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Burwell v. Crist

filed: February 2, 1967.


Ganey, Smith and Freedman, Circuit Judges.

Author: Ganey

GANEY, Circuit Judge:

This matter comes before the court on an appeal from the denial by the lower court of a motion for a new trial.

The defendants were the operators of a camp for children, known as Mountain Lake Camp, in Fannettsburg, Franklin County, Pennsylvania.

Sometime in the early summer of 1963, Jill Burwell, aged 11 years, entered the camp, which was co-ed, composed of a number of other children. Her parents selected the Mountain Lake Camp as a summer camp for their child because, as the decedent's father testified, they had examined the brochures from various camps and picked Mountain Lake out of all the others "and I liked the things it said, the things it said about the care of children, the things it said about Mr. Crist and Mrs. Crist and their qualifications." The father and mother drove Jill to the camp, placed her therein and, additionally, authorized the authorities to give her riding lessons, for which an extra fee was charged by the camp. When they left her at the camp, Jill was in a perfect state of health, having brought to the camp with her a certificate of physical fitness. Her parents never saw her after they left her at the camp until she was brought home dead. Mr. and Mrs. Burwell, the decedent's parents, never received any explanation or description of the way Jill met her death from either Mr. or Mrs. Crist, who were the owners and operators of the camp. It was further testified that when the child was brought to the dispensary of Chambersburg Hospital, accompanied by an individual from the Mountain Lake Camp, the doctor who treated her upon arrival testified that he was told by a nurse that the child had been kicked by a horse and that the cause of death was a fracture of the base of the skull. There was no objection offered to this testimony. One of the defendants, Thomas V. Crist, called on cross-examination, testified that, at the time of the accident, one John Armogost was the riding instructor at the camp and that he, Armogost, had advised him that he was present when the fatal accident occurred.

Robert W. Filer, a Pennsylvania State Policeman, who came to the camp because he was making an official investigation as to the cause of Jill's death, testified that he went to Mrs. Crist, co-owner of the camp with her husband, and she took him to the riding arena where she introduced him to Armogost, and he proposed to testify that he questioned Armogost, the riding instructor at the camp, in the presence of Mrs. Crist and that she was present during the conversation he had with Armogost when the discussion started, although he could not say how long she remained. The subject matter of the conversation which Armogost had with the State Policeman was as follows: That the decedent, Jill Burwell, had watered her horse and was walking in an eastwardly direction on the left side of the horse with the bridle in her right hand; that as she was walking away from the water trough another camper riding a horse named "Sonny" passed her on the north side; that he heard a thud and when he looked, he saw Jill lying on the ground and that the horse had kicked Jill. The court rejected the admission of this testimony as hearsay and, accordingly, it was disallowed. We think this was reversible error. Here, the State Trooper, upon arrival at the camp, went to the highest person in authority, one of the co-owners, Mrs. Crist, and she directed him to the riding instructor who had witnessed the accident in order to find out what caused Jill's death as he was making an official investigation. Mrs. Crist not only directed the Trooper to one present at the incident and who had knowledge of it, but accompanied him to the riding arena, where her riding instructor, Armogost, was interviewed by the State Policeman while she was there, during part of the conversation. It is submitted that here the owner of the camp, Mrs. Crist, by her direction of Policeman Filer to Armogost who knew of the happenings of the incident and who was riding instructor and was in charge of the horses at the camp, and, furthermore, since she accompanied the Policeman to the riding arena to meet Armogost, and stayed, at least a portion of the time while the State Policeman was interviewing him, showed that she made Armogost her agent for the purpose of informing the Policeman concerning what had occurred. Further, her conduct, in so doing, if it was not tantamount to making Armogost her agent to speak on her behalf of the incident, she was at least bound by the conversation since she was there at least during a part thereof. Baker v. Westmoreland & Cambria Natural Gas Co., 157 Pa. 593, at 600, 27 A. 789.

In 31A C.J.S. Evidence ยง 352, it states: "Admissions by a third person acting in accordance with his authority are admissible against one who has expressly referred another to such third person for information with respect to an uncertain or disputed fact. A declaration competent as an admission may be made by one to whom the party to be affected by it has sent another for information on a given point, where the person to be affected has indicated that declarant is authorized to speak for him, as under such circumstances a relation of agency within the scope of the reference is established." General Finance v. Stratford, 71 App. D.C. 343, 109 F.2d 843.

There was further evidence that there were seven or eight horses riding that evening and Eleanor Wiemand, who had been at the camp two weeks before the date of Jill Burwell's death, testified that she was right with the horses and observed one of the horses lash out violently once or twice at another horse and, when questioned further as to what "lash out" meant, she replied, "Well, really kick, you know, kick at another horse. I thought the horse would drop the one it had kicked." She reported the episode to one of the employees at the window of the camp nearby.

Helen Simmons testified that she had been a student at Wood College at Frederick, Maryland, was in her junior year and was 21 years of age when she was in charge of the riding program at Mountain Lake Camp with one boy assisting her, and that she had left approximately two weeks before this incident at the camp. She testified that the horse, "Sonny", which kicked the decedent, was a good horse, but, upon being permitted to cross-examine her, because of a prior contradictory statement, she testified that the horse, "Sonny", reacted, when approached by another horse, as follows:

"A. If a horse got too close to her and bothered her she would kick.

Q. What do you mean by if a horse got close to her and bothered her?

A. Well, if a horse sniffed at her, rubbed her, or made an approach as if to bite her, then she would kick."

She further testified that one day when riding "Sonny" a horse came up behind her too close and she lifted one of her legs as if to kick, but the horse did not actually lash out and kick. She testified that if the horse had really kicked, she would have landed on the ground.

Mrs. Crist, one of the co-owners, said that she never had any conversation about the condition of the horses and was rather vague about any discussion concerning their being overworked, although Miss Simmons had testified that previously she had objected to the owners ...

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