Ridie Ward HARGETT
v.
JEFFERSON STANDARD LIFE INSURANCE COMPANY.
Ridie Ward HARGETT
v.
The PHOENIX MUTUAL LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT.
Ridie Ward HARGETT
v.
The FIDELITY MUTUAL LIFE INSURANCE COMPANY.
No. 179.
Supreme Court of North Carolina.
October 31, 1962.*28 Jones, Reed & Griffin, Kinston, and George R. Hughes, Trenton, for plaintiff.
Wharton, Ivey & Wharton, Charles E. Dameron, III, Greensboro, and Whitaker & Jeffress, Kinston, for defendants.
MOORE, Justice.
We first consider whether the trial judge erred in excluding the statement of deceased to Turner and Jones that he had been stung by a wasp. An answer to this question is not necessary for a decision on this appeal, but the question will arise upon the retrial of the case and for that reason we discuss it here.
When, in an action upon an accident insurance policy, the beneficiary seeks to introduce in evidence declarations of deceased insured relative to the occurrence allegedly causing death, the inquiry is whether the declarations are part of the res gestae or are merely hearsay. 29A Am.Jur., Insurance, s. 1888, p. 947. To take such declaration out of the hearsay rule and render it competent as a part of the res gestae, it must be relevant, it must be so spontaneous *29 in character as to safeguard its trustworthiness, preclude the likelihood of reflection and fabrication, and render it instinctive rather than narrative, and it must be contemporaneous with the transaction, or so closely connected with the main fact as to be practically inseparable therefrom. Little v. Power Brake Co., 255 N.C. 451, 455, 121 S.E.2d 889; Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757. This general statement of the rule is difficult of application in particular circumstances. It has been said that "there is no single res gestae rule, and the expression does not mean exactly the same thing when used in different connections." Stansbury: North Carolina Evidence, s. 158, p. 329. Because of the incidence of various other rules of law in the different types of cases in which the res gestae rule arises, there seems to be inconsistencies in its application by our Court, particularly as to the effect of the time element. In many cases there is insistence upon strict contemporaneousness, and declarations made after the occurrence, however brief the interval of time, are excluded as "narrative." Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; State v. Butler, 185 N.C. 625, 115 S.E. 889; Hill v. Aetna Life Insurance Co., 150 N.C. 1, 63 S.E. 124. Other cases emphasize spontaneity and admit utterances made after the occurrence but before there has been opportunity to fabricate. State v. Smith, 225 N.C. 78, 33 S.E.2d 472; Young v. Stewart, 191 N.C. 297, 131 S.E. 735; State v. Spivey, 151 N. C. 676, 65 S.E. 995. The effect of the time element in a particular case depends largely upon the particular circumstances involved.
The decision of the Supreme Court of the United States in Travelers' Ins. Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437 (1869) established a more liberal trend in dealing with the time element in accident cases. There, the insured got out of bed about midnight, and shortly thereafter his son found him downstairs in a reclining position and asked him what was wrong, and insured said he had fallen downstairs and was badly hurt. He went back upstairs and told his wife he had fallen down the back stairs and almost killed himself, that he had hit the back of his head in falling. Insured died a few days later. The wife, beneficiary, sued for accident benefits of a life insurance policy. The Court ruled that the declarations of insured to his son and wife were admissible.
The opinion in the Mosley case exerted a powerful influence in expanding the concept of res gestae in accident cases and is now followed in a majority of jurisdictions. Some typical cases are: Miser v. Iowa State Traveling Men's Ass'n, 223 Iowa 662, 273 N.W. 155 (1937); National Life & Accident Ins. Co. v. Hedges, 233 Ky. 840, 27 S.W.2d 422 (1930); Standard Accident Ins. Co. v. Baker, 145 Okl. 100, 291 P. 962 (1930); Bulkeley v. Brotherhood Accident Co., 91 Conn. 727, 101 A. 92 (1917); Meyer v. Travelers' Ins. Co., 130 Minn. 242, 153 N.W. 523 (1915); Starr v. Aetna Life Ins. Co., 41 Wash. 199, 83 P. 113, 4 L.R.A., N.S., 636 (1905); Puls v. Grand Lodge, A. O. U. W., 13 N.D. 559, 102 N.W. 165 (1904). The Mosley case was at first criticized in some quarters as being a bootstrap operation, that is, that the court admitted in evidence a narrative to prove the accident itself, when the admissibility of the narrative was conditional upon the accident having happened. 163 A.L.R. 203. This criticism is not valid, for by this reasoning contemporaneous statements, otherwise competent, would in many instances be inadmissible. For example, consider the circumstances in State v. Smith, supra, and Means v. Carolina Central R. R. Co., 124 N.C. 574, 32 S.E. 960, 45 L.R.A. 164.
The generally accepted rule now is that "If the utterance tends to elucidate the occurrence, if it appears in its nature, manner and circumstances to have been so responsive to the mental impact of the accident as to be but an unconsidered reproduction of what the speaker has seen or experienced, and if it is made so soon after the accident as to render it improbable that perverting motive or false memory has intervened, *30 it is admissible in evidence." 163 A.L.R. 92.
The admissibility of an utterance is of course, a preliminary matter for the judge. If admitted, its weight and credit is for the jury. The ruling of the trial judge on admissibility is subject to review, but in doubtful cases should be given much weight. 163 A.L.R. 92, 93. See also Swinson v. Nance, 219 N.C. 772, 777, 15 S.E.2d 284. The utterance should be regarded as presumably inadmissible. In determining whether the presumption has been overcome and whether the utterance is admissible the court should consider the time, place and content of the utterance, whether it was voluntarily made, motive for fabrication, condition of declarant, and corroborating circumstances. The time should not be so remote as to permit the declarant to reflect and fabricate and his statement to lose the quality of spontaneity. The utterance should be made under the influence of the accident. "What the law altogether distrusts is not after-speech but after-thought." Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18, 26 (1890). Ordinarily a response to a question is less trustworthy than a voluntary statement. A declaration made at the place of the occurrence is more likely to be influenced thereby than one made at a place substantially removed therefrom. Consideration should be given to those circumstances which motivate the utterance. It is important to consider whether declarant was under stress, emotion or pain brought on by the occurrence, or whether the declaration was made in a state of repose. An important consideration is whether the utterance is the narrative of an uncorroborated chain of events, or whether it is explanative of events otherwise in evidence. See 130 A.L.R. 302-310; Meyer v. Travelers' Ins. Co., supra.
Tested by the foregoing factors, it is our opinion that the statement of Hargett was competent and admissible. He made the declaration about two minutes following the occurrence, at or in close proximity to the place the event occurred. It was made voluntarily and not in response to questioning. Declarant was suffering severe pain, and the statement was made under the stress and in explanation of the pain. There was no apparent motive to fabricate. There was nothing to indicate that Hargett thought he was going to die or considered that insurance benefits were involved. It was not a narrative of a chain of events, but was a voluntary statement of a single fact in explanation of a perfectly obvious set of circumstances capable of proof by other evidence. The declaration was such as would be accepted by others without question in the ordinary affairs and experiences of mankind.
Defendants contend, with some plausibility, that the doctrine of the Mosley case has been rejected by this Court. We have twice cited Mosley with approval in inapplicable cases. Merrell v. Dudley, 139 N.C. 57, 51 S.E. 777; State v. Whitt, 113 N.C. 716, 18 S.E. 715. In Bumgardner v. Southern Ry. Co., 132 N.C. 438, 441, 43 S.E. 948, 949, the Court, discussing the opinion in the Mosley case, said: "But however inclined we may be to adopt those views if the question was new, we think the numerous decisions of our court on the subject would prevent us." This was pure dictum. The declaration by the by-stander in the Bumgardner case, made after the occurrence, would not have been competent in any event. It was a narrative of events antecedent to the main occurrence and was in part a statement of opinion.
Defendants insist that Hill v. Aetna Life Insurance Co., supra, is indistinguishable from the instant case. Accident insurance was involved. Witness, just as a passenger train passed, saw deceased struggling and falling along beside the train, "ran there as quickly as he could, rolled the man over on his face, and commenced to talk to him." The injured man stated the circumstances leading up to and causing his injury. The Court refused to permit the witness, who had been called by defendant, to relate deceased's statement, and held that it "was *31 not exclamatory, but narrative, and therefore hearsay and incompetent." The facts are similar to those in the Mosley case, but there are important differences. Mosley's statement related the main fact, the injury and its immediate cause as an explanation of his suffering; in Hill the immediate cause of the injury was obvious to the witness without any explanation, deceased's statement narrated his antecedent conduct and the events leading up to the main fact. The instant case is also significantly different. Hargett's statement related only to the main fact which explained his suffering, not to antecedent matters. It is not a narrative of a chain of events; it was explanatory of events already known and undisputed. Furthermore, the statement was voluntary and instinctive and not in response to questioning. We do not overrule the Hill case. In this jurisdiction cases are to be decided according to the circumstances involved.
Defendants concede that, if Hargett's death was caused by insect bite or sting, his death resulted from bodily injuries through external, violent and accidental means, and accident benefits are payable to beneficiary.
Even if insured's statement to Turner and Jones is excluded, there is competent evidence that death was caused by insect sting. In answer to a hypothetical question Dr. McMillan stated: "My opinion is that death resulted from an insect sting."
But defendants maintain that the answer of Dr. McMillan is insufficient and violates the rule (20 Am.Jur., Evidence, s. 787, p. 661) that "An opinion of an expert must be based upon facts, proved or assumed, sufficient to form a basis for an opinion, and cannot be invoked to supply the substantial facts necessary to support that conclusion." Defendants contend that the doctor's opinion supplies the immediate cause of the injury which is a fact necessary to support his conclusion. We do not agree that the rule was violated. The facts in evidence, including defendant's prior good health, his conduct at the time of the occurrence, the condition of his finger, his suffering, the lapse into unconsciousness, and his death shortly thereafter, coupled with the professionally established facts testified to by the doctor expert, were sufficient predicate for the conclusion reached by the witness. The hypothetical question was in proper form, included only such facts as were in evidence, and the facts were a sufficient hypothesis for the answer given. Stansbury: North Carolina Evidence, s. 137, pp. 270, 271; State v. Smoak, 213 N.C. 79, 195 S.E. 72; Bailey v. City of Winston, 157 N.C. 252, 72 S.E. 966.
The court erred in allowing the motion for nonsuit.
The judgment below is
Reversed.