Aviation Enterprises, Inc. v. Cline
| Decision Date | 04 October 1965 |
| Docket Number | No. 24244,24244 |
| Citation | 395 S.W.2d 306 |
| Parties | AVIATION ENTERPRISES, INC., by H. F. Jones, Blanche Jones, Edwin Earnshaw, Charles F. Bishop and Theldon B. Zaugg, its Directors, Appellant, v. Merie A. CLINE, Respondent. |
| Court | Missouri Court of Appeals |
William Harrison Norton, Williams, Norton & Pollard, North Kansas City, for appellant.
William A. Rundle, Jr., William J. Thompson, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondent.
This is a suit by the corporate plaintiff for property damage to an airplane rented by plaintiff to defendant and expenses incurred by plaintiff in connection therewith when the plane, piloted by defendant, ran off the end of the runway, through a fence, and onto the edge of a highway, when defendant attempted to land the plane at Warrensburg, Missouri, on the morning of August 30, 1959. Plaintiff's cause of action is based upon the negligence of defendant as pilot, which plaintiff contends resulted in the crash landing and damage to the plane and expense to plaintiff. Plaintiff's prayer was for a total recovery in the amount of $7,500.00. Trial to the court, without a jury, resulted in a judgment for defendant and plaintiff has duly appealed to this court.
At the trial plaintiff attempted to show negligence on the part of defendant through the testimony of expert witnesses. Repeated attempts by plaintiff to secure answers to hypothetical questions were thwarted by the court sustaining objections to such questions. Plaintiff alleges error in such rulings, but in the view we take of this case, it will not be necessary to discuss these alleged errors or the correctness of the hypothetical questions asked, because such problems can be obviated in the re-trial of this case, without our extended discussion thereof.
Plaintiff also attempted to show negligence on the part of defendant by offering in evidence a photostatic copy of an accident report submitted by defendant to the Civil Aeronautics Administration. This report was first offered without any identification or the testimony of any witness in support thereof. When such offer was refused, plaintiff then called the defendant to the stand, as an adverse witness, for the purpose of identifying the report and his signature thereon. Defendant admitted that the photostatic copy contained a photostatic copy of his signature, that he made such a report and that he signed such a report. He further testified that he did not recall when, or to whom, he made his report; that the statement contained in the report describing what happened in the accident was not true or not complete and that he did not recall whether or not he had made such a statement.
The offer of the report in evidence was denied by the court on the ground that the photostatic copy was not the best evidence.
Plaintiff offered this report as containing an admission against interest by defendant, who signed the report. In answer to the question, 'What happened?', the report stated:
It is plaintiff's contention that the best evidence rule does not apply to the use of secondary evidence such as the photostatic copy here in question when the document is offered to prove an admission of a party which is contained in such document. The parties have not cited any Missouri cases exactly in point and which govern the disposition of this appeal. Considerable research by the writer has not disclosed any such Missouri case, and, in fact, very few cases presenting a similar situation have been found in the United States.
While no discussion of the fundamental principles of the best evidence rule is here required, it must be kept in mind that the rule does not operate to exclude secondary evidence in all instances, but only to prefer primary evidence (the original document) over secondary evidence. Where the primary evidence is unavailable, secondary evidence is then permitted on a proper showing. The rule is not applicable in all instances where documentary evidence is offered, or, to state it another way, there are exceptions to the application of the rule requiring documentary originals.
These exceptions are based upon the reasoning which is set out in 2 Conrad, Modern Trial Evidence, Section 773, pages 5-6, as follows: 'When it appears that secondary evidence is clearly equal in probative value to primary proof and that fraud or imposition is not to be feared, the reason on which the best evidence rule rests ceases to be applicable'.
Many cases have stated that the best evidence rule has no applicability to instances where the evidence is offered on a collateral matter. Thus it is said that where the issue that the evidence tends to prove is collateral to the main issue in the case and is not fundamental to the cause of action or defense that the best evidence rule does not apply. See 22 C.J. Evidence Section 1224, p. 978, 32A C.J.S. Evidence Sec. 781, p. 100. This particular exception has been recognized and applied by Missouri courts in such cases as In re Mingo Drainage District, 267 Mo. 268, 183 S.W. 611; Morgan v. Garretson-Greason Lumber Co., 105 Mo. 239, 79 S.W. 997; and Levelsmeier v. St. Louis and S. Ry. Co., 114 Mo.App. 412, 90 S.W. 104.
It also appears that where the contents of the writing is not directly in issue, although the evidence contained in the writing may bear upon a fundamental issue in the case, that the best evidence rule does not apply and that secondary evidence may be used without accounting for the original document. 32A C.J.S. Evidence, Sec. 787, p. 109. It should also be remembered that in many instances the fact to be proved exists independently of any writing; that it incidentally happens that there is evidence of such fact contained in a writing, as well as other evidence of such fact which exists completely independent of any writing. In such situation, both the written document and oral testimony constitute primary evidence of the independent fact. In such situation, either documentary or parol evidence may be used to prove the independent fact and the best evidence rule is not applicable. 32A C.J.S. Evidence Sec. 786, p. 107; 20 Am.Jur. Evidence, Section 405, p. 366; 1 Jones on Evidence (5th ed.) Section 235, p. 455.
This exception permitting secondary evidence to be used to prove collateral issues has found wide acceptance throughout the country, although the cases seldom provide a careful analysis as to whether the exception applies only where the fact to be proved is collateral to the fundamental issues in the case, or whether it also applies where the existence of the document is collateral to the case, but the evidence contained therein goes to prove one or more of the issues fundamental to or forming a foundation for the cause of action. See Ruppert v. Hermleigh Cooperative Gin and Supply Co., Tex.Civ.App., 133 S.W.2d 305; Delvitto v. Schiavo, 164 Pa.Super. 338, 64 A.2d 496; Peterson v. Lott, 200 Ga. 390, 37 S.E.2d 358; Waters v. W. O. Wood Realty Co., Ala., 71 So.2d 1.
In the present case, the existence of the accident report is certainly collateral to any issue. Plaintiff's case does not rest upon such report; neither is it necessary for plaintiff to prove the existence of the report. The foundation of plaintiff's cause of action is the negligence of defendant as pilot of the crashing airplane. It is only incidental that the report contains a statement made by defendant which constitutes an admission by him against interest, which is evidence bearing upon the question of his negligence.
It would thus appear that since the existence of the accident report, as such, is not an issue in the case, and the contents of the report is only incidentally and collaterally pertinent to the case, that the photostatic copy of the report might well be admissible under the authorities discussed above. However, since the documentary evidence was offered as an admission, there is even stronger reason and more convincing authority for its admissibility.
It is said in 22 C.J., Evidence, Section 1221, p. 976: '* * * where it is sought to use a written statement as an admission, the best evidence rule does not apply, but a copy of the writing or parol evidence of its contents is admissible'. This principle is stated in the following language in 2 Conrad, Modern Trial Evidence, Section 774, p. 7: 'Another important qualification of the best evidence rule relates to the admissions of a party in interest * * *. the best evidence rule does not apply to the admissions of parties.' See also 32A C.J.S. Evidence, Sec. 788, p. 110, and 20 Am.Jur., Evidence, Section 406, p. 367, Section 579, p. 488.
Although the cases do not always clearly so distinguish,...
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