*1 prescribes preventative fact the new The Act practices procedure against unfair labor organizations recognition an additional of labor disapproval practices. congressional such Such express recognition an increased an is consistent with upon liability organizations for insistence such immunity and inconsistent with their tortious conduct damages liability by their for caused tortious from practices. point decision must we out be reversed, rather than taken,
that after evidence was dismiss upon preliminary complaint objections, court including damages have found the facts, should plaintiffs and heard the be- suffered, case court en banc for final which event action, fore judgment plaintiffs entered for have un- could we findings. go theAs case now stands must der findings of fact conclusions of for law. back the costs Decree to abide reversed, the event. Mtjsmanno Justice dissents. Mr. Weshalek v. Appellant. Weshalek, *2 J., Before O. October Argued Stern, 1954. 1, JJ. Musmanno Arnold, Chidsey, Stearns, Jones, Brandon, Millar, him Brandon, Campbell J. for appellant. MaeFarlane, & Boehenstein Kiester P. him George DiFraneeseo, with B. Samuel appellees. for Gilchrist, & Coulter Kiester, Opinion by Me. M. No- Justice Allen Stearne, vember 1954:
The is for appeal judgment from a in an plaintiff action trespass out of an automobile acci- growing dent involving collisions of three motor vehicles. Three injuries deaths resulted and serious were sustained the remaining Six occupants. actions were consoli- for dated purpose present appeal. Counsel stipulated that decision in this case should be bind- to all the other ing determinative judgments. question whether not a made one statement, of the defendants policeman state after the acci- dent, properly admitted as the res gestae. The collision involved two tractor and trailer *3 trucks and an automobile. One tractor and trailer was passing another tractor and trailer while proceeding in the same direction down a slight grade westwardly on Eoute a three lane 422, about three highway, miles of west the of Butler. in City Approaching op- the posite direction an was automobile which were three adults five children. The evidence of ac- how the cident happened circumstantial with the exception of res the alleged gestae statement made the driver by of of the one trucks. The parties ren- surviving were dered incompetent under the of testify Act May 23, P. L. sec. 322. It 158, 5, PS was alleged the automobile veered its left to an such extent it first collided the truck and then passing struck truck being passed. the The automobile was found the center lane of the three lane the highway, passing truck was found rail against guard on the opposite of the its side road. other wrong The truck which being passed was was on side found its down an em- bankment on the opposite or its left side of the road. The automobile and the truck fire and passing caught burned. Killed in the accident were the driver of automobile remaining of the children. The two occupants injured the car all and were were present plaintiffs rep- in this action with the personal resentatives children. The par- two deceased ties defendant are the d.b.n. of the es- administrator tate the driver of automobile J. H. Sprecher, Inc. and John respec- the owner and driver, Krall, of the tively, tractor and trailer doing the ad- passing. jury rendered a against verdict ministrator d.b.n. of the of the estate of the driver automobile and Inc. and exonerated J. H. Sprecher, John the truck above Krall, owner driver of mentioned. in the admission at Claiming error trial of a statement made John defendant Krall, so of the deceased the administrator d.b.n. exonerated, driver of the automobile appeals.
William J. a state arrived Steiner, officer, at scene of twenty-five the accident approximately minutes after In investigation had occurred. his he noted Krall rail the side sitting guard of the road. in very Steiner “He was bad testified: He shape. didn’t have clothes outside of a any on, pair and he was them front of trousers, holding him. His face hair all burned severely burned, with the off, exception of a of an inch remain- quarter and it was all further ing, The officer testi- singed.” *4 fied that Krall eyes was not able to see very well, were swollen and his burned that eyelashes off; were he Krall him placed car to take to the police that he tried to a blanket over but hospital, place him, to impossible found so do because “the pain to the hospital kept too he terrific”; way Krall “. . . and he would asking questions, answer as could. I him best he asked what and he happened, objection explain.” tried to Over defend- officer was allowed testify counsel to ants’ to the I him hap- statement: “A. asked what following and he down pened, going said he was a passing truck, and he this hill, passing was out in the center lane, car direction truck, this from the coming opposite toward him then to the left of the road, swerved back over her to the left as be right; would are you then to the traveling toward back Butler, you are right toward Butler. When she traveling swerved back to her it hit the truck at the right right Q. side. Was there else he said about anything accident? A. He said was all he could remember.”
To have admitted this error. It did testimony was not measure to the up substantive of a requirements spontaneous by utterance deemed the law to have suf ficient In probative force. absence spontaneity or instinctive naturalness such evidence lacks credi In bility. Allen v. A. 2d Mack, 407, 410, this Court defines constitutes a res what gestae declaration. It “. . is: . a declaration spontaneous by a person whose mind has been made suddenly subject to an emotion caused some overpowering unexpected and shocking which that occurrence, person just has participated or closely and made refer witnessed, ence to some of that phase occurrence which he per ceived, this declaration must be made so near the occurrence both in time and place as exclude the likelihood of its emanated in whole or in having part from In his reflective faculties. a res gestae declara tion the exciting speaks event through impulsive of a It is in participant words onlooker. a psy sense, a of the act itself. The chological part apparent condition, of the declarant’s mind the declaration .when the test made is of the latter’s admissibility as a of the res gestae.- To declaration ad make the state mind as missible declarant’s induced of- the occurrence must be the shock such as to in-
549 exclusively declaration tegrate Ms spontaneous the occurrence itself.” as as late approval
This rule has been cited with
The fact
A. 2d 171.
Haas v.
Pa.
92
371
580,
Kasnot,
not
does
to a question
an
utterance is
answer
v.
Powe
or admissible:
make it any
spontaneous
less
Thus tested, ad- not have been should officer to the state being part guise under mitted into evidence as he suffering was, injured res Krall, gestae. on to reflect opportumty sufficient had nevertheless, not statement . The accident. of the happeMng but outburst, or impulsive emotional any . occasioned of. his idea as to narration of a consisted considered Such, a statement given happened. the accident how *6 under such circumstances cannot be considered to have been due to excitement or shock the accident. following The account the obviously was elicited by prodding, antithesis of impulsiveness. order
The for defendant n.o.v. is refusing judgment The affirmed. for judgment plaintiff is reversed and a new trial ordered.
Dissenting Opinion Me. : Justice Musmanno The in Majority Opinion says that order an ut- for terance to be admitted of the res gestae, must be one precludes the possibility pre- of meditation and consideration. The fur- Majority says ther that the of time does passage not invalidate the nor utterance, does the fact it made in answer to a question render it any spontaneous less and ad- in missible evidence. After laying these down indis- putable standards of standards proof, which are over- met whelmingly by the facts in this case, Majority surprisingly declares that the statement made John Krall was inadmissible. This non sequitur is disturb- ing.
The in quoted by the authority Majority of support its unusual could position well be cited to establish of what opposite Majority contends for it. In of case Haas v. Kasnot, circum- were entirely stances dissimilar from those which sur- round the Krall utterance. Chief Justice Horace in writing Opinion for the Court Steen, Haas case reasoned of (without, course, knowing this case come would over the horizon of the future) were the facts there like those we know fact exist the statement would have been here, admissible. Chief Justice Steen said: “There no was testimony show either state of that he or in a was injured, excited, there at bar In the case physical or mental shock.” excitement, injury, overwhelming evidence recita- own Majority’s and mental physical shock. tion of loudly injury, speak vividly facts I quote shock. will physical and mental excitement, ‘He from the testified: Opinion: “Steiner Majority any He have bad didn’t (Krall) very shape. he was clothes outside of a pair trousers, on, severely them in front of him. His face were holding exception his hair all burned burned, off, *7 all singed. a of an inch and was quarter remaining, able Krall not The officer further testified that was his eye- to see and very eyes his were swollen well, in Krall lashes he placed were burned off; that he tried to car to him the take to hospital, found it place impossible a blanket but over him, on the way do because terrific’; ‘the was too pain . . hospital he Krall ‘. kept questions, asking him I asked what he best he could. would answer as ” in Ma- tried to explain.’ (Italics and he happened, jority Opinion) here in horrible state as
Would a Krall’s person coun likely reflect, weigh, described be to deliberate, in some anticipation concoct evidence terweigh times that: many lawsuit? We possible have said the crime “No definite distance from time-limit or to deter the Courts issue can be fixed by event admissible; are mine what utterances spontaneous and circum on its own each case must depend, facts supra; 282 Pa., stances: Commonwealth v. Gardner, A. 56.” 281 Pa. Commonwealth v. Stallone, 41, 145.)* v. (Com. 138, Noble, in this case? circumstances What are the facts and on a State July 1951, high- In the early morning * indicated.) (italics otherwise mine unless
way near Butler, Pennsylvania, a Packard automobile, a truck and a huge tractor-trailer kind used for (the transporting crashed into automobiles) one another with such force and violence that all three vehicles were demolished. The burst into flame and wreckage as a consequence of both the crash and the fire a grown woman and two small children were instantly killed. Five other persons seriously injured. were From the flaming catastrophe John Krall more dead emerged than his clothes alive; had been from ripped his body, his face was a mass what was left of burns, his burned hair he was smoldered, partly blinded, eyes were his eyelashes swollen, were His nude gone. body was so seared and raw with burns and lacerations that he could not stand even the of a blanket —“the weight pain was too terrific.” The police officer Steiner tes- tified that when he arrived on the scene —“The road and as I blocked, broke the hill I over the fire saw truck setting and smoke was road, going air, the road was steam, littered with every- thing you can think there of; clothing; little coaster wagon; and the one basket, suitcases; truck, the car on carrier, was setting guard railing, *8 trailer sticking part out of the way everything road; in a mess.”
From this disaster and John Krall horror, was lifted into a car to be taken to the hospital. The offi- cer rode him with and asked to questions which Krall answers. To gave assume that while in this torture of misery and intolerable pain, Krall hurt, capable of a is fabricating story simply defy to physical reali- ties and to ascribe to the human brain a deviousness entirely out of human keeping with experience and ob- of John picture servation. Krall without cloth- stunned and his whole ing, bleeding, body undergoing is indescribable one which suffering negatives every
553 answers. and calculated of replies invented suggestion be only it could If mental worked any faculty phonograph as a simply and it functioned memory state a trance-like table of record on the being spun re- His questioning. the officer’s under the needle of as spontaneous and could be automatic sponse only blow. or wound lacerating as a from a cry pain statement that Krall’s Opinion says The Majority impulsive emotional not by any “was occasioned narration of a considered but consisted outburst, There is happened.” the accident idea to how as can substantiate a in the record which not word that Krall’s statement Majority conclusion of the Rys. v. Pittsburgh In Powe a “considered narrative”. recognized “It is well said: we 533, 536, Co., the res gestae idea of matters within judicial than our American decisions under rule is broader employed interpretation restricted very under . . . on page Chapman Evidence, Courts: English contemporaneous strictly ‘That must be utterances to be within rule, with the exciting cause, fal there is to it provided they subsequent be may lacy1 its sway to lose influence not time for the exciting there is no Furthermore, . . . dissipated be definite its depend upon must time. Each case limit of fixed . . .” section facts’: supra, own Wigmore, of res subject said much has been Although recurring constantly keeps gestae, question limits falls within utterance a given whether can speak No one salutary rule. the indicated yet field of the law, in this infallible wisdom is one which be resolved problem that the seem would : natural most' to the to respond not fail should of the circumstances Were namely, inquiry, normal aof shrewd possibility as to preclude case such testimony As I read *9 answer? self-calculating this I am to replies convinced John Krall’s case, the questions advanced officer were of devoid as those of a man guile from coming lips in I extremis. can much reassurance this con gain from clusion this said in the case reading what Court of Com. v. Pa. mere fact 336: “The Harris, statement of the victim to a response did not question mvoluntary make and did not de stroy that of is the characteristic a spontaneity which res gestae When suddenly declaration. meets anyone a has he person just severely who been natu injured, rally asks: What you?’ Who shot happened you?’ and when the latter immediately his statement replies, no more open of a fabrication charge being than the same statement would if there had been be no question asked. It be would a unwarranted totally to the handicap justice administration if res of gestae which are of declarations, usually great probative value, were excluded because a natural simple, ques tion put to the fatally injured victim a min few after utes the occurrence of the tragic event. Victims of unexpected assaults are not likely while suffering a agonies of just murderous assault made upon them to fabricate a lie as to the of their identity as sailant. The real test a admissibility dec laration as res is whether gestae circumstances under which it was made were such as pre seem to premeditation clude design declarant. declaration made the instant case grievously a assaulted at the place of the man, as only sault apparently few moments after it was made while assailant was apparently still met the fully test nearby, admissibility. The dec laration obviously directly emanated from the percep tions of the victim while his mind was still under the domination of shock of the sudden assault. At that *10 not be likely moment he would tragic fabricate what had respect he just experienced, falsehood a time considerations calculated policy at such for in the ascendant.” are not Kennedy. Appellant, v.
Jenne, Before J. 1954. C. October Argued Steen, JJ, Musmanno Ohidsey, Aenold, Jones, Steaene,