Pettus v. Casey, 48739

• Decision Date: 11 June 1962
• Docket Number: No. 48739,No. 2,48739,2
• Citation: Pettus v. Casey, 358 S.W.2d 41 (Mo. 1962)
• Parties: Charles A. PETTUS, Appellant, v. A. R. CASEY, d/b/a Casey Hardware Co., Respondent
• Court: Missouri Supreme Court

Page 41

358 S.W.2d 41

Charles A. PETTUS, Appellant, v.A. R. CASEY, d/b/a Casey Hardware Co., Respondent.

No. 48739.

Supreme Court of Missouri, Division No. 2.

June 11, 1962.

Derrick & Holderle, Tyree C. Derrick, St. Louis, Robert A. McIlrath, Flat River, for appellant.

Roberts & Roberts, J. Richard Roberts Farmington, Dearing, Richeson & Weier, Hillsboro, for respondent.

STORCKMAN, Judge.

The plaintiff obtained a verdict and judgment of $25,000 for personal injuries alleged to have been received as the result of a collision of motor vehicles.The defendant's motion for new trial was sustained and the plaintiff appealed.

In ruling the motion for new trial, the trial court failed to specify of record the grounds upon which the new trial was granted.S.Ct.Rule 83.06(b), V.A.M.R.Nevertheless, the appellant did not serve on the respondent the statement provided by the rule which would have required the respondent to file the first brief and to assume from the beginning the burden of supporting the trial court's action.The rule provides that such statement shall be served 'on or before the time required for filing the transcript on appeal.'Instead, the appellant filed the original brief which was devoted to establishing the procedures which are plainly provided by the supreme court rule.The respondent in his brief specified two instances in which he claimed the trial court erred in admitting evidence over his objection.The appellant then filed the reply brief.The appellant's failure to file the statement provided by the rule resulted in his filing an unnecessary brief.It deprived the defendant of his right to file the reply brief.The court is in effect deprived of the benefit of any reply brief.In the circumstances of this case, however, we are not called upon to decide what, if any, effect such failure has upon the burden imposed by the rule and we do not do so.We mention the matter as a caveat that the rule should be followed for the benefit of all concerned.

Because of the limited issues presented on appeal, it will not be necessary to make an extensive statement of the facts.The plaintiff lived in Desloge, Missouri, and was employed as a hoisting engineer by the Meramec Mining Company at one of its mines northwest of Potosi.He traveled by automobile to and from work each day.On September 9, 1958, the plaintiff, accompanied by a fellow workman, was driving his automobile eastward on Highway 8 when he encountered a school bus headed westward and stopped on the highway to pick up school children.The crest of a hill was a short distance west of where the bus was stopped.The plaintiff brought his automobile to a stop on the south half of the highway with its front end about three or four feet west of the front end of the bus.The plaintiff's automobile had been stopped in this position for at least thirty seconds when it was struck from the rear by the defendant's truck being operated by defendant's employee, Ernest Walton, eastwardly on Highway 8 and was knocked eastwardly a distance of about thirty-five feet.The plaintiff testified that as a result of the collision his head was thrown backward and forward in a whiplash fashion and that he has suffered from pains in the back, neck and head, and some atrophy and pain in the left arm and leg.The defendant's liability, as well as the nature and extent of plaintiff's injuries, were disputed.

The defendant's first contention is that the trial court committed prejudicial error in allowing the plaintiff to read into evidence as a part of plaintiff's case portions of the deposition of Ernest Walton, the defendant's truck driver, who was in the courtroom at the time but was not called as a witness.The plaintiff offered parts of the deposition as 'statements against interest'.The defendant objected but the court permitted parts selected by the plaintiff to be read to the jury.In general the portions read tended to prove that the witness Walton was employed by the defendant and was driving the truck delivering 'bottle gas' at the time of the accident; that he did not see the plaintiff's automobile until he'tipped over the hill' at which time it was 100 or perhaps 150 feet down the road; that he was driving 40 to 45 miles an hour and could see the top of the school bus before he saw the plaintiff's automobile; that he applied his brakes and skidded 75 to 80 feet before striking the plaintiff's automobile from the rear.At the conclusion of the reading of the statements from the deposition, the defendant moved that the evidence be stricken which motion was denied.The defendant then moved for a mistrial on the ground the admission of the evidence was erroneous and prejudicial.This motion was also denied.Although Mr. Walton was in the courtroom, he was not offered as a witness by either the plaintiff or the defendant.Nothing further was offered from the deposition by either party.

As a general rule, a deposition cannot be read in evidence where the deponent is present in court except to impeach his testimony as a witness or as an admission against interest.Winegar v. Chicago, B. & Q. R. Co., Mo.App., 163 S.W.2d 357, 367;Wilt v. Moody, Mo., 254 S.W.2d 15, 18;Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543, 38 S.W. 458, 465.Since Mr. Walton did not testify at the trial, the evidence was not admissible for impeachment purposes.In fact it was not offered on that theory.

The excerpts from the deposition of Mr. Walton were not competent as admissions against interest because the deponent was not a party to the action nor was he in privity with any party to the action.Roush v. Alkire Truck Lines, Mo., 299 S.W.2d 518, 520-521.There was no attempt to justify the reading of the deposition for any of the reasons specified in S.Ct.Rule 57.29, V.A.M.R.Clearly, the court erred in permitting the depositional statements to be read in evidence.

The plaintiff...