Coffel v. Spradley

• Court: Missouri Court of Appeals
• Writing for the Court: SHANGLER; SOMERVILLE
• Citation: Coffel v. Spradley, 495 S.W.2d 735 (Mo. App. 1973)
• Decision Date: 02 April 1973
• Docket Number: No. KCD,KCD
• Parties: Gladys COFFEL et al., Plaintiffs-Appellants, v. Betty I. SPRADLEY, Administratrix of the Estate of Jessie W. Spradley, Deceased, Defendant-Respondent. 26171.

Page 735

495 S.W.2d 735

Gladys COFFEL et al., Plaintiffs-Appellants, v. Betty I. SPRADLEY, Administratrix of the Estate of Jessie W Spradley, Deceased, Defendant-Respondent.

No. KCD 26171.

Missouri Court of Appeals, Kansas City District.

April 2, 1973.

Motion for Rehearing and/or Transfer Denied May 7, 1973.

Application to Transfer Denied July 16, 1973.

Thomas D. Cochran and C. William Kramer, Piedimonte & Cochran, Independence, for plaintiffs-appellants.

Gene R. Martin, Ennis, Browne, Martin & Tapp, Kansas City, for defendant-respondent.

Before SWOFFORD, P.J., and SHANGLER and WASSERSTROM, JJ.

SHANGLER, Judge.

This is an action for personal injuries, loss of services, and property damage brought by John Coffel and Gladys Coffel, his wife, against Jessie W. Spradley, arising from the collision of their automobiles. Immediately before trial, the death of Mr. Spradley was suggested to the court by formal motion and the court ordered the substitution of Betty I. Spradley, administratrix of the decedent's estate, as party defendant.

The plaintiffs submitted their recovery on the rear end collision doctrine. The defendant was permitted to prove a sudden and unexpected brake failure under the general denial of the answer. This proof came principally from the deposition, read into evidence by the defendant, of the deceased Jessie W. Spradley. The plaintiffs appeal from the judgment entered upon the jury verdict for the defendant. They claim error in that 1) the trial court improperly permitted the deposition of the deceased, Jessie W. Spradley, to be read into evidence and 2) the trial court improperly received evidence and permitted jury argument of a sudden unexpected brake failure although the issue had not been pleaded by the defendant and is no longer a submissible defense.

The principal evidence offered by the defendant on the issue of liability was the deposition of Jessie W. Spradley. Plaintiffs objected to the reading of the deposition in evidence because it was not signed by the witness and did not otherwise conform to the procedures of § 492.340 and 492.400, RSMo 1969, V.A.M.S., and Rules 57.22 and 57.29, V.A.M.R., which now supersede them. ¹

It is the sense of the plaintiffs' argument that by the provisions of Rule 57.22 a deposition does not qualify as evidence unless it is signed by the witness or, in the absence of such signature, by the officer by whom the testimony was taken with a statement in the record of the reasons for the absence of the signature of the witness--in this case, the fact of his death--and that the deposition of Jessie W. Spradley, devoid of either signature, was improperly received as evidence. The death of Jessie W. Spradley, however, was a fact adjudicated by the Order of Substitution entered upon the motion of the Administratrix, regularly filed, noticed and determined in the manner provided by Rules 52.13(a) and 43.01. The statement of the reporting officer that the deposition had not been signed by the witness because of his death would merely be corroborative of a fact already conclusively proved between the litigants.

Actually, plaintiffs concede the fact of the death of the witness but contend that the signature of the officer reporting the testimony is nonetheless indispensible, in cases where the signature of the witness is unavailable or refused, as an authentication of the accuracy of the transcription. Under the procedures of Rule 57.22, the signature of the witness vouches for the accuracy of the transcription, but the signature of the officer taking the testimony authenticates only his statement of the reasons the signature of the witness does not appear, reasons which may be contested by a motion to suppress the deposition. The certification of the officer taking the deposition attesting that the examination has been faithfully reported and transcribed is provided for separately by Rule 57.23. In this case, it was both proved and conceded that the witness Jessie W. Spradley had died. That was sufficient reason under Rule 57.22 to excuse his signature and qualify his deposition examination as evidence. Drummond v. Hartford Fire Insurance Company, 343 S.W.2d 84, 87(8) (Mo.App.1960). The signature of the reporter attesting to a fact never in dispute would have been useless and supererogatory.

The signature of the witness goes to the form, rather than the substance, of the deposition and is not in all events indispensable, as Rule 57.22 by its terms recognizes. Will Docter Meat Co. v. Hotel Kingsway, 232 S.W.2d 821, 825(4) (Mo.App.1950); Hoyberg v. Henske, 153 Mo. 63, 55 S.W. 83, 85 (banc 1899). In the circumstances of this case, where the defendant has in effect offered his own deposition and by that act put himself 'in the position of vouching for its accuracy no less effectively than his signature could possibly have done', his deposition was not rendered inadmissible because of the informality which results from the absence of his signature. Will Docter Meat Co. v. Hotel Kingsway, supra, l.c. 825(6). Nor will the deposition be denied the efficacy as legal evidence it would have been accorded without the signature of the witness only because it lacks the signature of the officer by whom the testimony was taken.

The plaintiffs appear to argue that, even assuming the deposition qualified as evidence under Rule 57.22, it could not be read at the trial because the fact of the death of the witness, authorizing the use of the deposition, was not proved in the mode of Rule 57.29. That rule, which provides that 'the facts which would authorize the reading of the deposition may be established by the testimony of the deposing witness, or the certificate of the officer taking the deposition, or the testimony of the person or officer who attempted to serve the witness with a subpoena', does not prescribe the exclusive methods of proof available for that purpose. A party may resort to other sources to lay the foundation for the introduction of the deposition as evidence. Doyle v. St. Louis Transit Co., 124 Mo.App. 504, 101 S.W. 598, 599 (1907). A judicial admission of the fact of death of the witness, such as plaintiffs make in their brief, is one such source of proof; a judicial determination of that fact on motion for substitution is another.

The collision which gives rise to this action occurred when the vehicle operated by plaintiff John Coffel and occupied also by his wife stopped at an intersection for a red traffic signal light and was struck at the rear end by the vehicle defendant's decedent was operating. The officer who investigated the occurrence testified the approach to the traffic signal light from the south, the direction of plaintiffs' travel, as a downgrade commencing approximately 150 feet north of the intersection. He testified also that during the course of the investigation the decedent, Jessie W. Spradley, stated that his brakes faded out just prior to the collision with the plaintiffs' vehicle. The deposition testimony of Jessie W. Spradley, read in evidence, was that as he approached from the south, at a speed of about 25 miles per hour, the traffic light at the intersection 150 feet away turned to red. He then applied his brakes for the first time and they operated normally to reduce his speed. He released his brakes and then, when he was about 25 feet from the plaintiffs' vehicle, applied them again at which time he had no brakes. The pedal went all the way to the floor without effect. He tried to apply the emergency brake but did not succeed. At the time of impact the Spradley car was going from 10 to 15 miles per hour. Mr. Spradley testified that his brakes had been in good working order prior to the collision; they had been checked two months previously. The day after the occurrence, the brake system was examined and a defective master cylinder removed. The rest of the brake system was found to be intact and after the replacement of the master cylinder, the brakes were once again effective.

From the outset of the trial, first in anticipation of defendant's opening statement to the jury that her evidence would show brake failure as an exculpation for the negligence alleged, then during the proof of brake failure, and finally in anticipation of defendant's closing argument to the jury that the sudden and unexpected brake failure excused negligence, the plaintiffs objected that such references and evidence were improper in the absence of a defense of brake failure affirmatively pleaded by the defendant, and were otherwise proscribed because tantamount to proof of a sole cause defense, an issue no longer submissible under MAI. The trial court overruled each such objection.

In the course of their discursive presentation of these points, the plaintiffs have added others so that the full statement of these claims of error include: 1) brake failure must be affirmatively pleaded by a defendant intending to rely on that defense, 2) there was not in any event...