The cause is here submitted on plaintiff's application for rehearing, consisting of two grounds: *Page 356
1. The court did not give plaintiff's evidence the most favorable intendment to plaintiff.
2. The court cited cases involving res gestae where the statements made were in response to inquiries, therefore not spontaneous.
We are quite familiar with the principle that on a motion for directed verdict the evidence must be given the most favorable intendment for the plaintiff. This we did in the consideration of the appeal. It is true that we mentioned ten minutes as the time elapsing between the injury to the plaintiff and her conversation with Fike and that is at variance with the testimony of the plaintiff who fixed the period as five minutes. The plaintiff is entitled to the most favorable interpretation of the testimony which is required by the variation in the time. However, all other circumstances surrounding the statement were as we set them out and the difference in time alone would not be sufficient to overcome the particulars wherein we indicated that the statement sought to be proffered was not spontaneous and of such character as to make it a part of the res gestae.
The second ground of the application is but a reiteration of the first. It is urged that we are not clear in our statement of controlling principles. That may be. In any event, we doubt if we could add anything to clarify what we have already stated. It is true that we set forth some grounds to support the action of the trial judge in directing a verdict which he did not specifically rely upon for his action. That, of course, is immaterial because the test is whether for any reason he was correct in the action taken.
The application for rehearing will be denied.
Application denied.
HORNBECK, P.J., WISEMAN and MILLER, JJ., concur. *Page 357