Bodholdt v. Garrett

California Court of Appeal Apr 14, 1932 No. Docket No. 8135.Published

Before: Ward

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Holding. The court held that an employee's statement made after an accident is not binding on the employer if it is not part of the res gestae, and that the doctrine of res ipsa loquitur does not apply to claims under the 1923 statute absent evidence of actual or constructive notice to authorities.

Issues

Whether an employee's post-accident statement is admissible against the employer as part of the res gestae.
Whether the doctrine of res ipsa loquitur applies to claims under the 1923 statute regarding defective public property.
Whether the trial court may exclude incompetent evidence on its own motion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Statements of an employee not part of the res gestae and not made spontaneously or as the result of excitement of the accident are not binding upon the employer.”

“The court on its own motion, in the interest of justice, may exclude incompetent and inadmissible evidence.”

“To rule that the doctrine of res ipsa loquitur applies in any case brought under the provisions of Statutes of 1923, page 675, would result in nullifying the intent of the legislature”

WARD, J.,

pro

tem.

These consolidated cases are actions for damages for certain personal injuries, brought under section 2, chapter 328, of the Statutes of 1923, page 675, which provides, in substance, that counties, municipalities, etc., shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public property where the officers having authority to remedy such condition had knowledge or notice of the defective or dangerous condition and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to take such action as might be necessary to remedy the condition or protect the public against such danger.

One of the plaintiff’s witnesses, immediately after the accident, inquired of an injured plaintiff as to his condition and thereafter walked across the street to interview the defendant Garrett. By question and answer the witness elicited the information from Garrett, the truck driver in the employ of the city, that the collision was due to a broken spring on the front portion of the truck. Appellants complain that the trial court erred in instructing the jury that this statement or admission of the driver was in no way binding upon the defendant City of Oakland.

[569]

Statements of an employee not part of the

res gestae

and not made spontaneously or as the result of excitement of the accident are not binding upon the employer.

(Shaver

United Parcel Service,

90 Cal. App. 764, 770 [266 Pac. 606].) While it is true that time is not the controlling element in the matter of

res gestae,

still the statements must be not only contemporaneous, but voluntary and the result of excitement, and made before a person has time to calculate and consider the form and substance of the explanation. There is no evidence in this case to indicate that the particular statement was caused by excitement, and hence the ruling of the trial court cannot be disturbed.

Bodholdt v. Garrett

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WARD, J.,

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