Smith v. Hofer, Inc.

• Decision Date: 24 September 1985
• Docket Number: No. WD,WD
• Citation: 701 S.W.2d 451
• Parties: Charles Arthur SMITH and Linda Sue Smith, Appellants, v. HOFER, INC., Respondent. 36146.
• Court: Missouri Court of Appeals

Page 451

701 S.W.2d 451

Charles Arthur SMITH and Linda Sue Smith, Appellants, v.HOFER, INC., Respondent.

No. WD 36146.

Missouri Court of Appeals Western District.

Sept. 24, 1985.

As Modified Dec. 3, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and

Denied Dec. 3, 1985.

Charles D. Curless, Lamar, for appellants.

Rodney E. Loomer, Springfield, for respondent.

Before DIXON, P.J., and SOMERVILLE and NUGENT, JJ.

DIXON, Presiding Judge.

Plaintiffs appeal a jury verdict for defendant in an action for damages arising from a fire alleged to have been caused by defendant's truck colliding with plaintiffs' building.

Plaintiffs complain that hearsay evidence of conspiracy to commit fraud was admitted, that no evidence of arson or fraud should have been admitted, that the trial court should have granted a mistrial during voir dire because of a mention of insurance, and that the trial court should have granted a continuance during trial because of the absence of a witness.

A shop owned by plaintiffs was destroyed by fire which started after a tractor-trailer truck owned by defendant and driven by Cecil Balster struck the south garage door of the shop.When the truck struck the garage door, the door knocked over a 55-gallon can of paint thinner causing it to spill onto the floor.The paint thinner had been placed behind the door by plaintiffCharles Smith or his employee, John Thomason, on the evening before the fire.

In addition to being a close personal friend of plaintiffCharles Smith, Balster also had worked for him, had been indebted to him, and, at the time of the occurrence, was renting and living in a trailer house owned by plaintiffs, which was located near the shop.

At the time of the fire, Balster was employed as an over-the-road truck driver for defendant.On the day before the fire, Balster had driven from defendant's terminal in Pittsburg, Kansas, to Harrison, Arkansas, where he obtained a load.He thereafter returned to his home in Lamar, Missouri, arriving at approximately 6:00 to 6:30 p.m. Balster testified that, on the day preceding the fire, the truck he was driving for defendant continued to miss or "cut out" because of a faulty fuel filter.Balster further testified that he decided to have plaintiffCharles Smith change the fuel filter on the truck as he was returning from Harrison, Arkansas, to Lamar, Missouri, on January 25th.Although plaintiffCharles Smith was working in the diesel shop until approximately 10:00 p.m. on the night of the 25th, Balster didn't drive the tractor-trailer unit to the diesel shop until somewhere around 3:30 to 4:00 a.m. on January 26, 1982.

According to Balster, somewhere between 3:30 a.m. and 4:00 a.m., he drove the subject unit from his trailer house approximately one quarter mile to plaintiffs' diesel shop.Although he had never experienced any problems with the brakes on the truck, as he turned into the driveway of plaintiffs' shop and attempted to stop, the brakes suddenly and unexpectedly failed.Balster knew that plaintiffCharles Smith would not be at the shop at that time of the morning, but he intended to wake him to get him to come to the shop and change the fuel filter.

At the time of the occurrence and for several weeks before and after, John Thomason was an employee of plaintiffCharles Smith.Mark Cross was an over-the-road truck driver who lived in Lamar, Missouri.Cross testified by deposition that, shortly before the fire which occurred on January 26, 1982, he was approached by Thomason at the Apco service station located approximately a mile from the shop.At that time, Thomason offered Cross either $2,000 or $4,000 to drive the tractor-trailer truck he operated into the south garage door of plaintiffs' shop.Thomason told Cross that there would be a 55-gallon drum of paint thinner located directly behind the garage door and that all Cross had to do was drive the truck into the south door, and he would be paid.Cross rejected the offer.Approximately two weeks later he learned that the garage burned.

Prior to the taking of his deposition on December 9, 1983, Cross gave a sworn statement in which he set forth the offer made by Thomason to pay him to drive the tractor-trailer into the door of plaintiffs' shop.This statement was revealed to plaintiffs' attorney who advised plaintiffs of the statement and notified them that Cross' deposition was to be taken on a certain date.On the day before the deposition was to be taken, although plaintiffs had never heard of Mark Cross, plaintiffs drove from Lamar to Carthage, Missouri, to locate him at his place of employment.When Cross told plaintiffs that he had previously given a sworn statement and was going to testify by deposition that John Thomason had offered him money to drive his tractor-trailer unit into the south door of plaintiffs' garage, plaintiffCharles Smith suggested that Cross should change his testimony.

John Thomason gave a court reporter a statement under oath on May 11, 1982, saying plaintiffCharles Smith had offered $4,000 to have someone run a truck into the shop, and indicating that he had approached Mark Cross on plaintiffs' behalf and offered him money to do it.The content of this statement was related by the court reporter from handwritten notes because Thomason had obtained and kept the reporter's stenographic notes.Thomason later, by deposition, denied that he had made such an offer to Cross.Neither Cross nor Thomason appeared at trial.Their testimony was preserved through depositions.Some other details of evidence will be noted in connection with the points raised.

If the trial court's admission of the evidence may be sustained on any ground, it does not matter what ground the parties urge in support of the court's ruling.Even if the deposition of Cross is considered hearsay, it is admissible under the exception to the hearsay rule for the statements of co-conspirators made in furtherance of the conspiracy.State v. Garton, 371 S.W.2d 283, 287-88(Mo.1963);State v. McCollum, 598 S.W.2d 198, 200(Mo.App.1980).The existence of the conspiracy necessary to permit admission of the statements of a co-conspirator may be shown by circumstantial evidence.State v. Baldwin, 358 S.W.2d 18, 24(Mo.1962).

In the instant case, the facts and circumstances shown in the evidence strongly support the existence of a conspiracy to destroy the plaintiffs' building for the purpose of collecting damages.The defendant's purported agent and truck driver, Balster, lived in a trailer owned by the plaintiffs, was indebted to the plaintiffs, and was a close friend of plaintiffCharles Smith.The trailer in which he lived was located adjacent to the premises that were destroyed.On the day before the fire, Balster drove his truck many miles without difficulty.He arrived at the trailer adjacent to the plaintiffs' place of business at about 6 p.m., and although plaintiffCharles Smith was working in the garage, did not take his truck there to have it repaired for its ostensible "fuel problem" until the next morning.At 3:30 or 4:00 in the morning, Balster drove the truck to the plaintiffs' building, crashed into the door of the building upsetting the barrel of paint thinner, and claimed either the brakes did not work or the truck skidded.There was no evidence of skid marks and Balster had filled out a trip log for the haul made on the previous day which indicated no difficulty with the truck brakes nor any other mechanical difficulty.Balster moved the truck away from the burning garage without difficulty.PlaintiffCharles Smith, when the fire was discovered, did not use an available fire extinguisher nor the telephone, but made an attempt to save some minor items from the building.

PlaintiffCharles Smith's testimony concerning the time when the paint thinner was purchased and stored in the building was contradictory, as well as his testimony regarding the location of the thinner and the manner of its placement in the building.There was evidence plaintiffCharles Smith removed and stored a large number of parts in a separate trailer prior to the fire, and this trailer was taken away from the premises shortly after the fire.Thomason was an employee of plaintiffCharles Smith, was admittedly in dire straits and needed his job.The evidence showed the plaintiffs were in financial difficulty.Thomason admitted to an officer of the defendant that the fire was intentionally set.No customer's work was in the building on the night of the fire.

The plaintiffs, when told of Cross's statements, went to Cross and urged him to agree with the statements made by Thomason concerning the fire, and specifically requested Cross to change his story concerning Thomason's offer to him.

These circumstances are sufficient to constitute the existence of a conspiracy sufficient to admit the statements of Thomason that he had been offered $4,000 by plaintiffCharles Smith to find somebody to run into the garage and cause the fire as well as Thomason's statements to Cross that he would pay Cross to run into the door of the garage.There was no error in the admission of these statements.

While it is true that the law concerning co-conspirators' statements has developed in the criminal context, there is no reason why a statement that can be used to convict of a criminal offense and impose imprisonment--or even death--cannot be utilized to prove a relevant fact in a civil action arising out of the subject matter of the conspiracy.In a remarkably analogous case, a federal...