90 P.2d 1050 | Okla. | 1939
This is an action by Mae Garrett, administratrix, for the wrongful death of Charles I. Garrett, who was fatally injured in an automobile accident in Comanche county. Defendants are Otto Wray, operator of a trucking business, Emmitt Meeks, his truck driver, and Employers Casualty Company, the insurance carrier. Defendants Wray and Meeks resided in Caddo county and plaintiff is a resident of Jackson county, where this action was instituted. Defendant insurance company, a foreign corporation, is the insurer in the policy of insurance filed with the Corporation Commission as a prerequisite to the issuance to defendant Wray of a class B operator certificate. Service was had upon the insurance company by serving the State Insurance Commissioner, and service was had on the two individual defendants by personal service in Caddo county. The jury returned a verdict for plaintiff, on which judgment was entered. Defendants appeal.
1. The first contention of defendants is that the venue was not in Jackson county.
It is settled in this jurisdiction that the liability for personal injuries or property damage caused by the negligence of a motor carrier, operating under a certificate of convenience and necessity, and the insurance carrier, under sec. 3708, O. S. 1931, as amended by section 4, ch. 156, S. L. 1933 (47 Okla. St. Ann. sec. 169), is joint, and a single cause of action may be maintained against them. Enders v. Longmire (1937)
It is further argued that even though the defendants are jointly liable, nevertheless there is no statute which permits the maintenance of an action in the county of plaintiff's residence against a foreign corporation and an individual resident defendant who does not reside in the county of plaintiff's residence. However, it is settled that an action against two or more defendants jointly liable may be maintained against such defendants in any county that is proper venue for any one of the defendants. Section 117, O. S. 1931 (12 Okla. St. Ann. sec. 139); sec. 167, O. S. 1931 (12 Okla. St. Ann. sec. 154); Fisher v. Fiske (1923)
In view of our statutes and decisions in the matter, the cases from other jurisdictions relied on by defendants are not pertinent. It follows from the foregoing rules of law that this action is maintainable in Jackson county.
2. It is next contended that the court erred in admitting certain hearsay evidence on the theory that it was part of the res gestae.
The facts in this connection are as follows: The accident occurred at 9:30 in morning on a bridge. Charles I. Garret was left on the floor of the bridge where he had been thrown for about 45 minutes, during which time he conversed with bystanders, and in answer to questions told his name and where he was from. Several times he asked to be moved to relieve the pain in his back. Thereafter, he was taken in an ambulance about ten miles to a hospital, where he talked with his daughter and where he was given first aid treatment to *140 relieve his pain. While he was in the hospital, about three hours after the accident, he was asked the cause of the accident, and in reply made the statement objected to, that is, that "the fellow would not give him time to get across the bridge," and "that guy saw me coming and wouldn't wait until I got off."
The evidence is that at the time he was making these statements he was either conscious or semiconscious. It is not contended that he was totally unconscious, and there is no evidence that his semiconsciousness was of such extent that he could not comprehend what had happened.
We think it clear from the undisputed evidence that the statement was not made while Garrett was still under the dominating influence of shock and excitement, but rather it was simply a narration of past events, deliberately made in answer to a question propounded.
Much has been written on the subject of res gestae, and no definite rule can be stated, but rather the admissibility of such statements must depend upon the particular circumstances of each case, and in a great measure is left to the discretion of the trial court. Marland Refining Co. v. Snider (1926)
Other questions are discussed in the briefs, but, in view of our conclusion that the judgment must be reversed, we do not deem it necessary to discuss them.
Judgment reversed, with directions to grant a new trial.
BAYLESS, C. J., and RILEY, CORN, and DANNER, JJ., concur.