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Death of Res Gestae and Other Developments in Missouri Hearsay Law, The Missouri Law Review Volume 60 Issue 4 Fall 1995 Article 8 Fall 1995 Death of Res Gestae and Other Developments in Missouri Hearsay Law, The Amanda Bartlett Mook Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Amanda Bartlett Mook, Death of Res Gestae and Other Developments in Missouri Hearsay Law, The, 60 MO. L. REV. (1995) Available at: https://scholarship.law.missouri.edu/mlr/vol60/iss4/8 This Note is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Mook: Mook: Death of Res Gestae The Death of Res Gestae and Other Developments in Missouri Hearsay Law Bynote v. National Super Markets, Inc.' I. INTRODUCTION Res gestae is a Latin term that has had many meanings in American courts. Courts have used it when referring to a variety of hearsay exceptions, such as the excited utterance exception, the present sense impression exception, the verbal part of the act doctrine, and statements of mental or physical condition.2 In Bynote v. National Super Markets, Inc., the Missouri Supreme Court determined that the use of the term res gestae should be abandoned in favor of the specific hearsay exceptions it has covered.' The court also held that any requirement of executive capacity to meet the vicarious admission of a party-opponent hearsay exception should be abandoned.4 In addition, the court reviewed Missouri law pertaining to the state of mind and excited utterance hearsay exceptions.' II. FACTS AND HOLDING Cynthia Bynote brought this negligence action against National Super Markets ("National"). 6 Bynote entered one of National's stores to do some grocery shopping on February 12, 1989. As she approached the checkout counter with her groceries, she slipped on some liquid on the floor and fell,8 injuring her back.9 Bynote remained on the floor for a few minutes as she tried to collect herself." While she was still on the floor, a uniformed bagger approached and asked if she was okay." According to Bynote, a 1. 891 S.W.2d 117 (Mo. 1995). 2. See infra notes 45-49 and accompanying text. 3. See infra notes 30 and 123 and accompanying text. 4. See infra note 140 and accompanying text. 5. See infra notes 124-134 and accompanying text. 6. Bynote, 891 S.W.2d at 119. 7. Id. 8. Id 9. Id. at 125. 10. Id. at 120. 11. Id. Published by University of Missouri School of Law Scholarship Repository, 1995 1 Missouri Law Review, Vol. 60, Iss. 4 [1995], Art. 8 MSSOURILAW REVIEW[ [Vol. 60 checker then came around the counter and said to the bagger, "I told you to get that water up."' 2 The bagger answered, "I did."' 3 The checker replied, "Well, I can see the suds from here."' 4 Both the bagger and the checker then walked away, leaving Bynote on the floor.15 When she got up, she could see water on the floor, and she realized her hands and the seat of her pants were wet. 6 She paid for her groceries and left without speaking to a manager. 7 Bynote reported the accident to the store manager a couple of days later. 8 The manager checked with the assistant manager who had been on duty when the accident occurred. 9 He said he had no knowledge of Bynote's fall.2d The manager testified that it is part of a bagger's duties to cleanup spills, and any employee could tell a bagger to clean up a spill.2 The bagger and the checker were not deposed and did not testify.22 National filed a motion for directed verdict.' The motion asserted that Bynote failed to make a submissible case because (1) her testimony concerning the statements made by National's employees was not admissible, and (2) without that testimony, Bynote could not show that National knew, or by using ordinary care should have known, of the dangerous condition.24 Bynote argued that the testimony is admissible under at least one of three possible exceptions to the hearsay rule: State of mind, excited utterance, or admission of a party-opponent. The trial court allowed Bynote s testimony, over National's objection, based on the exception to the hearsay rule for excited utterances.2 The jury returned a verdict for BynoteY The Eastern District Court of Appeals found that Bynote's testimony as to the statements of the bagger and checker was inadmissible hearsay, and, 12. Id. 13. Id. 14. Id. 15. Id. 16. Id. 17. Id. 18. Id. 19. Id. 20. Id. 21. Id. 22. Id. 23. Id. 24. Id. 25. Id. 26. Id. 27. Id.at 119. https://scholarship.law.missouri.edu/mlr/vol60/iss4/8 2 Mook: Mook: Death of Res Gestae 1995] MISSOURIHEARSAY LAW 993 therefore, Bynote did not make a submissible case.2' The court reversed the judgment below.29 The Missouri Supreme Court accepted transfer. The court first stated that the term res gestae would no longer be recognized as a hearsay exception.3" The court then found that Bynote's testimony was not admissible under the state of mind exception,3' holding that when the statement showing notice is made after the incident in question, it is not admissible.32 As to the argument that Bynote's testimony should be allowed under the excited utterance exception to the hearsay rule,33 the court held that when the out-of- court declarant did not witness the startling event and the declarations were not pertaining to the incident itself, they are not admissible as excited utterances.34 The court determined that the statements of the bagger and checker were vicarious admissions of a party-opponent.35 As such, Bynote's testimony was admissible, and she made a submissible case.36 The court held that when an employee or agent makes an admission while acting within the scope of his authority, that admission is admissible against the employer or principal.3 7 Ill. LEGAL BACKGROUND A. Res Gestae as a HearsayException Res gestae38 is a Latin term meaning literally "the thing done"39 or "a transaction. '40 The term has been used by courts since the late eighteenth century.41 It applied to statements made contemporaneously with conduct at 28. Id. 29. Id. 30. Id. at 121. 31. Id. at 122. 32. Id. 33. Id. at 122-23. 34. Id. 35. Id. at 124. 36. Id. 37. Id. 38. Also referred to as resgestaand res acta. 6 WIGMORE oN EV]DENCE § 1767 (Chadbourne rev. ed. 1976). 39. WIGMORE, supra note 38, § 1746. 40. WIGMORE, supra note 38, § 1767. 41. Id. Published by University of Missouri School of Law Scholarship Repository, 1995 3 Missouri Law Review, Vol. 60, Iss. 4 [1995], Art. 8 MISSOURILAWREVIEW [Vol. 60 issue. 2 When a court applied res gestae, it would say something like, "What was said by the agent relating to such transaction ... will be received as evidence against the principal, as part of the 'res gestae'."43 Professor Thayer found that this use of resgestae probably arose due to confusion in the law of hearsay. The "convenient obscurity" of the phrase allowed courts to use it as a "catch-all" when they wanted to allow hearsay to come in but did not know which specific exception should apply.4 Over the years, res gestae has been used to refer to numerous principles of admissibility of evidence. The most common applications include the hearsay exceptions for spontaneous exclamations, including excited utterances and present sense impressions;45 the verbal part of the act doctrine, where the statements are actually part of the issue in the case (for example, defamation);46 statements of a mental or physical condition;47 and various other situations where declarations are relevant but courts do not state the specific reasons for admitting them.4" The main rationale for virtually all of the statements covered by the res gestae exception is the idea that spontaneity insures trustworthiness." In Missouri, res gestae has been applied to "verbal act" statements," dying declarations,5 excited utterances," and declarations of state of mind." It also has been used to refer to the admissibility of statements of 42. 2 McCoRMcK ON EVIDENCE § 268 (John W. Strong, ed. 1992). 43. WIGMORE, supra note 38, § 1767, citing Professor James B. Thayer, Bedingfeld's Case-Declarationsasa Partof the Res Gesta, 15 AM. L. REv. 1, 5-10 (1881) (citing SWiFT's DIGEST OF THE LAW OF EvIDENcE IN CiviL AND CRIMINAL CASES 127 (1810) the earliest American treatise). 44. WIGMORE, supra note 38, § 1767 (quoting Professor James B. Thayer, Bedingfield's Case-Declarationsasa Partof the Res Gesta, 15 AM. L. REv. 1, 5-10 (1881)). 45. McCORMICK, supra note 42, § 268. 46. WIGMORE, supra note 38, § 1767. 47. McCoRMIcK, supra note 42, § 268. 48. WIGMORE, supra note 38, § 1770. 49. McCORMIcK, supra note 42, § 268. 50. See Hamilton v. Missouri Petroleum Prods. Co., 438 S.W.2d 197, 199-200 (Mo. 1969); Sconce v. Jones, 121 S.W.2d 777, 781 (Mo. 1938); Stephen v. Lindell Hosp., 681 S.W.2d 503, 505-506 (Mo. Ct. App. 1984); State v. McClure, 504 S.W.2d 664, 671-72 (Mo. Ct. App. 1974). 51. See State v. Booth, 515 S.W.2d 586, 591 (Mo. Ct. App. 1974). 52. Hamilton, 438 S.W.2d at 199-200; Wren v.
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