(specially concurring).
I concur in the result of the case and in all that is said and ruled in it except what was said and ruled in respect of the court’s exclusion of the deceased’s statement to his wife, “No, I have had an accident. I have shot myself.” By Rule 43, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the district judge was enjoined to admit evidence which is admissible either “under the rules of evidence heretofore applied in the courts of the United States” or under those applied in the courts of the state in which the United States court is held, in case of a conflict, the rule which favors the reception of the evidence to govern. Under that rule, the district judge’s action in excluding the evidence was not error, for both under the rule “heretoforé prevailing in the United States Courts”, Bonner v. Texas Company, 5 Cir., 89 F.2d 291; Chesapeake & Ohio Railroad Co. v. Mears, 4 Cir., 64 F.2d 291, and under that prevailing in Florida, where the action was tried, Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90, 97, whether statements offered as res gestae are admissible under the rule depends in each case on its own facts and the trial court has a sound discretion to determine whether the facts bring the proffered evidence within the rule. A prime requisite in the courts of the United States and those of Florida, for the admission of statements of a deceased person, as a part of the res gestae is that they must be shown to have been voluntary and spontaneous and not a narrative of a past event. Authorities supra, and Halleck v. Hartford Accident & Indemnity Co., 5 Cir., 75 F.2d 800. It cannot therefore, I think, reasonably be said that the district judge erred in excluding the statement which was made by Walker some time after the injury and while lying quietly on his bed, in response to a direct question by his wife as to what happened.1
It must be kept in mind that we are not asked here to sustain the exercise of the trial court’s discretion but to reverse it. What we ought to have done, if the evidence had been admitted and the complaint was of its admission, nor what we ought to do if on another trial it be admitted and the admission is complained of, is not before us. All that is before us is, did the judge in ruling as he did, abuse his discretion? I think it plain that, except in Texas where the rule in regard to admis-sion of res gestae statement, Cf. Hartford Accident & Indemnity Co. v. Olivier, 5 Cir., 123 F.2d 709, is very much more liberal than that heretofore prevailing in the federal courts and in Florida, only the exercise of the trial court’s discretion in. favor of admission, could admit them. His exclusion of them from the evidence cannot, I think, be said to be an abuse of his' discretion.
I therefore dissent from the ruling that the exclusion of the deceased’s statement was reversible error.
“A. Before I got to his room I called him by the name of Heyward.
“Q. What next happened with reference to any statement that he made? A. He answered, and, of course, in the meantime, you see, I was walking toward the room and I found him lying on the bed and then I asked him what happened. And he said — I said, T thought, maybe, you had fallen asleep.’ and he said, ‘No, I have had an accident; I have shot myself.’
“Q. What next did you say to him, if anything? A. I asked Mm how it happened.
“Q. What did he say? A. He told me he was cleaning this pistol and had gotten all of the bullets out but one, there were five in it, and it accidentally discharged while he was trying to get it out, and the four bullets were there on the table and were all corroded.
“Q. Did you ask him why he didn’t answer the telephone? A. I did.
“Q. What did he say? A. He said, ‘I was in pain and I couldn’t get up’.”