Francis v. Willits

• Citation: 30 S.W.2d 203
• Decision Date: 16 June 1930
• Docket Number: No. 16928.,16928.
• Parties: FRANCIS v. WILLITS.
• Court: Court of Appeal of Missouri (US)

30 S.W.2d 203

FRANCIS v. WILLITS.

No. 16928.

Kansas City Court of Appeals. Missouri.

June 16, 1930.

Rehearing Denied June 30, 1930.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

Action by Otis O. Francis against Lyle G. Willits. Judgment for plaintiff, and the defendant appeals.

Reversed and remanded.

Harris & Koontz, of Kansas City, for appellant.

Neibling & Levis, of Kansas City, for respondent.

BOYER, C.

Action for damages on account of injuries received when plaintiff was struck by an automobile alleged to have been owned and driven by the defendant. There is ample evidence tending to show that plaintiff was struck by defendant's automobile near the intersection of Sixteenth street with Broadway, two public thoroughfares in Kansas City, Mo.; and likewise ample evidence to show negligence on the part of the driver of the car, and that plaintiff was seriously and permanently injured. There was a verdict and judgment for plaintiff, and defendant duly appealed.

The only evidence in the case that would fix responsibility on the defendant as the driver of the car was contained in the deposition of Harry J. Belmont, which was offered and admitted over the objection and exception of the defendant. It seems to be conceded by both sides, and it appears, that the evidence contained in the deposition is vital to plaintiff's right of recovery. The propriety of its admission is the paramount question in this case, and we will state the facts shown by the record which are pertinent and controlling.

Plaintiff was injured May 7, 1927. The action was begun July 30, 1927. The deposition of Belmont was obtained February 16, 1929, and the trial began May 16 following. We gather from the record that the deposition in question was taken at the law office of plaintiff's counsel in Kansas City, Mo., and that the deposition of defendant had been taken immediately before. Belmont testified that his address was Lofland Hotel, 1923 Main street, where he had been living since the preceding Monday; that at the time of the accident he lived at 1514 Broadway; that he was a truck driver and had been following that business about 15 years; that he was 40 years old and married; that his wife was in Council Grove, Kan., and had been there 6 or 8 weeks visiting with her people; that they were still living together; that he was not employed at present; that he had been in St. Louis a few days looking for work, found none, and came back; that he first came to Kansas City 12 years ago; that he first went into the garage business where he was engaged about a year, returned to his home in Indiana on account of his father's death for a period of 2 or 3 weeks, and came back to Kansas City and went to work for the Charles Israel Transfer Company, where he was employed for 6 or 7 years driving trucks; there were some intervals during his employment; that he worked for the Missouri Freight Corporation about a month ago; that he was with the Adams Transfer Company about 6 months; that he had worked for Schwartz Transportation Company, St. Louis, and the Missouri Freight Corporation in Kansas City, Mo., cross country trade; that he had been in and out of Kansas City; that for the last 6 or 8 years he followed the "roofing game" and worked for the Johns-Manville Corporation in charge of construction of roofs.

The witness appeared at the taking of the deposition in answer to a subpœna which had been left at the Lofland Hotel; when he learned of the subpœna, he called up the attorney's office and went to see him; that was the day before. On the day prior to the taking of his deposition, he went to the office of defendant for the purpose of identifying him; that he accompanied a Mr. Jensen who served a subpœna upon defendant. Mr. Jensen was connected with the law office of plaintiff's counsel. He claimed that he had fully identified defendant as the driver of the car on the night of the injury; that he saw him the next morning at the police station and desired to be sure that the defendant was the same man that he had previously seen. Witness said that he saw defendant the day before in the Argyle building; "I was with Mr. Jensen of your office; he was serving a subpœna on the driver;" that he recognized defendant as the driver of the car and said: "I saw him at this office this morning. I should judge it has not been over fifteen minutes ago when he walked out of this office, where he was here having his deposition taken."

Preceding, and preparatory to the introduction of the deposition, plaintiff called Mr. Jensen in order to account for the absence of the deponent. He testified that he made an attempt to find the witness Harry J. Belmont; that he looked and inquired for him at the address, Lofland Hotel, 1923 Main street, and was informed that he was living across the street at the Gateway Hotel, 1910 Main street; that he inquired at the latter place, and was informed that the witness "was out of the city and would not return until next week"; that he went to the address given to him by the attorney "on the list to make out subpœnas and serve these people"; that he did not know any other place to look for the witness. On cross-examination, he further stated that he obtained the information that the witness was out of the city from the colored porter who was at the desk, and no one else there. He was asked if he did not know that the "witness had been fired out of that hotel Saturday night for not paying his bill," and answered: "I did not know he had been fired out of any hotel. I knew he was not there." Witness said he "asked where he was and they said he was out of the city"; that he did not ask where he worked; that he did not find out that he worked the past week for the Summit Storage Company at Twentieth and Summit. His answer was: "No. I knew he was a carnival man and traveling all the time. From my observation, I traced him once before, and I traced him—" that he did not know where the man's wife was and did not read his deposition; that he was around the office when it was taken; that he did not know that the man's wife was now living with him in Kansas City; that he went to look for the witness the day before the case was to go to trial with a subpœna; that was the first time in this case, but that he had served him once before.

Defendant objected to the introduction of the deposition for the reason that the witness was in Jackson county, Mo., and there was no proper and sufficient evidence to show that he was not within forty miles of Kansas City, Mo. After the objection was overruled and exception saved, the court said to counsel for defendant: "Well, on your objection, do you want to offer any evidence?" The attorney said: "No."

The objection to the deposition was preserved in the motion for new trial on the ground that the witness was at the time actually in Jackson county, Mo. At the hearing and ruling on the motion, it was admitted that the witness was in Kansas City at the time in question, with the reservation that plaintiff's counsel did not admit that they had any knowledge of that fact at the time.

Opinion.

Defendant makes the point in his brief and argument that the deposition was erroneously admitted because in effect there was no reason shown which would qualify it as competent evidence, and that the whereabouts of the witness was not accounted for and no showing made that he was not within the jurisdiction of the court. Plaintiff contends that a sufficient showing was made in order to render the deposition competent. We have stated fully the facts that would have any bearing upon the question, and have reached the conclusion that the deposition was not qualified and was erroneously admitted in evidence.

Section 5467, Rev. St. 1919, provides conditions upon which depositions may be read as follows: "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 same: First, if the witness resides or is gone out of the state; second, if he be dead;...