Wilborn v. Williams
| Decision Date | 08 August 1977 |
| Docket Number | No. KCD,KCD |
| Citation | 555 S.W.2d 44 |
| Parties | Robert WILBORN, Respondent, v. Cecil WILLIAMS, a sole trader d/b/a Ace Log & Lumber Company, Appellant. 27901. |
| Court | Missouri Court of Appeals |
Larry E. Tate, Boonville, for appellant.
Scott O. Wright, Brown, Wright, Willbrand & Simon, Columbia, for respondent.
Before SOMERVILLE, P. J. and WASSERSTROM and TURNAGE, JJ.
Plaintiff (hereinafter referred to as employee) prevailed in a jury tried two count action against defendant (hereinafter referred to as employer) for unpaid commissions (Count I) and unpaid wages (Count II) involving purchases of timber.
Employer seeks reversal of the judgments and remand for a new trial because (1) "Plaintiff's Exhibit # 15 Was Not the Best Evidence and the Court Erred in Admitting Same", and (2) "The Closing Argument of Counsel for Plaintiff Was so Prejudicial As to Deprive Defendant of a Fair and Impartial Trial."
The first point, which relates solely to employee's claim for unpaid wages, arises in the following context. The claim for unpaid wages centered around certain weekends during which employee claimed he worked for employer but for which he was never compensated. Employee orally testified that during the overall period of his employment he worked every weekend, with certain exceptions delineated by dates, for which he was never compensated as initially agreed to between himself and his employer. After orally testifying, without objection, as to the weekends he did and did not work during the overall period of his employment, employee identified what has been designated as Plaintiff's Exhibit No. 15. The controversial exhibit, with one glaring exception, was a written recapitulation of employee's oral testimony regarding the weekends during which he did and did not work throughout the course of his employment. The glaring exception being that the exhibit, as opposed to employee's oral testimony, listed an additional weekend during which employee had not worked. The same was admitted into evidence over employer's objection that it was not the "best evidence". Employer's objection to Plaintiff's Exhibit No. 15 on the ground that it was not the "best evidence" was posited on the fact that preliminary cross-examination of employee by employer's counsel revealed that it was prepared from dates marked on a calendar by employee's wife. During trial the calendar's present location was unaccounted for.
Employer does not suggest or intimate that Plaintiff's Exhibit No. 15 was offered for the purpose of proving the contents of the calendar. It is patently obvious that it was offered to identify those weekends during which employee worked for employer within the course of the employer-employee relationship and to substantiate and support employee's oral testimony in that respect. Ergo, employer's objection to the exhibit as not constituting the "best evidence" is not well taken. As pointed out in Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306, 308 (Mo.App.1965), "where the contents of the writing is not directly in issue, although the evidence contained in the writing may bear upon a...
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