Rowe v. Farmers Ins. Co., Inc., No. 66595

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWELLIVER; HIGGINS, C.J., and FINCH; BILLINGS; RENDLEN, J., dissents and concurs in separate dissenting opinion of BILLINGS; ROBERTSON; BLACKMAR; DONNELLY; BILLINGS
Citation699 S.W.2d 423
PartiesRichard ROWE, Respondent, v. FARMERS INSURANCE COMPANY, INC., a Corporation, Appellant.
Decision Date16 October 1985
Docket NumberNo. 66595

Page 423

699 S.W.2d 423
54 USLW 2236
Richard ROWE, Respondent,
v.
FARMERS INSURANCE COMPANY, INC., a Corporation, Appellant.
No. 66595.
Supreme Court of Missouri,
En Banc.
Oct. 16, 1985.

Daniel E. Wilke, Richard R. Kordenbrock, Clayton, for appellant.

James E. Spain, Poplar Bluff, for respondent.

WELLIVER, Judge.

The appellant, Farmers Insurance Company, appeals from the jury verdict which held appellant liable on a contract of insurance issued to the respondent, Richard Rowe. The Court of Appeals, Southern District, affirmed the judgment. This Court ordered transfer to consider whether a party could impeach his own witness. We reverse and remand the case for a new trial.

I

Respondent's car was found burning by Missouri Highway Patrol Officer Overbey, at about 1:00 A.M., on August 13, 1982. The 1981 Ford L.T.D. was aflame in a lonely rural field approximately 7 miles from respondent's home. Respondent filed a claim with appellant, his automobile insurance company. The claim was disallowed and respondent brought this action.

At trial, appellant contended that respondent either had his car torched to collect the insurance proceeds or later learned who burned his car and did not report this information to the police or to appellant. Appellant called Chester Carroll as a witness. Carroll is respondent's first cousin. On November 22, 1982, Carroll allegedly made several statements to Officer Overbey. Officer Overbey was prepared to testify that Carroll told him on November 22, 1982, that he overheard respondent tell another man that respondent was going to burn his Ford L.T.D. in order to acquire a four wheel drive pickup truck. This conversation, overheard by Carroll, occurred before the Ford was burned.

Carroll's deposition had been taken on June 23, 1983. Respondent visited Carroll about one week before the deposition. In this meeting, respondent and Carroll talked about respondent's suit against the appellant. At trial and in his deposition, Carroll denied overhearing any conversation between respondent and another man. The trial court did not allow the appellant to introduce evidence and expose Carroll's prior inconsistent statement made to Officer

Page 424

Overbey, relying on the rule that a party may not impeach his own witness.

Appellant also sought to introduce deposition testimony of Ms. Peggy Slavings. Slavings was living with respondent at the time his car was burned. She could not be found to be subpoenaed to testify and she did not appear at trial. On the evening of September 19, 1982, Slavings gave a signed statement to Officer Overbey in which she stated that she saw respondent give his car to three people the night it was burned. In addition, she stated that later respondent's son told respondent that someone saw the son deliver the car to Clyde and Lloyd Brown on the night the car was set ablaze. The court did not allow appellant to read the portion of Slavings' deposition in which she denied making the assertions contained in the signed statement. The court also refused to allow the signed statement obtained by Trooper Overbey to be admitted into evidence. The court gave as its reason that a party cannot impeach its own witness.

The jury returned a verdict for respondent.

II

Missouri has consistently followed the ancient rule that a party cannot impeach his own witness. State v. Armbruster, 641 S.W.2d 763 (Mo.1982). This rule had its beginnings in the primitive English practice of each side to a dispute gathering oath helpers to swear off against the oath helpers for the opposing side. 3A Wigmore, Evidence § 896 (Chadbourn rev. 1970). Oath helpers were partisans and never were witnesses in the modern sense of having personal knowledge of the matter at issue. The credibility accorded oath helpers could influence the outcome of the litigation. The practice of not questioning the credibility of a party's own oath helpers later was applied to the party's own witnesses by English common law courts and later by Missouri courts. See 3A Wigmore, Evidence § 896 (Chadbourn rev. 1970); Dunn v. Dunnaker, 87 Mo. 597 (1885); Chandler v. Fleeman, 50 Mo. 239 (1872), overruled, Wells v. GoForth, 443 S.W.2d 155 (Mo. banc 1969); Brown v. Wood, 19 Mo. 475 (1854).

No valid reason for this anachronistic rule would seem to exist today. Commentators have favored abolishing the rule and during the last few decades the overwhelming majority of jurisdictions have followed by allowing a party to impeach his own witnesses with prior inconsistent statements. Comment, Impeaching One's Own Witness in Missouri, 37 Mo.L.Rev. 507, 522-23 (1972). See also McCormick, Handbook of the Law of Evidence § 38 (3d ed. 1984); Ladd, Impeachment of One's Own Witness--New Developments, 4 U.Chi.L.Rev. 69 (1936); Morgan & Maguire, Looking Backward and Forward at Evidence, 50 Harv.L.Rev. 926 (1937); Schatz, Impeachment of One's Own Witness: Present New York Law and Proposed Changes, 27 Cornell L.Q. 377 (1942); Comment, Impeaching One's Own Witness, 49 U.Va.L.Rev. 996 (1963). Professor Morgan stated that the rule "has no place in any rational system of investigation today." 1 Morgan, Basic Problems of Evidence 64 (1954).

Parties no longer freely pick their witnesses as they freely picked "oath helpers." Today, parties are forced to take their witnesses as they find them. Since parties may not know their witnesses or be familiar with their honesty or credibility, it seems foolish to talk about a party guaranteeing the credibility of his witnesses.

Witnesses are not made to order.--at least, not by honest people.... If a lawsuit was a manufacture, and the party bringing it could select his materials--facts and witnesses--there might be some propriety in holding him responsible for the character of these materials; but, as both are beyond his control, his responsibility for their character is out of the question.

3A Wigmore, Evidence § 898 (Chadbourn rev. 1970) (quoting May, Some Rules of Evidence, 11 Am.L.Rev. 264 (1876)).

The ability of courts and juries to determine the truth of an event is not served by creating a limitation that a party not impeach

Page 425

his own witnesses. 3A Wigmore, Evidence § 898 (Chadbourn rev. 1970). With the information provided by impeachment, the jury can consider the witness's credibility and more accurately draw inferences from the testimony. The jury should not be denied information about the credibility of witnesses solely because of who called the witness.

Some supporters of the orthodox rule contend that allowing impeachment permits the calling party to coerce favorable testimony. Dean Wigmore dismissed this justification stating:

But, after all it is a reason of trifling weight. It cannot appreciably affect an honest and reputable witness. The only person whom it could really concern is the disreputable and shifty witness; and what good reason is there why he should not be exposed?

3A Wigmore, Evidence § 899 (Chadbourn rev. 1970).

These reasons have persuaded the overwhelming majority of jurisdictions to abandon the orthodox rule. 1 McCormick, Handbook of the Law of Evidence § 38, at 84 (3d ed. 1984). Along with these jurisdictions, the American Law Institute's Model Code of Evidence, adopted more than 40 years ago, expressly stated that the calling party could impeach a witness. Model Code of Evidence Rule 106 (1942). More recently, the Federal Rules of Evidence provide that, "[t]he credibility of a witness may be attacked by any party, including the party calling him." Federal R. of Evid. 607. The Uniform Rules of Evidence, promulgated in 1974, have a provision identical to that of the Federal Rules of Evidence allowing impeachment of a witness by a calling party. Uniform Rules of Evidence 607 (1974).

Based upon our own analysis and the experience of the vast majority of jurisdictions including the federal courts, we conclude that the time has come for us to recognize the right of any party to introduce a prior inconsistent statement to impeach any witness regardless of by whom the witness may have been subpoenaed or called. To the extent that prior civil cases have held to the contrary, they shall no longer be followed.

III

Having decided that a party may introduce prior inconsistent statements to impeach his own witness, we must now address the related question of whether prior inconsistent statements can be considered as substantive evidence in civil trials. Missouri generally has followed the orthodox standard that inconsistent statements made by a witness out of court are hearsay and inadmissible for the truth of the matter asserted.

The traditional rule requiring the exclusion of all prior inconsistent statements as substantive evidence is flawed. See generally, State v. Granberry, 491 S.W.2d 528, 534, (Mo. banc 1973) (Finch, J., concurring). The United States Court of Appeals for the Second Circuit has observed:

The rule limiting the use of prior statements by a witness subject to cross-examination to their effect on his credibility has been described by eminent scholars and judges as "pious fraud," "artificial," "basically misguided," "mere verbal ritual,"

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and an anachronism "that still impede(s) our pursuit of the truth."

United States v. DeSisto, 329 F.2d 929 (2nd Cir.1964) (quoting Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 193 (1948)). The chief flaw is that the inconsistent statements of witnesses often are relevant to more than just the credibility of the witness. State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982); Nugent v. Commonwealth, 639 S.W.2d 761 (Ky.1982). The inconsistent statement made by a witness may be more reliable and believable than a statement made at trial.

The possible relevance of inconsistent statements can be seen in the facts of the present case. The trial court did not allow the jury to learn of the statements made by Chester Carroll to Officer Overbey. Carroll had told...

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42 practice notes
  • Byrd v. Armontrout, No. 87-1966C-(1).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • June 9, 1988
    ...statement to impeach any witness regardless of by whom the witness may have been subpoenaed or called." Rowe v. Farmers Insurance Co., 699 S.W.2d 423, 425 (Mo. banc 1985). In addition, for certain criminal cases, Missouri has enacted a statute permitting prior inconsistent statements to be ......
  • State v. Clay, No. 78373
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1998
    ...State was not free to pick its witnesses, so trial counsel was not ineffective for failing to object. See Rowe v. Farmers Ins. Co., Inc., 699 S.W.2d 423, 424 (Mo. banc 1985). Appellant asserts that trial counsel was ineffective for failing to object to several improper arguments by the Stat......
  • James v. Wilson, No. 1999-CA-000787-MR.
    • United States
    • Kentucky Court of Appeals
    • April 19, 2002
    ...a declarant's then-existing mental, emotional, and physical condition" [footnotes omitted].); Rowe v. Farmers Insurance Co., Inc., Mo., 699 S.W.2d 423 (1985)(The insurance company refused to pay proceeds to insured because it believed he conspired to commit arson. At trial, the insurance co......
  • Modesitt v. State, No. 11S04-9109-CR-755
    • United States
    • Indiana Supreme Court of Indiana
    • September 26, 1991
    ...639 S.W.2d 761; Massachusetts: Commonwealth v. Daye (1984), 393 Mass. 55, 469 N.E.2d 483; Missouri: Rowe v. Farmers Ins. Co. (Mo.1985), 699 S.W.2d 423; Pennsylvania: Commonwealth v. Brady (1986), 510 Pa. 123, 507 A.2d 66; South Carolina: State v. Copeland (1982), 278 S.C. 572, 300 S.E.2d 63......
  • Request a trial to view additional results
42 cases
  • Byrd v. Armontrout, No. 87-1966C-(1).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • June 9, 1988
    ...statement to impeach any witness regardless of by whom the witness may have been subpoenaed or called." Rowe v. Farmers Insurance Co., 699 S.W.2d 423, 425 (Mo. banc 1985). In addition, for certain criminal cases, Missouri has enacted a statute permitting prior inconsistent statements to be ......
  • State v. Clay, No. 78373
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1998
    ...State was not free to pick its witnesses, so trial counsel was not ineffective for failing to object. See Rowe v. Farmers Ins. Co., Inc., 699 S.W.2d 423, 424 (Mo. banc 1985). Appellant asserts that trial counsel was ineffective for failing to object to several improper arguments by the Stat......
  • James v. Wilson, No. 1999-CA-000787-MR.
    • United States
    • Kentucky Court of Appeals
    • April 19, 2002
    ...a declarant's then-existing mental, emotional, and physical condition" [footnotes omitted].); Rowe v. Farmers Insurance Co., Inc., Mo., 699 S.W.2d 423 (1985)(The insurance company refused to pay proceeds to insured because it believed he conspired to commit arson. At trial, the insurance co......
  • Modesitt v. State, No. 11S04-9109-CR-755
    • United States
    • Indiana Supreme Court of Indiana
    • September 26, 1991
    ...639 S.W.2d 761; Massachusetts: Commonwealth v. Daye (1984), 393 Mass. 55, 469 N.E.2d 483; Missouri: Rowe v. Farmers Ins. Co. (Mo.1985), 699 S.W.2d 423; Pennsylvania: Commonwealth v. Brady (1986), 510 Pa. 123, 507 A.2d 66; South Carolina: State v. Copeland (1982), 278 S.C. 572, 300 S.E.2d 63......
  • Request a trial to view additional results

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