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
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
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).