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THOMPSON v. PHILADELPHIA (09/19/72)

decided: September 19, 1972.

THOMPSON, APPELLANT,
v.
PHILADELPHIA



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1963, No. 723, in case of Alice Thompson, administratrix of the estate of Kenneth Dickerson, deceased v. City of Philadelphia.

COUNSEL

Melvin Brookman, with him Joseph D. Shein, and Shein, Mele & Brookman, for appellant.

Howard D. Scher, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Concurring Opinion by Hoffman, J. Concurring Opinion by Packel, J.

Author: Cercone

[ 222 Pa. Super. Page 418]

Kenneth Dickerson on September 27, 1963 had filed an action in trespass against the City of Philadelphia for injuries sustained on September 17, 1963 as the result of negligence by a City of Philadelphia employee in the operation of a trash collection vehicle. Dickerson, approximately 82 years of age, died shortly thereafter on October 1, 1963 and at the time of trial, May 27, 1971, the caption of the action was amended so as to substitute the administratrix of his estate, Mrs. Alice Thompson, as plaintiff. Permission to include in the complaint a claim for funeral expenses was, over defendant's objection, also granted. No wrongful death action was instituted.

The jury returned a verdict for the plaintiff in the amount of $13,000 for pain and suffering, $12,000 for loss of earnings, $700 for hospital expenses, and $758 for funeral costs. The City filed a motion for new trial which was granted by the court below. The administratrix

[ 222 Pa. Super. Page 419]

    has appealed to this court from that grant of a new trial.

It was the lower court's view that the trial court had improperly admitted, as part of the res gestae, a statement made to a police officer by the decedent in the hospital x-ray room one hour after he had been struck. The police officer testified that decedent told him: "I was crossing from the West to the East side of 21st Street. I saw the truck. I saw it back up. I couldn't get out of the way. It hit me. My left hip hurts."

It was the lower court's view that this testimony was improperly admitted as part of the res gestae because: "No showing that Dickerson's statements were occasioned by any emotional or impulsive outbursts but only that plaintiff was in pain. His statement to the officer was thus merely a narration of his idea as to how the accident happened."

We cannot agree with the lower court's analysis and application of the law governing the admissibility of statements as part of the res gestae. There is no requirement that the proffered statement be an emotional or impulsive outburst, and no rule which prevents, per se, "a narration of his idea as to how the accident happened" from being part of the res gestae. The test to be applied in determining the admissibility of the statement, whether or not made in emotional outburst or in narrative form, is in every case that stated in Campbell v. Gladden, 383 Pa. 144, 147-48 (1955): ". . . Were the circumstances of the case such as to preclude the possibility of a shrewd and self-calculating answer? In the case at bar would a person in Campbell's condition as above ...


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