Carpenter v. Davis

• Decision Date: 25 November 1968
• Docket Number: No. 52845,52845
• Parties: Lewis CARPENTER, Appellant, v. Wilbur A. DAVIS, Mary Frances Davis, Leo F. Hackman, Tulah B. Hackman, and Thomas Grothoff, Respondents.
• Court: Missouri Supreme Court

Page 382

435 S.W.2d 382

Lewis CARPENTER, Appellant, v. Wilbur A. DAVIS, Mary Frances Davis, Leo F. Hackman, Tulah B. Hackman, and Thomas Grothoff, Respondents.

No. 52845.

Supreme Court of Missouri, En Banc.

Nov. 25, 1968.

William Duke Hiett, Houston, Cullen Coil, Jefferson City, Carson, Inglish, Monaco & Coil, Jefferson City, of counsel, for plaintiff-appellant.

Hendren & Andrae, Henry Andrae, Kelly Pool, Jefferson City, for defendants-respondents.

DONNELLY, Judge.

In this jury-trial action involving an intersectional vehicular collision in Osage County, Missouri, which occurred March 17, 1965, plaintiff seeks damages for the death of his wife, Opal Carpenter. The jury returned a verdict for defendants. Plaintiff appealed.

The collision occurred at the intersection of Highways 50 and 63. Highway 50 extends east and west. Highway 63 extends south from its intersection with Highway 50. A stop sign and red light at the intersection govern vehicles traveling north on Highway 63.

Opal Carpenter was a passenger in a car driven by her brother, Loren Babbit, in a northerly direction on Highway 63. Defendant Thomas Grothoff was driving a Central Dairy Truck in an easterly direction on Highway 50. The truck struck the left side of the car near the center of the intersection.

The parties have narrowed the issues on this appeal. The question is whether, in this negligence action, an opinion as to fault is admissible as a declaration against interest. We hold that it is not.

Defendant Grothoff testified as follows:

'Q Now, what did you do immediately following the collision?

'A I run over and checked the car. This man was laying up against--this woman was kinda turned around and this man was laying up against her, and--

'Q (by Mr. Burruss) Did you have any conversation with the lady in the right front seat, Mrs. Carpenter, the lady who died?

'A Not at this time I didn't. I went and called the Highway Patrol and ordered an ambulance before I talked to anybody.

'Q All right. So you went to the car and looked in?

'A Yes, sir.

'Q But then you left this car, this Dodge Dart, is that right? A That's right.

'Q You went to call for assistance?

'A That's right.

'Q Where did you go to do that, Mr. Grothoff?

'A Willibrand's have a--has an outside pay telephone booth right next to its service station there, and I run over to it and I called the Highway Patrol.

'Q This is Willibrand's service station, right there at the intersection; is that right? A That's right.

'Q All right, sir. Then what did you do after you called the Highway Patrol?

'A Well, I had come back to the car and this time I went around to the other side of the car to where the lady was and she was trying to get out of the car, then.

'Q Did you have any conversation with her at that time?

'A Yes, sir, I did.

'Q And what did you say to her, Mr. Grothoff?

'MR. COIL: I object to this conversation. The witness is not--

'THE COURT: Step up, gentlemen.

(The following proceedings were had at the bench, outside the hearing of the jury:

'MR. COIL: The witness is not competent to testify to any statement--

'THE COURT: Suppose he makes his offer of proof and you make your objection?

'MR. BURRUSS: I want to show by this witness that he stated to the decedent, at this time, 'I'm sorry, lady, but you pulled right out in front of me.' And that she said to him, 'Yes. Yes, I know. It wasn't your fault.'

'I offer that as a declaration against interest.

'MR. COIL: I object to the offer on the ground this witness, being a party to the action, is not competent to testify to any statement made by the deceased person, and on the further ground that the proffered statement constitutes a legal conclusion and not part of the res gestate and is not a dying declaration.

'THE COURT: Are you sure he is going to testify to all that?

'MR. BURRUSS: All I can tell you, this is what the man said was said at the time and place.

'THE COURT: If he testifies to all that, I'll overrule the objection.)

'Q (by Mr. Burruss) Now, Mr. Grothoff, my question to you was, what did you say to the woman who later died, Mrs. Carpenter, at that time?

'A I said, I'm sorry, lady, you pulled right out in front of me.'

'Q What did she reply to you when you said that?

'A She said, 'Yes, I'm sorry, its not your fault,' something like that--'Yes, I know it's not your fault,' I believe is what she said.'

Plaintiff contends the trial court committed reversible error in admitting in evidence the statement, italicized above, attributed by the witness to Opal Carpenter. In determining the question of admissibility of the statement, we must first recognize the difference between admissions against interest and declarations against interest.

'There is a vital distinction between admissions against interest and declarations against interest. Admissions against interest are those made by a party to the litigation or by one in privity with or identified in legal interest with such party, and admissible whether or not the declarant is available as a witness. Declarations against interest are those made by persons not a party or in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule, admissible only when the declarant is unavailable as a witness.' Neely v. Kansas City Public Service Co., 241 Mo.App. 1244, 1247, 252 S.W.2d 88, 91.

We reach the following preliminary conclusions:

(1) The statement in question is: "Yes, I know, it's not your fault,' * * *.' The statement of fact, "Yes, I know," will be admissible upon retrial, if offered alone, as a declaration against interest. Graham v. Stroh, 342 Mo. 686, 696, 117 S.W.2d 258, 262; Straughan v. Asher, Mo.App., 372 S.W.2d 489, 494--495. However, the balance of the statement is an opinion as to fault.

(2) This opinion as to fault would have been admissible as an admission against interest had Opal Carpenter survived and this were her action for damages for personal injuries. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Annotation, 118 A.L.R. 1230.

(3) This opinion as to fault is not admissible in Missouri as an admission against interest because it was not made by a party to this action or by someone identified in legal interest with a party to this action. In McComb v. Vaughn, 358 Mo. 951, 956, 218 S.W.2d 548, 551, the Court stated: '* * * It seems to us deceased in his lifetime could not have had any identity as one in privity, in any legal sense, with plaintiff Lagatha in her new and distinct cause of action which arose and accrued to her only upon his death and only by virtue of statute.'

In the Grodsky case, supra, this Court approved a ruling by the trial court admitting a statement by plaintiff that in her opinion someone other than defendant was entirely responsible for the accident. The Grodsky case involved an admission against interest. The declarant was a party. The question is whether the Grodsky holding should be extended to this case wherein declarant is not a party.

The Grodsky case, supra, and other cases involving admissions against interest, such as Costello v. M. C. Slater, Inc., Mo.App., 220 S.W.2d 947, cited by defendants, do not assist us in determining the question. They represent recognition, in an adversary proceeding, that a party should be held responsible for statements of fact or opinion, previously made, which conflict with the position taken by him in the judicial proceeding. Such statements may affect credibility and proof, and may aid the jury in arriving at the truth. In any event, the declarant is available in court to advance or defend his position.

An opinion as to fault in a negligence action is particularly susceptible to error. A witness at trial may, intentionally or otherwise, change a word and convey a meaning completely different from that intended by the declarant. An opinion as to fault may be ambiguous, and yet persuasive, where, as here, no opportunity exists for explanation or denial. In these circumstances, are the available safeguards sufficient to offset the risks of inaccuracy? We think not. See Wigmore on Evidence, 3rd Ed., Vol. V, § 1420; and McKelvey on Evidence, 5th Ed., § 258. We hold that an opinion as to fault is not admissible as a declaration against interest.

The case of Costello v. M. C. Slater, Inc., supra, insofar as it may infer that an opinion as to fault, coupled with a statement of fact, is admissible as a declaration against interest, should no longer be followed.

The trial court prejudicially erred in permitting the jury to consider, as an exception to the hearsay rule, an opinion as to fault, attributed to one not a party.

The judgment is reversed and the cause remanded.

HOLMAN, C.J., and HENLEY and EAGER, JJ., concur.

FINCH, SEILER and STORCKMAN, JJ., each dissent in separate dissenting opinions filed.

FINCH, Judge (dissenting).

I concurred in division in an opinion substantially similar to the principal opinion herein. However, after reargument of the case before the court en banc I have concluded to dissent.

If Mrs. Carpenter had lived and had brought suit to recover for her injuries, the statement attributed to her by defendant Grothoff would have been admissible therein as an admission against interest. The principal opinion so recognizes. However, Mrs. Carpenter died and her husband seeks to recover for her death resulting from those same injuries. The principal opinion points out that Mrs. Carpenter, of course, is not a party to the present suit and that under the doctrine of McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548, the cause of action by her husband is a new statutory cause of action and there is no privity between plaintiff Carpenter and his deceased wife. On that basis, the opinion concludes that the statement in question is not admissible as an admission against interest. It further holds that the statement is not admissible as a declaration against interest on the basis that the words spoken...