Starr v. Morsette

• Decision Date: 21 November 1975
• Docket Number: No. 9135,9135
• Parties: Gordon STARR, Plaintiff and Appellee, v. Alfred MORSETTE, Jr., and Geneva Morsette, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 183

236 N.W.2d 183

Gordon STARR, Plaintiff and Appellee, v. Alfred MORSETTE, Jr., and Geneva Morsette, Defendants and Appellants.

Civ. No. 9135.

Supreme Court of North Dakota.

Nov. 21, 1975.

Syllabus by the Court

1. An appellant who claims that the evidence is insufficient to support a finding of the trial court has the duty to provide the appellate court with a transcript of all the relevant evidence on that point. Rule 10(b), N.D.R.App.P.

2. Statements by appellant driver that her codefendant grabbed the steering wheel are admissible against her as admissions of a party, either as nonhearsay or as an exception to the hearsay rule.

3. Admissibility of an admission by a party-opponent is not dependent upon her presence in court, opportunity to cross-examine, or impeaching or inculpatory nature of the statement.

4. The term 'res gestae' is disapproved, and more precise descriptions of the various concepts included in the term should be used.

5. A statement of a witness may be an 'excited utterance' and admissible even though made in response to a question.

6. Admissions of parties-opponent are subject to requirements for admissibility which differ from those for admissions against interest, the various exceptions to the hearsay rule sometimes called 'res gestae,' and prior inconsistent statements used for impeachment.

7. Admissions of a party-opponent are received as substantive evidence.

8. An admission of a party-opponent is admissible even though self-serving when made.

9. It is discretionary with the trial court to deny a motion for directed verdict at the end of the plaintiff's case even if the evidence would justify granting the motion, and it is the better practice to deny the motion at that time.

10. If a motion for directed verdict is denied or decision reserved at the end of the plaintiff's case, the moving party waives any right to assert insufficiency of evidence if he presents evidence thereafter. If a motion for directed verdict is made at the end of the entire case, the sufficiency of the evidence is to be determined as of the time the latter motion is made.

11. Evidence insufficient at the end of the plaintiff's case may be made sufficient by evidence subsequently received.

12. An admission by one defendant is adopted by another defendant who has manifested adoption or belief in its truth by words, action, or silence when denial is deemed called for.

13. Before an admission by one party can be used as evidence against another under the doctrine of adoptive admissions, the trial court should require evidence of circumstances indicating that the second party heard and understood the statement and had the ability and opportunity to reply.

Freed, Dynes, Malloy & Reichert, Dickinson, for plaintiff and appellee; argued by George T. Dynes, Dickinson.

Judith A. Atkinson, Thomas K. Schoppert and John O. Holm, North Dakota Legal Services, Inc., New Town, for defendants and appellants; argued by John O. Holm.

VOGEL, Judge.

The defendants, Alfred Morsette, Jr., and Geneva Morsette, appeal from the judgment against them and from the order denying their motion for judgment notwithstanding the verdict or for a new trial. They ask for review of the denial of their motion for directed verdict at the end of the plaintiff Starr's case and at the end of the entire case, pursuant to Section 28--27--29.1, N.D.C.C.

We affirm.

The action arose out of an automobile accident. On August 26, 1972, Geneva Seaboy, who later became, and is hereafter named as, Mrs. Morsette, was driving a pickup truck with the plaintiff Starr and her husband-to-be as passengers. An accident occurred in which no other vehicle was involved. The pickup was overturned. The cause of the accident is disputed.

The chief thrust of the appellants' argument is that the court erred in denying their motion for a directed verdict at the end of the plaintiff's case. To a lesser extent, they allege error in the denial of the motion for a directed verdict at the end of the entire case. They claim to have been entitled to a directed verdict for three reasons: (1) that the court erred in admitting out-of-court statements of Geneva Morsette, as testified to by the sheriff and Linda Perhus, who came upon the scene shortly after the accident; (2) that there was no evidence of negligent conduct by Geneva Morsette; and (3) that any out-of-court statements made by Geneva Morsette were not admissible against Alfred Morsette, Jr., and that the motion therefore should have been granted as to him.

We are faced at the outset by the fact that only a partial transcript and an even more limited appendix were brought up to this court.

Rule 10, North Dakota Rules of Appellate Procedure, provides, in part, at 10(b):

'If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.'

As will appear, we have serious doubts that the record before us includes all the evidence relevant to the finding that Geneva Morsette was negligent. The appellants have the burden of showing error in the lower court. Unless the entire record on a question raised by the appellants is presented to us, the appellants have not borne the burden of proof of showing error.

I ADMISSIBILITY OF STATEMENTS BY DRIVER

Linda Perhus was the first person to come upon the scene of the accident. She believed she arrived a minute or two after the accident occurred. She testified that Starr was inside the overturned vehicle when she arrived, and Geneva and Alfred Morsette were standing beside it. She went 'right up to' the two of them and Mrs. Morsette told her that she had been driving down the road and Morsette grabbed the wheel, causing the pickup to go into the ditch and overturn. She pointed to Alfred Morsette as she said this. The witness did not recall whether Mr. Morsette said anything in response. Linda Perhus left before the sheriff and the ambulance arrived.

Starr gave no testimony as to the facts of the accident, since he suffered from retrograde amnesia.

Sheriff Dardis testified that he asked Alfred Morsette and Geneva Seaboy who the driver was and she spoke up and said, 'He jerked the wheel away from me,' as she pointed to Alfred Morsette. He testified that Mr. Morsette made no comment that he could remember, and that Geneva and Alfred were 'right together' when he arrived, 'a matter of feet from each other' and 'in the same vicinity' and 'in the presence of each other' when the statement was made.

The Morsettes argue that the statements of Geneva, as testified to by Mrs. Perhus and Sheriff Dardis, were hearsay and inadmissible as substantive evidence.

They cite the following cases in support of their position that the declarations of Geneva at the scene were inadmissible as to her: Leake v. Hagert, 175 N.W.2d 675 (N.D.1970); Grand Forks B. & D. Co. v. Implement Dealers Mutual Fire Insurance Co., 75 N.D. 618, 31 N.W.2d 495 (1948). It is to be noted that the declarations held inadmissible in both of those cases were declarations of nonparties (and thus irrelevant to the issue in this case, which involves admissions by parties).

The Morsettes urge that the hearsay rule set forth in the Leake case should be applied to exclude such statements. They argue that the hearsay rule prohibits use of a person's assertion as equivalent to testimony of the fact asserted unless the declarant is brought into court to testify on the witness stand, where he may be probed and cross-examined as to grounds of his assertion and his qualifications to make it.

Such reliance on Leake is inappropriate in the case of admissions by parties-opponent. The declarant Mrs. Morsette could be put on the stand, but who would cross-examine her? Her own counsel? The opposing counsel was seeking to have the statements admitted. As Morgan put it, 'A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath.' Morgan, Basic Problems of Evidence 266 (1962), quoted in McCormick on Evidence, 2d Ed., § 262, p. 629.

The appellants had the full opportunity, had they desired, to put Mrs. Morsette on the stand to explain or refute her statements. This counsel chose not to do. Counsel cannot now complain that the statements lack trustworthiness or credibility due to lack of cross-examination.

When we consider statements made by parties to the lawsuit, in the nature of admissions, we find that they are generally held admissible, either on the theory that although they are hearsay they are inconsistent with a party's present position and the right to cross-examination is not necessary (4 Wigmore, Evidence § 1048 (Chadbourn rev. 1972); Milton v. United States, 71 App.D.C. 394, 110 F.2d 556, 560 (1940)), or that they are simply nonhearsay (McCormick on Evidence, 2d Ed., § 262, p. 629; United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 993--994, 39 L.Ed.2d 242, 250 (1974)).

Under the new Federal Rules of Evidence for United States Courts and Magistrates, effective July 1, 1975, for the Federal courts and under consideration by a joint committee of this court and the State Bar Association of North Dakota for adoption in this State, a declaration of the type in question would be admissible either as a non-hearsay statement of a party under Rule 801(d)(2)(A), or as an exception to the hearsay rule as 'a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter,' under Rule 803(1), or as 'a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition' under Rule 803(2). ¹ Under Rule 803, no distinction is made between parties and nonparties.

We hold that the declarations...