he was at the time of the accident acting in the course of his employment. The rejected testimony was offered for the purpose of establishing the affirmative of that question. While here Mrs. Michling’s statement in part did relate to the alleged accident, nevertheless it was offered for the same purpose, namely, to prove that Michling sustained an accidental injury while engaged in the course of his employment. The principle involved, we think, is somewhat the same in both cases.

A case quite comparable on the facts, that of Beck v. National Surety Corp. . . . is authority for the proposition that in this type of situation there must be independent proof of the event to corroborate the hearsay evidence. Beck died of a cerebral hemorrhage. The alleged injury occurred about 3:30 or 4:00 in the afternoon when Beck strained himself while trying to close a valve. He did not complain to his fellow workers at that time nor later after work when three of them were drinking beer. At about 4:45 p.m. he tried to get in touch with his wife by calling his sister-in-law. It was not until around 6:30 p.m. that he said to his wife when she arrived home that he strained himself on the job and that he had a terrible headache and a terrible pain in his left side and leg, and that caused him to fall. However, at this time he was lying on the kitchen floor in a paralyzed, semi-conscious condition. he did not recognize his wife when she first arrived and could not stand or talk. He made his statement to her after he had regained consciousness. The 5th Circuit in upholding the trial court’s exclusion of this testimony went on to say:

“There is absolutely no direct or substantial evidence in this case of any accidental injury sustained by the deceased while at work, except the statements alleged to have been made by him approximately two hours after his alleged injury, and at his home several miles away from the plant. Such statements were manifestly incompetent as original proof of the principal fact in issue, i.e., whether the injury alleged was sustained in the course of employment, where there was no other proof of that fact to lend them support. * * *”
. . .

Our holding in Wade v. Texas Employers Ins. Ass’n, . . . cited by the Court of Civil Appeals, is not an authority for the proposition that the statement made by Michling to his wife is admissible as evidence. In that case the deceased employee was at work when he made the statement that “this gas is about to get me,” which was admitted as a res gestae utterance. But two of his fellow employees testified that there was an unusual amount of chlorine gas present when they were at work which was produced from nearby operations in a chemical plant. The proof of the occurrence, namely, the presence of chlorine gas, which gave rise to the statement, did not depend upon the statement of the deceased.

For the foregoing reasons the judgments of the trial court and of the Court of Civil Appeals are reversed and judgment here rendered in favor of petitioner, Truck Insurance Exchange.