Halford v. Yandell

• Citation: 558 S.W.2d 400
• Decision Date: 14 November 1977
• Docket Number: No. 10501,10501
• Parties: Jerry B. HALFORD, Appellant, v. David Thomas YANDELL and Van Tassel, Inc., Respondents.
• Court: Court of Appeal of Missouri (US)

Page 400

558 S.W.2d 400

Jerry B. HALFORD, Appellant, v. David Thomas YANDELL and Van Tassel, Inc., Respondents.

No. 10501.

Missouri Court of Appeals, Springfield District.

Nov. 14, 1977.

Albert C. Lowes, David G. Beeson, Buerkle, Buerkle & Lowes, Jackson, Charles C. Hatley, New Madrid, for appellant.

Donald L. Dickerson, Paul V. Gilbert, Jackson, Thomasson, Dickerson & Gilbert, Cape Girardeau, for respondents.

Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.

FLANIGAN, Judge.

This action arises out of a collision between two vehicles which occurred on U. S. Highway 60 in Stoddard County on August 30, 1974. One vehicle was a 1974 G.M.C. dump truck owned by plaintiff Jerry Halford and driven by his employee Dennis Laferney. The other vehicle was a White "semi-truck and trailer" owned by defendant, Van Tassel, Inc., and operated by its employee, defendant David Yandell. Each driver was acting within the course of his employment. Plaintiff's driver, Laferney, is not a party to the action.

The collision occurred when the dump truck attempted to pass the White truck as both vehicles were proceeding eastwardly. The jury returned a verdict in favor of the defendants. Plaintiff appeals.

The first of plaintiff's "points relied on" is that the trial court erred in permitting defendants' counsel, over objection, to cross-examine Laferney concerning the contents of a written statement dated September 9, 1974, which Laferney gave to David Hitt, an employee of William Dockins, a "claims adjuster"; "that said statement was privileged communication as based upon the attorney-client privilege and was thereby work product, thus neither discoverable nor admissible over objection."

The petition sought $32,875 for damages to the dump truck, loss of its use, and wrecker charges. The answer pleaded contributory negligence on the part of Laferney in failing "to sound warning of his approach" and in failing "to sound a horn before passing." Neither defendant filed a counterclaim.

In a proceeding in chambers, prior to the selection of the jury, Albert C. Lowes, plaintiff's attorney, informed the court that plaintiff had a "collision policy" on the dump truck "with our company," Western Casualty & Surety Company ("Western"), and that Western's subrogation interest in the prosecution of the action was "around.$19,000."

Laferney, testifying for plaintiff, stated, on direct examination: "I believe that I blowed my horn when I started to pull out, I know I signalled to pull out, and I started passing" defendant's vehicle.

On cross-examination by defendants' attorney Donald L. Dickerson, Laferney said that he believed he sounded his horn and that his testimony, given on direct examination, to that effect meant that he "wasn't exactly sure" about it.

Mr. Dickerson then asked the witness if he had made "statements different from that before today" and the witness answered, "Yes, sir, I have." The witness admitted that on September 12, 1974, he had received a telephone call from a Mr. Ted Lepick who called him from St. Louis, asked him about the accident, and took a recorded statement from him. The witness conceded that he had seen a transcription of the recording and also admitted that he told Lepick that he did not sound a horn.

The following ensued:

"Q. (By Mr. Dickerson) Now, Mr. Laferney, as a matter of fact, sir, haven't you made other written statements to the effect, in writing, signed by you, sir, that you did not sound a horn when you passed the Yandell vehicle?

"A. I don't remember.

"Q. All right. Do you know a Mr. Bill Dockins from Cape Girardeau?

"A. No, sir, I don't.

"Q. Did you ever to your knowledge, sir, sign a statement in which you stated 'I did not sound the horn'? Now, think about it.

"MR. LOWES: Your Honor, may we approach the bench?

"THE COURT: Yes, sir.

"(The following proceedings were had in the presence but out of the hearing of the jury:)

"MR. LOWES: Judge, I don't know what is in that statement, but if Dockins took the statement then it is work product, and it's the rankest kind of double-dealing for him to dish out any sort of statement to the other side.

"MR. DICKERSON: Your Honor, my next purpose, I have a subpoena duces tecum for Mr. Dockins and his file. This man is not a party to this lawsuit, he in no way has anything to do with this lawsuit as parties either plaintiff or defendant

"MR. LOWES: That isn't so.

"THE COURT: Who are you talking about?

"MR. DICKERSON: I'm talking about this witness, he's testifying as a witness in the trial of the case, and the testimony of a witness, who may have given previous statements, then there is no such thing as work product.

"THE COURT: I don't know what either of you are talking about. If this man has given a contrary statement, it is proper impeachment to show it. I don't understand your objection, Mr. Lowes.

"MR. LOWES: The basic objection if I understand it, Dockins was hired on behalf of the plaintiff to go out and get statements, among other things, and apparently Don is referring to that, and if I get it right, Dockins has given him a copy of that, and it would be work product and it can't be used."

Attorney Dickerson then informed the court that he had subpoenaed the file of Mr. Dockins and that he wanted to "call (Dockins) forward now for the purpose of procuring what I believe to be a written statement given by this witness to him." Whereupon attorney Lowes stated that Dockins "was hired on behalf of the plaintiff to go out and make a routine investigation. He did certain things and forwarded certain statements and that is work product. Work product cannot be used."

At this juncture, still outside the hearing of the jury, Dockins was called as a witness by Mr. Dickerson. Dockins testified that as a claims adjuster he investigated the accident and "through his representative David Hitt obtained a written statement from Laferney." The statement was marked Exhibit A.

On cross-examination Dockins testified that he was "employed by Halford's company" and was investigating "on behalf of Halford." Upon the completion of his investigation, "including statements," Dockins "reported to Halford's carrier." Dockins knew that litigation was likely to arise and that was one reason for the investigation. Dockins said that the day before the trial he talked with attorney Dickerson and "took the file, including the statement" to Dickerson. Dockins knew that Dickerson was representing the defendants but did not "contact anybody with Western, Halford, or any of his lawyers for permission to do that."

After Dockins was excused, the following occurred:

"MR. LOWES: Your Honor, we renew our objection, that is not discoverable and may not be legally used because it was work product.

"THE COURT: That objection is overruled so far as permitting him to interrogate this witness about whether he signed that statement."

The jury returned to the courtroom and Mr. Dickerson resumed cross-examination of Laferney. The witness admitted that he remembered talking to "the gentleman from Cape who wrote out what you said to him and then asked you to sign it." Laferney was then shown Exhibit A which was dated September 6, 1974, and admitted that he remembered making such a statement. The witness then admitted that Exhibit A included this statement, "I did not honk my horn as I started to pass."

Although they are ingeniously linked in plaintiff's first point, two grounds are advanced on this appeal for convicting the trial court of error in permitting defendants' counsel to use the written statement in cross-examining Laferney. Those grounds are: (1) The written statement was a "privileged communication as based upon the attorney-client privilege," and (2) the written statement "was work product."

During the proceedings held out of the hearing of the jury plaintiff's counsel, Mr. Lowes, made several objections based on the ground of violation of work product. However, his objections did not include an objection to the effect that the statement was "privileged," or that it was a communication between attorney-client, or that it was a communication to an insurer by its insured or by an employee of its insured. An objector has the burden "of making the basis of his objection 'reasonably apparent' to the court." Crabtree v. Reed, 494 S.W.2d 42, 45(3) (Mo.1973). In plaintiff's motion for new trial the "work product" objection was renewed but again there was no reference to attorney-client privilege, or insurer-insured, or insurer-employee of insured.

"As the Court recognized in Hickman v. Taylor, 329 U.S. 495 at 508, 67 S.Ct. 385 at 392, 91 L.Ed. 451, the work-product doctrine is distinct from and broader than the attorney-client privilege." (Emphasis added) United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975) (footnote 11).

Although the distinction between the work product doctrine and the attorney-client privilege has received authoritative discussion, ¹ the nature of the distinction need not be explored. It is sufficient for present purposes to recognize that the distinction does exist. An objection based on the ground of violation of work product is not equivalent to an objection based on the ground of violation of the attorney-client privilege. Daniels v. Hadley Memorial Hospital, 68 F.R.D. 583, 586(5-7) (D.C.1975).

When, as here, the admissibility of evidence is attacked in the trial court on one ground only, in the absence of plain error (Rule 84.13(c), ² a different objection to the evidence may not be advanced on appeal. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 632(6, 7) (Mo.App.1976); Negley B. Calvin, Inc. v. Cornet, 427 S.W.2d 741, 746(5, 6) (Mo.App.1968). Rule 78.07; Rule 78.09. The purpose of objections to evidence is to avoid trial error and to enable the court to rule intelligently. To that end, the party objecting to the admission of evidence must state the proper ground for its exclusion. Lewis v. Hubert, 532...