Neely v. Kansas City Public Service Co.

• Citation: 241 Mo.App. 1244,252 S.W.2d 88
• Decision Date: 06 October 1952
• Docket Number: No. 21723,21723
• Parties: NEELY v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 88

252 S.W.2d 88

241 Mo.App. 1244

NEELY v. KANSAS CITY PUBLIC SERVICE CO.

No. 21723.

Kansas City Court of Appeals, Missouri.

Oct. 6, 1952.

Charles L. Carr, F. L. Thompson, Sam Mandell, Kansas City, Popham Thompson, Popham Mandell & Trusty, Kansas City, of counsel, for appellant.

William C. Reynolds, Sprinkle, Knowles & Carter, Kansas City, for respondent.

DEW, Judge.

Respondent, as plaintiff in the trial court, sought to recover damages to his parked automobile which, it was alleged, was run into and damaged by a passenger bus owned and operated by defendant. There was a verdict for the plaintiff for $1,500, and judgment accordingly. Defendant has appealed.

The petition charged negligence in failing to keep the bus under control, failure to keep a lookout for cars approaching the intersection in question, failure to stop the bus, and violations of certain speed ordinances of Kansas City. The answer was in the nature of a general denial.

Plaintiff lived in a house facing on Brooklyn Avenue at the northeast corner of the intersection of that street and 33rd Street, a residential section of Kansas City. Brooklyn is 37 feet wide and runs north and south, and 33rd Street is about 27 feet wide and runs east and west. The immediate approach on 33rd Street toward Brooklyn from the west is considerably downgrade. About midnight on September 1, 1948, plaintiff's 1939 Cadillac was parked adjacent to the curb in front of the plaintiff's residence, facing north and was about 33 feet north of 33rd Street. Plaintiff did not see the accident to his car but heard the noise, saw the crowd gathering and went out to investigate. There he found his car pushed 100 feet to the north where it was rammed into a car ahead, which in turn had been pushed into another car ahead, which itself had been shoved into a telephone pole. Defendant's bus had partially telescoped the rear of plaintiff's car. Across the street near the corner and resting diagonally over the sidewalk and parking was a 1935 Cadillac car which had also been involved in the accident, and which was also badly damaged by the collision.

According to the evidence the defendant's bus, just prior to the collision, was northbound on Brooklyn, approaching 33rd Street From the south and at the same time the 1935 Cadillac car, containing four young men aged from 16 to 19, respectively, was approaching Brooklyn Avenue from the west on 33rd Street. The driver and owner of the 1935 Cadillac was Kenneth Messick, aged 19, who is not a party to this action and who, at the time of the trial, was shown to be in the state of Washington. The bus and the Messick car collided with great force near the central portion of the intersection. The front right wheel and fender of the Messick car and the front left side of the bus came together with such impact as to hurl the operator of the bus from his seat to the floor, causing him to lose control of the bus, which veered to the right and into the rear of the plaintifff's parked car. The Messick car was turned and shoved over the walk and parking on the west side of Brooklyn, just south of the intersection. City ordinances in question were introduced.

There was extremely divergent testimony as to the speed of the bus and the speed of the Messick car; as to which first reached the intersection; and as to the relative location of the two approaching vehicles just prior to reaching the intersection. Defendant sought to prove by the bus driver that immediately after the accident in a conversation in which he participated with Kenneth Messick, a police officer and the plaintiff, Messick stated that he had approached the intersection at 40 to 50 miles an hour, and that his brakes were not operating. On objection this evidence was excluded. Also a police officer at the scene testified that he found the brakes on Messick's car defective, and upon objection by the plaintiff, was not allowed to testify that Messick stated to the officer that he (Messick) approached the intersection at about 50 miles an hour, and that his brakes were defective.

Defendant's first contention is that the court erred in refusing to admit testimony of Messick's statements as to his own excessive speed and defective brakes. It is urged that such statements were declarations against interest, constituting competent and relevant evidence, and were admissible because Messick was out of the state and not available as a witness. Defendant argues that Messick saw the damage done, knew that his high speed in approaching the intersection and with defective brakes was gross negligenc on his part, contributing to, if not the sole cause of the collision; knew that he had violated the law as to speed and brakes, and must have realized that his neligence solely caused the damages so brought about. Under such conditions, the defendant contends, the said declarations of Kenneth Messick were admissible.

The plaintiff's position is that Messick was not a party to this action nor a witness at the trial; that Messick's car never came in contact with the plaintiff's car; that he had no pecuniary, proprietary or penal interest in the matter to form a basis for a declaration against interest or a proper exception to the hearsay rule; that a mere possibility of a civil action against him was not sufficient reason for a declaration against interest; that, furthermore, there was already direct evidence in the case as to Messick's speed and defective brakes, rendering his alleged declarations cummulative at best, and that even if otherwise proper, they became subject to admission or exclusion in the sole discretion of the trial judge. Plaintiff argues also that if defendant was negligent and such negligence contributed to cause the collision, then Messick's neligence would be no defense. Plaintiff does not challenge the unavailability of the witness Messick, as to which there was the mere proof that he was in the State of Washington at the time of the trial.

There is a vital distinction between admissions against interest and declarations against interest. Admissions against interest are those made by a party to the litigation or by one in privity with or identified in legal interest with such party, and admissible whether or not the declarant is available as a witness. Declarations against interest are those made by persons not a party or in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule, admissible only when the declarant is unavailable as a witness. The rule has developed to include declarants other than deceased persons, to whom only it was originally applied, and now includes declarants unavailable for other reasons, such as insanity, exemptions under constitutional privileges and absence from the jurisdiction. 31 C.J.S., Evidence, Sec. 217, page 958; Jones on Evidence, Civil Cases, 4th Ed., Vol. 1, Secs. 323 to 330. To be admissible such a declaration must spring from the peculiar means of knowledge of the matter stated, must be against the interest of the declarant at the time made, and such interest must be so apparent as to have been presumably in the declarent's mind when made. McComb v. Vaughn, 358 Mo. 951, 955, 218 S.W.2d 548, 551. Tennison v. St. Louis-San Francisco Ry. Co., Mo.Sup., 228 S.W.2d 718. The basis of such exception to the hearsay rule is stated in the late case of Osborne v. Purdome, Mo.Sup., 250 S.W.2d 159, 163, as follows: 'The theory of admissibility of declarations against interest is that they are trustworthy because the declarant would not concede, even to himself, the existence of a matter contrary to his interest unless he believed it to be true. (See 5 Wigmore on Evidence, 262, Sec. 1457; American Law Institute Model Code of Evidence, Rule 509, comment c.) We do not think it is necessarily a question of how much it is against the declarant's interest; if the matter declared has the quality of being directly and immediately against the declarant's interest that should be sufficient.' See, also, Wigmore on Evidence, 3rd Ed. Sec. 1457; Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 162 A.L.R. 446.

In the McComb case, supra, an operator of a motorcycle was killed after dark in a collision with a truck driven by the defendant. defendant offered a witness to prove that earlier in the evening when the deceased stopped at Cardwell, Missouri, en route to his final destination, he admitted that he had driven from Gideon to Cardwell without lights on his motorcycle, and that the lights of approaching motor cars blinded him. Later, after reaching the final destination of his trip and having there eaten supper with his sister, deceased and his sister as a passenger on the rear seat, road on the motorcycle on a proposed errand to a nearby oil station, and on this latter trip the collision occurred and deceased was killed. The court defined the distinction between an admission against interest made by a party to a suit or one in privity with such party, and a declaration of a third person against his own proprietary, pecuniary or penal interest, and said of the latter at page 955 of 358 Mo., at page 551 of 218 S.W.2d: 'It is competent in any action in which it is relevant, even though the declarant is not a party or in privity with a party to the action. But the statement of declarant, in order to be admissible as a declaration against interest, must have been adverse to an interest possessed by declarant at the time the statement was made, and the interest must be so apparent as to have presumably been in the mind of declarant at the time the statement was made.' The Court, however, held that the alleged declaration made at Cardwell was inadmissible because at that time the declarant had yet no pecuniary or proprietary interest in any claim for his injuries, even though his statement would tend to prove that he had not complied with statutory requirements as to lights prior to his stop at...