Truck Insurance Exchange v. Michling
364 S.W.2d 172 (1963)

  • Michling left for work hale and hearty one morning.  That afternoon he came home and told his wife that he had bonked his head at work so hard that he came home.  She took him to the hospital where he later died of a brain hemorrhage.
  • Michling’s wife sued Truck Insurance for workman’s comp.
  • At trial Michling’s wife attempted to introduce his statement to her into evidence.
    • Truck Insurance objected on the grounds that the out-of-court statement was hearsay.
    • Michling’s wife argued that it was admissible as an exception to hearsay because it was an excited utterance.
      • An excited utterance is a statement related to a startling event or condition made while the declarant was under the stress of excitement caused by the event of condition.
      • Also sometimes known as a res gestae.
  • The Trial Judge allowed the evidence to be admitted.
  • The Trial Court found for Michling.  Truck Exchange appealed.
  • The Appellate Court affirmed.  Truck Exchange appealed.
  • The Texas Supreme Court reversed.
    • The Texas Supreme Court looked to the common law and found that in order to qualify for the excited utterance exception, the statement must a “spontaneous utterance of thought created by or springing out of the occurrence itself.
      • Basically, if Michling banged his head an immediately exclaimed, “Ow I banged my head!” then that would be an excited utterance.
      • However in this case, Michling banged his head, then drove home 30 miles, and told his wife he banged his head.  That’s not contemporaneous with the event, so it doesn’t count.
        • Exactly how contemporaneous a statement needs to be in order to qualify is generally a question for the Trial Judge to decide.
  • This case was decided under the common law.  Today, it would be governed by FRE 803(2).