Evidence – Restrictive Interpretations of Statute Intended to Liberalize Admission of Statements by Persons Since Decesed

Defendant, while driving an automobile, struck the plaintiff’s decedent, a pedestrian, causing injuries which ultimately resulted in her death. An action was brought by the plaintiff as administrator of the estate under a statute giving the right to recover for wrongful death. It was contended that statements made by the deceased to members of her family in the hospital one to two weeks after the injury, such as ”If she had stayed on her own side of the road, she’d never hit me,” were admissible under a South Dakota statute purporting to make statements of deceased persons receivable in actions by or against their representatives. The trial court excluded the evidence and entered judgment for the defendant. On appeal, held, affirmed. The evidence was properly excluded since the statute pertaining to admissibility of statements of deceased persons does not apply to a wrongful death action, but is limited to actions actually involving the decedent’s estate. Larimore v. Dobbs, (S. D. 1953) 57 N.W. (2d) 750.