Creager v. Chilson

• Decision Date: 11 May 1970
• Docket Number: No. 54731,No. 2,54731,2
• Citation: 453 S.W.2d 941
• Parties: Betty M. CREAGER, Appellant, v. Pamela L. CHILSON, a minor, by her Mother and Guardian ad litem, LaDean E. Blann, Respondent
• Court: Missouri Supreme Court

Page 941

453 S.W.2d 941

Betty M. CREAGER, Appellant, v. Pamela L. CHILSON, a minor, by her Mother and Guardian ad

litem, LaDean E. Blann, Respondent.

No. 54731.

Supreme Court of Missouri, Division No. 2.

May 11, 1970.

Paxton, James & May, William C. Paxton, Independence, for appellant.

Thos. J. Conway, Lonnie J. Shalton, Kansas City, for respondent; Popham, Popham, Conway, Sweeny & Fremont, Kansas City, of counsel.

STOCKARD, Commissioner.

In plaintiff's action for damages in the amount of $150,000 for personal injuries resulting from an automobile collision, the verdict of the jury was for defendant, and plaintiff has appealed.

A detailed statement of the evidence is not essential. On the evening of February 26, 1968, defendant, age seventeen, was operating her automobile in Jackson County, Missouri, northerly on Salisbury Road. As she approached the intersection with U.S. Highway 24 she stopped her automobile. Highway 24 was a four-lane undivided highway with two lanes for eastbound and two lanes for westbound traffic. After waiting for an eastbound automobile to pass, defendant drove onto Highway 24 and made a left turn into the inner westbound lane. Plaintiff was operating her automobile west on Highway 24 in the inner lane when, according to her, defendant 'shot' out in front of her and turned left. Plaintiff swerved her automobile to the left in an effort to avoid striking defendant's automobile, and entered the inner eastbound lane. After traveling approximately 108 feet parallel to defendant's automobile, plaintiff collided head-on with an eastbound automobile. There was no contact between plaintiff's and defendant's automobiles.

Plaintiff's first point is that the trial court erred in excluding certain evidence offered by plaintiff. Certain additional facts are necessary.

Defendant thought her automobile may have been involved in the collision, and she drove onto and parked in a nearby vacant lot. A police officer attempted to talk to her, but she was 'very upset and she was crying.' The officer told her to wait in her automobile and he would talk to her later. After he had cleared the highway he again talked to defendant, and according to the officer, 'Miss Chilson did state that she had pulled out and she felt that she had caused the accident.' William Alderson, a high school student, knew defendant and also her stepsister, Debbie Blann, who was a passenger in defendant's automobile and he went to their automobile while it was parked in the lot and talked to them. According to Alderson, 'one of them' talked to him in the presence of the other about the accident, but he could not recall which one it was. At the time of trial Debbie Blann was deceased. William Alderson, called as a witness for plaintiff, testified that he was at defendant's car 'just for a few minutes.' He was then asked: '* * * I will ask you what it was that either Pamela Chilson or Debbie in Pamel's presence said to you about this accident?' An objection that the answer would be hearsay was sustained. Plaintiff then stated that the testimony 'as to what was said by either the defendant or the sister in the defendant's presence without a denial or contradiction by the defendant' was offered as an admission by the defendant against her interest if the statement was made by her, and if it was made by Debbie it was offered 'as a tacit admission (by defendant) by her silence and failure to deny or contradict the statement made.' Plaintiff then made an offer of proof that if permitted, witness Alderson would testify that either defendant, or her stepsister Debbie Blann in defendant's presence, said that Pamela Childson had pulled out in front of plaintiff's automobile and had caused the accident. This offer of proof was refused.

Plaintiff argues that if it was defendant who made the statement to Alderson the statement was an admission against interest, and if Debbie Blann made the statement it was made in the presence of defendant whose silence constituted a 'tacit admission' against interest.

We conclude that in the circumstances of this case no prejudicial error resulted from the ruling of the trial court for a combination of reasons. First, it is not established who made the statement and it cannot be assumed that defendant made it. An admission by the defendant is entitled to considerable weight, Munday v. Austin, 358 Mo. 959, 218 S.W.2d 624, 628, but a tacit admission by reason of silence is considered to be weak in probative force. Keim v. Blackburn, Mo., 280 S.W. 1046. This would result in speculation on the part of the jury in determining the weight to be accorded the statement.

Second, although Missouri has recognized the rule that 'under given circumstances an admission may be implied from silence,' State ex rel. Tiffany v. Ellison, 266 Mo. 604, 182 S.W. 996, Ann.Cas.1918C 1, it has also been held that 'The circumstance must point clearly to the necessity for a reply before it can be admitted at all,' Keim v. Blackburn, supra, and a person is not always called on to speak. State ex rel. Tiffany v. Ellison, supra. In this case the defendant was seventeen years of age and at the time or near the time of the alleged statement she was very upset and crying. Since there was no proof that defendant made the statement, if admissible at all we must assume it was made by the stepsister. But, if made by the stepsister, it was made to a 'stranger' (in the sense that he was not a party to the controversy and occupied no official position), a young boy of high school age, and it was a statement of opinion concerning the fault of defendant. Whether circumstances are such to call for a denial is a preliminary question for the court. Klever v. Elliott, 212 Or. 490, 320 P.2d 263, 70 A.L.R.2d 1094, l.c. 1098. The record does not affirmatively show such a determination by the trial court, but unless we conclude that the circumstances do call for a denial, we cannot find prejudicial error. It is the universally accepted rule that because of the uncertainty which attends interpreting a person's silence as an implied admission of a statement made, such evidence is considered by the courts 'as dangerous and to be received with caution.' 29 Am.Jur.2d, Evidence § 633. Matters properly considered in determining the admissibility of such statements include the relationship of the declarant to the person whose silence is alleged to constitute an admission, the circumstances under which the statement was made, and the person to whom it was addressed. Gerulis v. Viens, 130 Me. 378, 156 A. 378, 76 A.L.R. 1387. In this case we do not know the age of the stepsister, but we know that defendant was but seventeen years of age and at the time highly excited, and that the statement was addressed to a high school age 'stranger.' As noted in Burton v. Horn & Hardart Baking Co., 371 P. 60, 88 A.2d 873, 63 A.L.R.2d 731, some circumstances call for silence. See also 29 Am.Jur.2d, Evidence § 633.

Third, the police officer had already testified that defendant had stated to him almost the precise statement set forth in the offer of proof, and defendant did not deny the testimony of the police officer. Therefore, the offered testimony of William Alderson would have at most been cumulative evidence of an admission by defendant, and its rejection could not have been...