Maxwell v. City of Springfield

Citation705 S.W.2d 90
Decision Date02 January 1986
Docket NumberNo. 13648,13648
PartiesMary P. MAXWELL, Plaintiff-Appellant, v. CITY OF SPRINGFIELD, Missouri, d/b/a City Utilities of Springfield, Missouri, and Kenneth L. Debow, Defendants-Respondents.
CourtCourt of Appeal of Missouri (US)

James W. Newberry, Schroff, Glass & Newberry, P.C., Springfield, for plaintiff-appellant.

Jerry L. Reynolds, Darrell L. Moore, Jerry L. Reynolds and Associates, Springfield, for defendants-respondents.

HOGAN, Presiding Judge.

This action arose out of an intersectional collision between plaintiff Mary Maxwell's vehicle and a city-owned bus in the intersection of Campbell and Division Streets in Springfield, Missouri. The intersection is controlled by an electric signal. A good deal of evidence was received by the trial court, but in the final analysis the dispositive issue of fact was "who had the green light" and plaintiff submitted her case upon defendants' violation of the traffic signal in the form required by MAI 17.01. A jury found the issues for the defendants and against the plaintiff. Judgment was entered accordingly. Plaintiff has appealed, tendering five assignments of error. In the view we take of this appeal, it will only be necessary to consider Points I and II advanced by the plaintiff. We reverse and remand, avoiding collateral and tangential questions to the extent possible.

This action was commenced April 21, 1982. Defendant Debow, the driver of the bus, was joined as a defendant and service of process was had upon him April 22, 1982. On May 28, 1982, the cause was voluntarily dismissed by plaintiff as to defendant Debow. The deposition of one Henry Worcester was filed August 29, 1983. On August 30, 1983, plaintiff, with leave of court, filed a second amended petition. Debow was again joined as a defendant, and was again served with process.

On October 17, 1983, counsel for defendants appeared at a pretrial conference to present "objections for each party" pertaining to the deposition given by Mr. Worcester. The trial court read the deposition and ruled on defendants' objections thereto. The deposition was videotaped, but that fact is not material to this appeal. On the second day of the trial, counsel for defendants moved to limit the use of the deposition to the defendant city on the ground that Debow was not a party when the deposition was taken. Some authority was cited and defendants' counsel insisted on a ruling. Finally, the trial court orally instructed the jury that the Worcester deposition would be received in evidence against defendant city, but not against defendant Debow.

Two or three facts must be borne in mind. Worcester was apparently the only witness to the accident, other than the plaintiff and Debow. Plaintiff was severely and permanently injured in the accident; her own evidence established that she had sustained a brain injury and her memory was impaired. At the time the objection to use of the deposition was made, defendants had admitted Debow's agency.

As presented to this court, the question is whether, in the circumstances, the videotaped deposition taken when Debow was not a party and without notice to him, was properly limited. One general rule, firmly established, is that when evidence is admissible for one purpose or upon one issue but would be improper for other purposes and upon other issues, it should be received. The opponent then has a right to an instruction, if he should request it, limiting the extent to which and the purpose for which the jury may consider such evidence. State ex rel. Kansas City Public Service Co. v. Shain, 345 Mo. 543, 549, 134 S.W.2d 58, 61 (1939); Martin v. Yeoham, 419 S.W.2d 937, 949-50 (Mo.App.1967). This rule is applicable to depositions and answers to interrogatories which are admissible against one defendant but not against the other. Pyles v. Bos Lines, Incorporated, 427 S.W.2d 790, 792[2-4] (Mo.App.1968); Millspaugh v. Missouri Pac. Ry. Co., 138 Mo.App. 31, 33, 119 S.W. 993, 994 (Mo.App.1909).

The basic rule of admissibility with which we are concerned is that a deposition taken at a time when a person is not a party to an action cannot be used against him after he has been made a party, unless he was in privity with him who was already a party. First National Bank of St. Petersburg v. Switzer, 277 S.W.2d 689, 691 (Mo.App.1955). The law has been such for many years, Hendricks v. Calloway, 211 Mo. 536, 558-59, 111 S.W. 60, 66 (1908), but is at the present time subject to exceptions. Commonly the admission of depositions against one not a party when the deposition was taken is governed by a rule or statute. Mo.R.Civ.P. 57.07(a) provides, in applicable part:

"At the trial ... any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had proper notice thereof ...." (Our emphasis.)

However, and contrary to defendant's position, this rule like the cognate federal rule does not change the substantive law; it is merely a procedural rule. Kunzler v. Estate of Kunzler, 598 S.W.2d 139, 145 (Mo.banc 1980); see also Breeding v. Dodson Trailer Repair, 679 S.W.2d 281, 286[8, 9] (Mo. banc 1984); Hewitt v. Hutter, 432 F.Supp. 795, 799 (W.D.Va.1977) (indicating federal rules of evidence, not the federal rules of procedure, are controlling).

Admissibility of the deposition of one not a party is governed by principles similar to those which govern the admissibility of testimony taken at a former hearing or in another action. McCormick, Evidence § 256, p. 617, n. 23 (2d ed. 1972). The leading case on the subject in this jurisdiction is Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740, 142 A.L.R. 666 (1942). In that case Bartlett and his wife sued the defendant for personal injuries and loss of consortium. At that time, joinder of the two causes of action was not mandatory. The action for loss of consortium was tried first. Thereafter, Mrs. Bartlett offered in evidence two depositions which had been taken and used in her husband's action. The witnesses lived out of state, and were therefore "unavailable." In an unusually penetrating analysis, the court ruled that if testimony received at a former trial is to be received at a second hearing, the issues must be the same, because:

"If the matters at issue in the subsequent case were only collaterally and remotely involved in the former case there would be no reason to fully and carefully cross-examine as to such points at the time when the witness was available for cross-examination. Hence no real opportunity for cross-examination is had and the testimony offered in the subsequent trial is but little different than a mere ex parte affidavit. [Citation omitted.]"

Id., 349 Mo. at 17, 160 S.W.2d at 743, 142 A.L.R. at 670. The court went on to discuss and discard the notion that the parties to the different actions must be identical, and continued:

"It is said to be sufficient if the party-opponent in the subsequent case is in privity with the party-opponent in the former case. It is necessary, however, to inquire what is meant by privity as the term is used in this rule. It is sometimes insisted that the term is here used with the same connotation employed in the law of property. In Wigmore on Evidence, 3d Ed., Vol. 5, Sec. 1388, such a construction is argued forcefully against.... There is nothing in the mere fact of legal privity between the two parties opponent which makes it certain that the cross-examination in the former case will be as thorough and effective as cross-examination in the second case would have been. The only reason for assuming that cross-examination in the former case will be sufficiently effective is that the interest of the party-opponent in such case is identical with the interest of the party-opponent in the subsequent case and that his motive for adequate cross-examination is therefore the same as the motive of the second party-opponent would have been. After all the true test is one of identity of interest and not of privity as that term is used in the law of property."

Id., 349 Mo. at 20, 160 S.W.2d at 745, 142 A.L.R. at 672. The elusive phrase, no matter the discussion to which one looks, is "identity of interest," or in Dean Wigmore's statement of principle, "the same interest and motive." 5 J. Wigmore, Evidence § 1388, p. 111 (Chadbourn rev. 1974). Our Supreme Court clarified the meaning of such phrases by its opinion in Bartlett, thus:

" In the instant case there was not only clearly an identity of issues but there was a complete identity of interest between Mr. Bartlett and his wife. She could recover in this case only by showing primary negligence of the defendant in the alleged sudden forward movement of the bus, and he could recover in the former case only by showing the same identical facts. The two witnesses in the former trial testified to the nonexistence of these facts. It was to Mr. Bartlett's interest just as much as to his wife's to demonstrate, if possible, any falsity or mistake in this evidence...."

Bartlett, 349 Mo. at 21, 160 S.W.2d at 745, 142 A.L.R. at 673. The court went on to note that both the Bartletts had the same attorney. And, in Bartlett the court demonstrated it was not adopting a new rule of law by citing Harrell v. Quincy, Omaha & Kansas City R. Co., 186 S.W. 677 (Mo. banc 1916), which incidentally shows adherence to Dean Wigmore's views nearly 70 years ago. What these cases show is that the phrase "identity of interest" as used in this rule means that each party opponent against whom the deposition is offered must have had as much reason to cross-examine the witness as the other, not that they must have the same motive, which would require...

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8 cases
  • State v. Aaron
    • United States
    • Missouri Court of Appeals
    • May 1, 2007
    ...that former testimony must have addressed the same issue on which it is offered in a subsequent trial. Maxwell v. City of Springfield, 705 S.W.2d 90, 92 (Mo.App. S.D.1986). It was there held For cross-examination to be effective it must be directed to the precise issue subsequently involved......
  • Basta v. Kan. City Power & Light Co.
    • United States
    • Missouri Court of Appeals
    • December 16, 2014
    ...the time of the second trial the witness is unavailable, his testimony may be read in evidence.See also Maxwell v. City of Springfield, 705 S.W.2d 90, 93 (Mo.App.S.D.1986). Here, both Jennings and Cowan were designated as expert witnesses by the Blankenships and deposed by the parties, incl......
  • State v. Aaron, No. WD 65362 (Mo. App. 1/23/2007)
    • United States
    • Missouri Court of Appeals
    • January 23, 2007
    ...that former testimony must have addressed the same issue on which it is offered in a subsequent trial. Maxwell v. City of Springfield, 705 S.W.2d 90, 92 (Mo. App. S.D. 1986). It was there held For cross-examination to be effective it must be directed to the precise issue subsequently involv......
  • Knox v. Simmons
    • United States
    • Missouri Court of Appeals
    • July 28, 1992
    ...of such an instruction include violating the speed limit, Love v. Baum, 806 S.W.2d 72, 73 (Mo.App.1991); Maxwell v. City of Springfield, 705 S.W.2d 90, 95 (Mo.App.1986), and a failure to reduce speed prior to collision. Wright v. Fox-Stanley Photo Products, Inc., 639 S.W.2d 407, 409 (Mo.App......
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