dissenting.
I am unable to agree with the holding of the majority opinion that the statement made in response to the inquiry by Dr. Fasser is admissible as a part of the res gestse.'
The record discloses that the accident happened between 10:30 and 11 o’clock p. m., and that it was 15 or 20 minutes before Mr. Suhr was removed from the scene of the accident. Upon his arrival at the hospital, in the words of one of the witnesses, “We worked with him for awhile getting- him warmed up and sort of over his first shock” before the statement was made. It is apparent that at least 30 minutes had elapsed, and probably more, before Dr. Fasser made his inquiry. The evidence is not disputed that deceased was conscious from the time of the accident until the purported res gestse' statement was made. He talked with some of the witnesses immediately following the collision but made no statements bearing upon the cause of the accident at that time. Under this statement of the facts, the testimony offered in evidence is not a part of the res gestse. It is merely a self-serving declaration that is not admissible in evidence for any purpose.
In order for a declaration to be admissible as a part of the res gestse, it must be a spontaneous utterance, made contemporaneously with the facts in controversy and explanatory of such facts. A mere narrative of a past occurrence is not a part of the res gestse. In the case at bar, the declaration was no part of the transaction. The accident had occurred more than 30 minutes before the declaration was made. Ample time had been afforded the declarant to formulate his thoughts and to engage in the natural tendency of a person to exculpate himself. The general rule is that the declarations of the party to his physician or to other persons as to the cause of the injury are not admissible when not made at the time of the injury. 3 Jones, Commentaries on Evidence (2d ed.) sec. 1217.
Another noted text-writer states the rule as follows: “The utterance must have been before there has been time *867to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. * * * 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.” 3 Wigmore, Evidence, sec. 1750 (b).
In commenting on the same point, another text-writer .states: “So if in one of our streets there is an unexpected collision between two men, entire strangers to each other, then the res gestee of the collision are confined within the few moments that it occupies. * * * It is the power of perception unmodified by recollection that is appealed to; not of recollection modifying perception. Whenever recollection comes in — whenever there is an opportunity for reflection and explanations — then statements cease to be part of the res gestee.” 1 Wharton, Law of Evidence (3d ed.) secs. 258, 259.
In Chicago & A. R. Co. v. Industrial Board, 274 Ill. 336, 113 N. E. 629, the court said: “Declarations by an injured person to his attending physician are admissible in evidence when they relate to the part of - his body injured, his suffering, symptoms and the like, but not if they relate to the cause of the injury; and this rule is even more rigorously enforced as applied to lay witnesses.”
In Chicago Packing Co. v. Industrial Board, 282 Ill. 497, 118 N. E. 727, the court said: “Where no one witnesses an accident resulting in an employee’s death, the testimony of an interne at the hospital to which the injured employee was taken, as to what the employee told him about the accident, is not admissible.”
In Roosa v. Boston Loan Co., 132 Mass. 439, the court said: “While a witness, not an expert, can testify only to such exclamations and complaints as indicate present existing pain and suffering, a physician may testify to a statement or narrative given by his patient in relation to his condition, symptoms, sensations, and feelings, both *868past and present. In both cases these declarations are admitted from necessity, because in this way only can the bodily condition of the party, who is the subject of the injury, and who' seeks to obtain damages, be ascertained. But the necessity does not extend to declarations by the party as to the cause of the injury, which is the principal subject-matter of inquiry, and which may be proved by other evidence. No case has been called to our attention, and we are not aware of any case, where such evidence has been admitted.”
In Fordyce v. McCants, 51 Ark. 509, 11 S. W. 694, a physician was permitted to testify that, after driving 13 miles to attend the deceased who had been injured in a railroad accident, deceased stated to him that he had been thrown heavily across the corner of a seat and had thus received an injury from which the witness found him suffering. The court held that such declarations were not part of the res gestse.
In Illinois Central R. Co. v. Sutton, 42 Ill. 438, the court used the following language: “But to permit a party to prove what he himself stated to his physician, not in regard to the character and manifestations of his malady, but in reference to its specific cause, when that is one of the issues before the jury, would be carrying an acknowledged departure from the ordinary rules of evidence, having its origin in necessity, to a most dangerous extent.”
In Mayes v. State, 64 Miss. 329, 1 So. 733, the rule is stated in the following language: “It is not enough that the statement will throw light upon the transaction under investigation, nor that it was made so soon after the occurrence as to exclude the presumption that it has been fabricated, nor that it was made under such circumstances as to compel the conviction of its truth; the true inquiry, according to all the authorities, is whether the declaration is a verbal act, illustrating, explaining, or interpreting other parts of the transaction of which it is itself a part, or is merely a history or a part of a history of a completed past affair. In the one case it is competent, in the other it is not.”
*869In Simon v. Dixie Greyhound, Lines, 176 So. (Miss.) 160, a case very similar to the one at bar, the witness was in bed when he heard the crash of the collision. He immediately dressed and hurried to the scene of the accident. He assisted in carrying the injured man up the embankment onto the road and the witness offered to testify that the injured man said, “How come me here?” and next said, “The lights blinded me, I couldn’t see, I tried to stop and couldn’t.” He further testified that the injured man stated that he thought the bus was coming, and that he turned gradually to the right until he got on the bank and then could not stop. The court held that the statements by the injured man at the scene of the accident constituted a mere history or narrative of a completed past occurrence, and were therefore not admissible as a part of the res gestse.
In Zohner v. Sierra Nevada Life & Casualty Co., 114 Cal. App. 85, 299 Pac. 749, the evidence showed without conflict that the deceased was unconscious for something in excess of five minutes after the accident. The court said: “It is claimed that the trial court erred in admitting a certain declaration of the deceased made after regaining consciousness to the effect that he turned out to avoid striking another car. This testimony was inadmissible (citing cases).”
In the last two cited cases, if the declarations made had been spontaneous and explanatory of the accident, I would not agree with the result. They appear to be merely a recital of a past event; they are nothing more than self-serving declarations that are not admissible even if a part of the res gestse in point of time.
In Hill v. Aetna Life Ins. Co., 150 N. Car. 1, 63 S. E. 124, the court said: “The defendant proved by a witness that just after a passenger train running twenty-five to thirty miles an hour had passed, he saw the deceased struggling and falling along beside the train; that witness ran there as quickly as he could, rolled the man over on his face and commenced to talk to him. The court properly excluded any evidence as to what the injured man stated as to how he had sustained the injury. Though the time which had *870elapsed was brief, the conversation was not a part of the res gestas. It was not exclamatory but narrative, and therefore hearsay and incompetent. * * * The evidence offered of declarations made a few minutes still later by the deceased as to the manner in which he had been injured were, of course, incompetent. The fact that the plaintiff had repeated one of these statements made to himself did not make it competent. It was merely hearsay still.” (Italics ours.)
Some of the cases in this court supporting my contention are: Missouri P. R. Co. v. Baier, 37 Neb. 235, 55 N. W. 913; Union P. R. Co. v. Elliott, 54 Neb. 299, 74 N. W. 627; City of Lexington v. Fleharty, 74 Neb. 626, 104 N. W. 1056; Roh v. Opocensky, 126 Neb. 518, 253 N. W. 680; Milton v. City of Gordon, 129 Neb. 888, 263 N. W. 208; Tongue v. Perrigo, 130 Neb. 564, 265 N. W. 737.
The decision most frequently relied upon to sustain the admission of the declarations of an injured person as to the cause of an injury that has resulted in his death is Insurance Co. v. Mosley, 8 Wall. (U. S.) 397, 19 L. Ed. 437, in which declarations of the deceased that he had fallen downstairs, made to his son immediately after the occurrence, and to his wife as soon as he came back upstairs, were admitted in evidence as part of the res gestas. While this case has been severely criticized, I would not feel obliged to voice objection if the rule therein stated were applied to the suit at bar. The declarations in the Mosley case were spontaneous and immediate and justification exists for the statement that they were so close in point of time that they should be considered as a part of the whole transaction. This is hot so in the case before us.
I submit that the declarations in the instant case were not a part of the accident nor did they follow immediately upon the happening of the accident. They were narrative in form and consisted merely of a recital of a past transaction that had terminated more than 30 minutes before; the opportunity for reflection and self-exculpation was present and the declarations were in no sense spontaneous, *871•they having been elicited by the inquiries of the physician, and were not voluntary declarations in the sense required by the res gestas rule. In my judgment, the decision of the majority is an unjustifiable departure from the rules announced by this court and the courts of other jurisdictions. It must ever be borne in mind that “what the law distrusts is not after speech, but after thought.”