DISSENTING OPINION. I am of the opinion that the judgment should be reversed. It is apparent that there is no possibility of a recovery in this case without the testimony of Mr. Rhoads concerning what insured said to him about the receipt of the latter's injury. These statements of the insured, in my opinion, cannot be considered a part of theres gestae. They do not meet with the conditions necessary to come within that exception to the hearsay rule. What is necessary in order to make a declaration a part of the res gestae is well stated by Judge TRIMBLE in the case of Freeman v. Loyal Protective Insurance Company, 196 Mo. App. 383, 391, as follows:
"Now it is well settled that declarations need not be contemporaneous with the exciting cause, nor can there be any general rule fixing a definite length of time as determinative of their admissibility. But where there is a lapse of time between the occurrence and the declarations, the latter must be made under circumstances which show that they are the spontaneous, unreflecting, instinctive impulse generated by some physical shock, stress of nervous excitement, or excited feeling which extends continuously and without abatement or dissipation from the moment of the occurrence to the time of the declaration in such full sway as to dominate the reflective faculties and take away the opportunity for reasoned reflection."
What was said in that case, l.c. 392, described a situation very similar to the one in the case at bar.
"What he there says about having swallowed a bug is not the spontaneous instinctive impulse born of his situation or condition and under the stress of which the control of his reflective faculties are in abeyance. Neither in the statements here made nor in those made to Mrs. Torbit is there such a continuous uninterrupted connection between the occurrence and the declarations as to constitute the two one transaction or to make the latter the spontaneous exclamations of the real cause free from the influence of the reflective *Page 585 faculties to reason over and narrate the happening of the past event."
The circumstances surrounding the purported declarations in the case at bar are not sufficiently developed to bring the insured within the conditions laid down in the Freeman case. The time elapsing between the alleged accident and the declarations, the lack of a showing of "a continuous uninterrupted connection between the occurrence and the declarations," the fact the declarations were made far from the scene of the accident and that insured was able to drive a truck so great a distance after the alleged accident and the fact that he made no voluntary exclamation but merely answered questions propounded to him, all disclose a lack of sufficient evidence to show spontaneity in his declarations.