129 Minn. 271 | Minn. | 1915
Plaintiff and defendant are neighboring farmers. One day in December, 1914, plaintiff overtook defendant on a country road.. Plaintiff, with several members of his family, was driving in a light two seated surrey. Defendant was driving in a loaded lumber wagon. The parties had not been on good terms for some time and it is claimed that, as plaintiff passed, something occurred to anger defendant, and that he followed, yelling and lashing his horses, and
The action is for assault.
Of course it is not generally proper to bolster up the testimony of a witness by parol evidence given by himself or anyone else that he made similar statements on a previous occasion. But this rule has its exceptions. A statement or exclamation of a person who is the victim of a wreck or collision or other exciting occasion, made immediately after the occurrence, and declaring the circumstances of it as observed by him, may be used testimonially as an assertion to prove the fact asserted. This is an exception to the general hearsay rule. The exception is based on the common experience of men that, when a person is under circumstances of physical or mental shock, a stress of nervous excitement may be produced such that the mind is for the time being controlled by the event, and such that considerations of self-interest are eliminated, and words are forced out without will and -without fair opportunity to mould or modify them. United States v. King, 34 Fed. 302, 314. Such statements when given in evidence derive their credit, not from the veracity of the speaker, but from the circumstances which prompted the
In determining whether the statement made is part of the res gestee, within these rules, the trial court has a wide range of discretion. O'Connor v. Chicago, M. & St. P. Ry. Co. 27 Minn. 166, 6 N. W. 481, 38 Am. Rep. 288; Delaware, L. & W. R. Co. v. Ashley, 67 Fed. 209, 14 C. C. A. 368; Omaha & R. V. R. Co. v. Chollette, 41 Neb. 578, 586, 59 N. W. 921; Johnson v. State, 129 Wis. 146, 108 N. W. 55, 5 L.R.A. (N.S.) 809, 9 Ann. Cas. 923. If the statement is made under circumstances bringing it within the rule of res gestee, it is competent whether favorable or unfavorable to the person making it, since it is received, not as an admission, but as testimonial evidence. Rogers v. Manhattan Life Ins. Co. 138 Cal. 285, 71. Pac. 348; Vicksburg & Meridan R. Co. v. O’Brien, 119 U. S. 99, 106, 7 Sup. Ct. 118, 30 L. ed. 299. It may describe the circumstances of the accident such as “I fell over these old planks” (Murray v. B. & M. Railroad, 72 N. H. 32, 54 Atl. 289, 61 L.R.A. 495, 101 Am. St. 660; Insurance Co. v. Mosley, 8 Wall. 397, 19 L. ed. 437), or it may describe or name the person responsible for it, as “Here is the man who did it” (State v. Duncan, 116 Mo. 288, 292, 310, 22 S. W. 699; Commonwealth v. Hackett, 2 Allen, 136; State v. Horan, 32 Minn. 394, 20 N. W. 905, 50 Am. Rep. 583). It may be made by one not. injured, even by a bystander, for the nervous excitement which renders it admissible may exist in a mere bystander as well as in the person who is an actor in the affair (3 Wigmore, Ev. § 1755; State v. Duncan, 116 Mo. 288, 22
Order affirmed.