Roush v. Alkire Truck Lines, Inc., 45344

• Decision Date: 11 March 1957
• Docket Number: No. 45344,No. 2,45344,2
• Citation: 299 S.W.2d 518
• Parties: Theodore S. ROUSH, Respondent, v. ALKIRE TRUCK LINES, Inc., a Corporation, Appellant
• Court: Missouri Supreme Court

Page 518

299 S.W.2d 518

Theodore S. ROUSH, Respondent, v. ALKIRE TRUCK LINES, Inc., a Corporation, Appellant.

No. 45344.

Supreme Court of Missouri, Division No. 2.

March 11, 1957.

Paul C. Sprinkle, Sprinkle, Knowles & Carter, Kansas City, for appellant.

John M. Langsdale, Kansas City, Robert S. McKenzie, Stubbs, McKenzie, Williams & Merrick, Kansas City, for respondent.

STOCKARD, Commissioner.

Respondent sued for $250 property damage to his automobile and $25,000 for expenses and loss of services of his wife on account of injuries sustained by her as the result of an accident when plaintiff's car was hit by defendant's truck. The trial of this action resulted in a jury verdict for $25,000. It is appellant's contention, among other things, on this appeal from the ensuing judgment that the trial court committed reversible error in permitting plaintiff's wife to relate a conversation she had with the driver of defendant's truck.

We need not make a frll statement of the facts. On November 26, 1947, plaintiff and his wife were riding in their automobile on Highway 71 near Kansas City. The traffic was rather heavy and was not moving at a fast rate. Plaintiff's version of the collision was that he was traveling in the 'inside' lane of traffic, and that when he gradually slowed his car because the line of traffic slowed down, defendant's truck hit the back of his car by reason of the driver's negligence. Defendant's version was that its driver moved the truck into the 'inside' traffic lane behind plaintiff's car preparatory to turning into a nearby weight station, and that plaintiff negligently stopped his car so suddenly with no signal, except from his automatic stop lights, that defendant's driver in the exercise of the highest degree of care had no opportunity to stop the truck before striking the back of plaintiff's car. Plaintiff's allegations as to negligence were that defendant's truck was operated at an excessive rate of speed, and that the driver of the truck failed to keep a lookout for other traffic and to keep the vehicle under control. Defendant pleaded contributory negligence on the part of plaintiff in stopping his car suddenly without a signal. There was no damage to the truck as the result of the collision, and the damage to the back of plaintiff's car was not extensive.

The only visible and external injury sustained by plaintiff's wife as the result of the collision was an abrasion or bruise on her left leg about the size of a half dollar. However, plaintiff contended and offered evidence to show that other injuries to his wife resulted from the collision which subsequently necessitated two operations and resulted in a substantial period of disability. This was a sharply contested issue. In a different and previous action plaintiff's wife sued the defendant in this case for her personal injuries resulting from this accident and obtained a jury verdict for $750. Upon her appeal this court affirmed the judgment as not being so grossly inadequate to require reversal and a new trial. Roush v. Alkire Truck Lines, Inc., Mo.Sup., 245 S.W.2d 8.

Mrs. Roush was a witness for plaintiff. According to her, plaintiff got out of his car after the collision and defendant's driver got out of his truck and the two discussed the accident. She also got out of the car 'after a few minutes.' After plaintiff had finished talking to the truck driver, he walked down the highway a short distance to a weight station to get a member of the highway patrol, and the truck driver then came to her automobile and engaged her in conversation. Over the objection of defendant, the trial court permitted Mrs. Roush to relate that conversation as follows: 'And he came to the car and he never one time asked if we were hurt or anything like that. He just said he was sorry it happened. He asked me not to report it because he had been driving so many years without an accident, and I think that month, if he had gotten through that month, he would have gotten a bonus for not having an accident. And he said--and he told us that the brakes had gone bad, he was on us before he realized, and that he wished that we wouldn't report it.' Defendant assigns the admission into evidence of this statement as error on the ground that it was hearsay and was prejudicial. Plaintiff contends the testimony was admissible as an admission by the truck driver against the interest of his employer, the defendant in this case, and also because the statement was a part of the res gestae.

The truck driver is not a party to this suit, and we necessarily note the difference between an admission of a party, or of one in privity to a party, and a declaration against interest. An admission is competent only when made by a party or by someone identified in legal interest with a party to the action, and is admissible although the declarant is available as a witness. On the other hand, a declaration is in the nature of secondary evidence and is admissible only when the declarant is not available as a witness. It is competent even though the declarant is not a party or in privity with a party to the action, but the statement of the declarant must have been adverse to an interest possessed by the declarant at the time the statement was made. McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548[1-4]. See also Vol. III, Jones Commentaries on Evidence, 2d ed., Sec. 1116; 31 C.J.S., Evidence, Secs. 217 and 219; Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284[5, 6], 162 A.L.R. 437; Wills v. Berberich's Delivery Co., 339 Mo. 856, 98 S.W.2d 569. We need not determine if the statement attributed to the truck driver was adverse to an interest possessed by him at the time, because, in any event, there was no showing that the declarant was not available, and in fact he was available and subsequently testified. Therefore, the statement was not admissible as a declaration against interest.

Admittedly there is some confusion in the cases concerning the admissibility of statements of an agent as an admission of the master. This frequently results from the failure to differentiate between the declarations of an agent which are a part of the res gestae, and those which are made in the course of his employment and while the matter in controversy was actually pending. Hearsay declarations of an agent, which are shown to be a part of the res gestae, are admitted because they come within the class of the excepted hearsay evidence, not because the declarant was an agent. The declarations of an agent made within the course of his employment and while the matter in controversy was pending are admitted, not because they were made as a part of the res gestae, but because they were made under the circumstances stated. A declaration of an agent may be admissible because of either or both reasons. Vol. VI, Wigmore, Evidence, 3rd ed. Sec. 1756a. As a general rule it may be said that an admission of an agent or employee, not a part of the res gestae, 'may be received in evidence against his principal, if relevant to the issues involved, where the agent, in making the admission, was acting within the scope of his authority, and the transaction or negotiation to which the admission relates was pending at the time when it was made. Conversely, a declaration of an agent, not within the scope of his authority nor in the course of the negotiation to which it refers, is not admissible against the principal, unless it was made under such circumstances that the silence or acquiescence of the principal makes the admission his own, * * * or was ratified by the principal.' 31 C.J.S., Evidence, Sec. 343. See also Vol. 9C Blashfield, Cyclopedia of Automobile Law and Practice, perm. ed., Sec. 6162; Vol. IV, Wigmore, Evidence, 3rd ed., Sec. 1078; Annotation, 95 Am.Dec. 73; State ex rel. S. S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W.2d 14; Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947; Yarbrough v. Wisconsin Lumber Co., Mo.App., 211 S.W. 713; Stipel v. Piggott, 219 Mo.App. 222, 269 S.W. 942; Davis v. Sedalia Yellow Cab Co., Mo.App., 280 S.W.2d 869. This rule is based upon the "wholesome law' which prohibits an agent from admitting 'away the rights of his principal" when not acting within the scope of his authority. Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557, 567. The application of the above rule to the facts of a particular case results in a question of the substantive law of agency, although this distinction is usually not made in the cases. There is nothing in this case to show the authority of the truck driver to make the statements attributed to him, and the fact that he was admittedly driving the...