On appeal from the New Jersey Supreme Court, whose opinion is reported in 132 N.J.L. 422.
For the petitioner-appellant, Irving Edelstein (Aaron Gordon, of counsel).
For the defendant-respondent, George E. Meredith.
We concur in the result reached by the Supreme Court and approve of its opinion except in so far as it holds that statements alleged to have been made by the decedent with respects to the purpose of his trip were hearsay and could not form the basis of a recovery. While hearsay evidence cannot form the basis of an award of compensation, Helminsky v. Ford Motor Co., 111 N.J.L. 369, we are of the opinion that in the instant case decedent's statements and conversations made prior and in relation to his trip were properly part of the res gestoe and therefore an exception to the hearsay evidence rule. The case of Hunter v. State, 40 Id. 495, is strongly in point. Decedent's statements were the natural incidents
of his act in going south, which act was a part of the res gestae. They were concerned with preparations for it and were thus naturally connected with it. As was said in the Hunter case, "The res gestae may therefore be defined as those circumstances which are the undesigned incidents of a particular litigated act, which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary, in this sense, that they are part of the immediate preparations for, or emanations of such act, and are not produced by the calculated policy of the actors."
Even considering the conversations before alluded to, the result would not be changed.
The judgment is affirmed.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, DONGES, HEHER, PERSKIE, COLIE, OLIPHANT, WELLS, RAFFERTY, DILL, FREUND, McGEEHAN, JJ. 13.