Pyles v. Bos Lines, Inc.

• Decision Date: 16 April 1968
• Docket Number: No. 32825,32825
• Citation: Pyles v. Bos Lines, Inc., 427 S.W.2d 790 (Mo. App. 1968)
• Parties: Doris M. PYLES, Plaintiff-Respondent, v. BOS LINES, INCORPORATED, Defendant-Appellant, and Kenneth E. Malone, Co-Defendant.
• Court: Missouri Court of Appeals

Page 790

427 S.W.2d 790

Doris M. PYLES, Plaintiff-Respondent, v. BOS LINES, INCORPORATED, Defendant-Appellant and Kenneth E. Malone, Co-Defendant.

No. 32825.

St. Louis Court of Appeals, Missouri.

April 16, 1968.

Armstrong, Teasdale, Kramer & Vaughan, Richard J. Sheehan, John J. Cole, Fred Leicht, Jr., St. Louis, for defendant-appellant.

George G. White, Donald M. Witte, Brentwood, Richard E. Baker, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

Plaintiff Doris M. Pyles recovered a verdict and judgment for $6500 against defendants Bos Lines, Incorporated and Kenneth E. Malone for personal injuries sustained when her husband's car in which she was a passenger was rear-ended by a truck-tractor owned and operated by Malone, who had leased it to Bos Lines. Separate appeals were filed by the defendants but that of Malone was dismissed for failure to perfect and to comply with the rules. Subsequently a suggestion of the death of Malone was filed.

Inasmuch as no point concerning the negligence of Malone or the extent of plaintiff's injuries has been raised by Bos Lines it is sufficient to say that the accident occurred on November 29, 1963, at approximately 3:30 P.M., on Lindbergh Boulevard, a four-lane, nondivided, north-south highway in St. Louis County, at a point just north of the entrance to the old airport building. Mr. Pyles, driving a 1957 Chevrolet sedan, with plaintiff in the right front seat, was proceeding at about 25 m.p.h. in the north-bound lane adjacent to the center line when he observed two cars preceding him in that lane slowing to a stop to await the clearance of opposing traffic before making a left turn. Pyles brought his vehicle to a stop approximately 5 to 10 feet behind the automobile stopped immediately in front of him, and after it had been at rest about one minute it was violently struck in the rear by the tractor driven by Malone.

Bos Lines' initial contention is that there was not sufficient competent evidence to warrant the submission to the jury of the question of whether Malone, at the time of the collision, was operating his tractor within the scope and course of his agency. It also maintains that the trial court erred in permitting the plaintiff, over its objections, to read to the jury Malone's answers to certain interrogatories propounded to him and various excerpts from his deposition. Since in determining whether plaintiff made a submissible case we may consider only that evidence which was properly admitted we must resolve these points in their inverse order.

Despite the fact that Malone was present in the courtroom, and over proper objections made by Bos Lines, the court permitted plaintiff to read various interrogatories which had been propounded to Malone by plaintiff, and his answers thereto, without informing the jury that such evidence was only to be considered as admissions by Malone against his interest. Later in the trial the court also permitted plaintiff, over defendant's objection, to read to the jury excerpts from Malone's deposition without limiting their applicability. It is clear that the court erred in permitting plaintiff to read the interrogatories propounded to Malone and his answers thereto, and to read from his deposition, without informing the jury that they were to be considered only as admissions by Malone against his interest. For the general rule is that a deposition cannot be read in evidence when the deponent is present in court except to impeach his testimony as a witness or as an admission against his interest. Civil Rule 57.29(b), V.A.M.R.; Pettus v. Casey, Mo., 358 S.W.2d 41; Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543, 38 S.W. 458; Winegar v. Chicago, B. & Q.R. Co., Mo.App., 163 S.W.2d 357. The same rule applies to interrogatories and answers thereto. Civil Rule 56.01, V.A.M.R.; Gibson v. Newhouse, Mo., 402 S.W.2d 324; Smith v. Trans World Airlines, Inc., Mo.App., 358 S.W.2d 91. While Malone's deposition and his answers to the interrogatories were admissible against him as admissions against his interest they were not admissible against or binding on Bos Lines, and the jury should have been so informed. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947; State ex rel. Kroger Co. v. Craig, Mo.App., 329 S.W.2d 804. It follows that in determining whether plaintiff made a submissible case against Bos Lines we must exclude such evidence from our consideration.

Mr. Pyles testified that the words and figures, 'Bos Lines, Marshalltown, Iowa, truck 101' were on a sign attached to the side of the trailer, that he copied them on a piece of paper at the scene of the accident, introduced as plaintiff's Exhibit H (but not filed here with her other exhibits), and that the license number on the tractor, issued by the state of Iowa, was also written on the paper by him or Malone. Plaintiff also read certain interrogatories propounded to Bos Lines and its answers thereto, the substance of which was that Bos Lines did not know the exact destination of Malone (at the time of the collision) but understood that he was on his way to pick up a new tire for his vehicle; and that it had a written contract with Malone at the time of the occurrence, which had been lost or destroyed and was unavailable, but a specimen copy was supplied. The specimen copy was marked plaintiff's Exhibit I, offered and received in evidence without objection, and the following portions read to the jury:

'1. The Lessor (Malone) shall surrender full control, possession and management of said equipment to the Lessee (Bos Lines) during the term of this lease which shall start at the delivery of equipment at the point of origin as designated above and end with delivery of cargo at destination as designated above, and the (Lessor further agrees to operate said equipment as directed by Lessee) and the Lessor shall furnish the driver, and shall pay the driver for his services, and shall withhold any withholding or social security tax required by the United States Government. Provided, however, that during the time this lease shall be in force as above provided such driver shall be subject to the control and supervision of the Lessee.

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'3. The Lessor agrees to deliver to the Lessee the above equipment in good running order and condition; maintain the same in good working condition, furnishing all necessary oil, gasoline, tires and repairs for the operation of said equipment and pay all other expenses incident to such operation.

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'7. In the event that the equipment referred to herein is not in proper mechanical condition or for any other reason is deemed inadequate to the Lessee, then the Lessee shall have authority to transfer any shipment from this equipment and handle same according to the best judgment of the Lessee.

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'10. Lessor shall keep, maintain and equip said vehicles in good condition and in accordance with all local, state and Federal laws and the rules and regulations of the Interstate Commerce Commission and commissions of the states through which said vehicles are to be operated, at lessor's cost and expense.'

We are of the opinion that the foregoing evidence was sufficient to raise the procedural presumption that Malone was acting within the scope of his agency at the time of the occurrence. Terminal...