Tillman v. Wedge Mobile Service Station
| Decision Date | 21 February 1978 |
| Docket Number | No. 38894,38894 |
| Citation | 565 S.W.2d 653 |
| Parties | Wayne TILLMAN, Plaintiff-Appellant, v. WEDGE MOBILE SERVICE STATION, Employer-Defendant-Respondent, and Royal-Globe Insurance Company, Insurer-Defendant-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Ray A. Gerritzen, St. Louis, for plaintiff-appellant.
Ray Robert L. Nussbaumer, Kortenhof & Ely, St. Louis, for employer-insurer-defendants-respondents.
Gene R. Spengel, Jr., St. Louis, Carroll, McBride, Jefferson City, for State of Missouri second injury fund.
This is a proceeding under the Workmen's Compensation statute, §§ 287.010 et seq. RSMo.1969. The Circuit Court of the City of St. Louis affirmed the award of the Labor and Industrial Relations Commission, denying compensation to the employee.
The employee's evidence showed that he sustained an injury in the course of his employment. The employee was attempting to change a truck tire when one of the wheel bolts broke, flew off, and struck him in the head above the eye. The force of the impact caused employee to stumble abruptly backwards and to jerk his neck. Employee sustained a laceration and was driven to the hospital, where the wound was sutured. The sole issue was whether the employee suffered a permanent partial disability.
In this regard, the opinions of several physicians were elicited. Dr. James McFadden, Jr., a surgeon, testified on his behalf. A series of examinations revealed no objective injury. However, an x-ray diagnosis supplied by a radiologist led Dr. McFadden to conclude the employee had a 12% permanent partial disability. 1
In addition to evidence provided by Dr. McFadden, the report of Dr. Ralph Graff was admitted into evidence by consent of the parties. Based on his physical and neurologic examination, Dr. Graff concluded the employee had no disability.
During the proceedings before the referee, the employer sought to introduce the deposition of Dr. George Hawkins, in which the latter stated his conclusion that employee suffered no disability resulting from the accident. Attorney for the employee objected on the grounds a showing that Dr. Hawkins was not available to testify had not been made. Following some discussion, the referee agreed and declared a recess to allow the proponent of the deposition an opportunity to establish a proper foundation for its admission. The following day, Pete Venezia, a shorthand reporter, testified over employee's objections that he had attempted to serve, earlier that morning, a notary public subpoena on Dr. Hawkins at the latter's office. Venezia was met by Dr. Hawkins' secretary and was told the doctor was in surgery. On the back of the subpoena Venezia made the following notation: Over employee's hearsay objection, the subpoena was admitted into evidence.
Thereafter, during a recess, the referee placed a telephone call to Dr. Hawkins office and was told by his secretary the doctor was engaged in practice on that particular day and on the previous day. The referee advised the parties of the phone conversation, to which attorney for the employee objected. The deposition of Dr. Hawkins again was offered in evidence, and satisfied that a proper foundation had been laid, the referee overruled employee's objection to its admission. The referee found that the employee suffered no permanent partial disability and awarded no compensation to the employee. The Commission affirmed the award and adopted the referee's findings of fact, rulings and conclusions of law.
Employee contends the deposition of Dr. Hawkins was inadmissible absent competent evidence that the doctor was not available to testify at the time the deposition was offered in evidence and that as a result thereof, the case should be reversed and remanded. He cites Rule 57.07(a)(3)(C), which provides:
"The deposition of any witness who is not present in court may be used by any party for any purpose if the court finds: * * * that the witness is a judge of a court of record, a practicing attorney or physician and engaged in the discharge of his official or professional duty at the time of trial; * * * "
Subsection (b) of Rule 57.07 states:
"The facts which would authorize the use of the deposition may be established by the testimony of the deposing witness or by the certificate of the officer taking the deposition or by any competent evidence."
In admitting the deposition, the referee ruled that the foundation requirement set out in Rule 57.07(b) had been satisfied. In his findings of fact and rulings of law, however, the referee specifically stated that his decision to deny compensation would be the same even if the deposition were found to be inadmissible, inasmuch as the report of Dr. Graff itself was sufficient basis for such a determination.
The Commission affirmed, but concluded the Rules of Civil Procedure do not apply in Workmen's Compensation proceedings. The circuit court took the position that, although in general the rules do not apply in Workmen's Compensation cases, Rule 57.07 in particular does apply. We agree with the finding of the circuit court. See Groce v. Pyle, 315 S.W.2d 482, 492 (Mo.App.1958); § 287.560, RSMo.1969.
Section 287.560 provides for the taking and use of depositions in Workmen's Compensation proceedings "in like manner as in civil cases in the circuit court," and we find nothing to suggest the legislature intended something other than the plain meaning of this language. Rule 57.07 controls the use of depositions in court proceedings, and, by virtue of § 287.560, controls in like manner their use in Workmen's Compensation proceedings.
Accordingly, the condition precedent to the admission of Dr. Hawkins' deposition was the establishment by competent evidence 2 of a proper foundation for its admission. The burden to show its admissibility is on the party offering the deposition, Null v. Gray, 534 S.W.2d 823, 826 (Mo.App.1976), and admissibility must be determined by reference to the ground on which it is offered and to the factual basis proved by the party offering the deposition at the time the offer is made. 3 Jenni v. E. R. B. Land, Inc., 541 S.W.2d 743, 752 (Mo.App.1976).
Employer sought to have the doctor's deposition admitted on the ground that he was engaged in professional duties and therefore was not available to testify. The circuit court concluded there was insufficient competent evidence to lay such a foundation. We agree. The only evidence of the doctor's unavailability was the statement of his secretary, testified to by Venezia and acknowledged by the referee following his telephone inquiry, to the effect he was in surgery. Such evidence was predicated on hearsay and was not competent. 4
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...Foods Corp., 579 S.W.2d 838 (Mo.App.1979); Skinner v. Dawson Metal Products, 575 S.W.2d 935 (Mo.App.1978); Tillman v. Wedge Mobile Service Station, 565 S.W.2d 653 (Mo.App. 1978); Gold v. Sharp, Kidde, Webb, 564 S.W.2d 612 (Mo.App.1978); Vogel v. Hall Implement Co., 551 S.W.2d 922 (Mo.App. 1......
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...any conflicts in the evidence, and reaches its own conclusions independently of the referee's findings. Tillman v. Wedge Mobile Serv. Station, 565 S.W.2d 653, 658 (Mo.App.E.D.1978). After the Commission has determined an award in a workers' compensation case, the appellate court reviews the......
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