Wilt v. Moody

• Court: Missouri Supreme Court
• Writing for the Court: ELLISON; TIPTON
• Citation: Wilt v. Moody, 254 S.W.2d 15 (Mo. 1953)
• Decision Date: 09 January 1953
• Docket Number: No. 2,No. 42876,42876,2
• Parties: WILT v. MOODY

Page 15

254 S.W.2d 15

WILT v. MOODY.

No. 42876.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1953.

Kelso Journey, Clinton, William J. Cason, Clinton, for plaintiff-appellant.

Poague, Poague & Brock, Haysler A. Poague and Barkley M. Brock, Clinton, Roy Jones, Warrensburg, for respondent.

ELLISON, Judge.

The plaintiff-appellant motorist Wilt sued the defendant-respondent Moody, and another defendant McMillan, for $15,000 damages under Sections 537.080, 537.090 RSMo 1949, V.A.M.S., for the wrongful death of his wife, who was riding with him, in a double motor car collision on State Highway 13. The first was between his automobile traveling south uphill and the closely following truck of the defendant McMillan, which struck from the rear. That collision projected his automobile to the left side of the highway and into the path of an oncoming northbound truck driven by the defendant-respondent Moody, resulting in a head-on collision. The plaintiff made a compromise settlement with defendant McMillan before the trial. The jury found for the respondent Moody.

The appellant Wilt's assignments of error on appeal complain: of the admission and exclusion of evidence; directions of the trial court instructing the jury to disregard certain testimony of the appellant concerning medical expenses he incurred and paid in the treatment of his wife; and in the giving of instructions.

The casualty occurred between 5:30 and 6 o'clock in the evening of December 21, 1949. On that day, according to the almanac, the sun set at 4:41 p. m. It was cloudy and a slight mist was falling and freezing on appellant Wilt's automobile. Wilt said he was aware of the approach of the southbound McMillan truck behind him from its headlights. At about the same time he saw the glare from the head lamps of the northbound Moody two-ton truck as it approached from the south. It was loaded with 2700 pounds of coal. When appellant's automobile had got about three-fourths of the way up the hill the lights of the McMillan truck behind him indicated it was going to pass his automobile on the left, but then it veered back toward his automobile and struck the left rear bumper and fender thereof. That caused appellant's automobile to head southeast across the highway where Moody's oncoming truck collided with it. Appellant stated he was not able to recall in detail anything that happened after his automobile was struck by the McMillan truck until he was being extricated from the wreckage thereof.

However he said the Moody truck was at least 200 yards southward when the McMillan truck struck his car from the rear, and that Moody then had time and space to avert a second collision. He based those estimates and opinions on measurements he made from adjacent landmarks. The collision with the Moody truck was violent, as disclosed by the damage to appellant's car. His wife was found sitting in the trunk compartment in the back corner of the car, and it was caved in over her. She was unconscious, but lived until after she had been transported to a hospital.

Appellant Wilt contends the Moody truck 'struck the killing blow' because it hit his automobile by the door on the wife's side of the car, and because the blow from the McMillan truck was delivered from the rear and cushioned, since its force was exerted in the same direction his own car was moving. He further asserts the force thus produced would be insufficient to cause her injuries--crushing of the chest, and a broken right arm and leg. And he maintains Moody could have averted the collision by stopping or turning his truck away from the path of his (appellant's) automobile. However, we shall not go into that contention because appellant's brief in effect concedes the question was one for the jury, since his assignments only charge procedural errors.

Plaintiff-appellant Wilt's first point complains that the trial court erred in allowing defendant-respondent Moody's counsel to read to the jury on cross-examination a written statement which Moody had given to deputy sheriff Stone the day after the casualty in the absence of appellant. The deputy sheriff had been at the scene of the collision the previous evening shortly after it occurred, and at that time Moody had orally narrated to him (Stone) his own version of how it happened. The appellant and his wife were not present, they having been taken to a hospital.

On direct examination by appellant Wilt's counsel the deputy sheriff testified to respondent Moody's oral statement the evening of the casualty. Therein Moody told the deputy sheriff there was ice and sleet on his truck windshield, but he had his window down and he could look out the side. He said he was on his own side of the road, and that appellant Wilt's car appeared right in front of him, whereupon he cut his wheels to the right, Wilt's car coming on crossways. But Moody's truck was going north and Wilt's car south, both with lights on. And the deputy sheriff found no tire marks from Moody's truck until it turned off on the shoulder of the road.

In the cross-examination of the deputy sheriff respondent Moody's counsel developed that he [the deputy sheriff] had taken a separate written statement from Moody the next day in the absence of the appellant, and appellant's counsel objected to the introduction thereof as self-serving, but agreed that the deputy sheriff as a witness might consult the written statement to refresh his memory. The trial court's ruling was broader. The court held Moody's counsel could ask the deputy sheriff if Moody 'said these things' contained in the written statement, to which appellant Wilt's counsel objected and excepted. The only part of the written statement that was read to the jury in the cross-examination, [that is to say, the only part shown in the record with quotation marks] was as follows:

'I was coming down the highway when I seen two cars coming. One of these cars blinked its lights but I don't know which one. When this car was a little ways in front of me the pickup truck (McMillan's) hit it and knocked it in front of my truck. I didn't have time to stop or anything. I turned my wheels to the right to get off the road and we hit almost headon. His car hit my truck twice.'

Appellant Wilt's counsel objected to the deputy sheriff's reading this 'after the event' written statement of respondent Moody to the jury, on the ground that it was self-serving and made in the absence of appellant. On this point appellant cites the authorities listed below. ¹ See also Fishback v. Prock, 311 Mo. 494, 507(4), 279 S.W. 38, 42(5) and Munton v. A. Driemeier Storage & Moving Co., 223 Mo.App. 1124, 1131(2, 3), 22 S.W.2d 61, 63(2, 3).

Respondent Moody answers that 'where one party shows a portion of a conversation the other party can show the remaining part of the conversation though it contain self-serving declarations,' citing Dunn v. Alton Ry. Co., Mo.App., 88 S.W.2d 224, 228(1-3). In that case the hearsay rule was invoked, not the self-serving doctrine. And for that reason the appellate court refused to consider the applicability of the self-serving doctrine to the case. To that appellant's brief replies that the selfserving rule is a part of the hearsay rule, referring to 31 C.J.S., Evidence, Sec. 216 p. 952, supra which cites the two cases listed below. ² We think that is true where the hearsay matter is a self-serving statement made by the other party in the absence of his adversary, and for that reason hold the deputy sheriff's reading of respondent Moody's separate written statement to the jury was prejudicially erroneous.

The second point in plaintiff-appellant's brief is that the trial court erred in refusing to allow him--in presenting his case in chief at the beginning of the trial--to read to the jury certain portions of the testimony of defendant-respondent Moody in a deposition in the cause, on the theory that they contained admissions of his liability. Moody was present in court and it was announced by his counsel that he would testify when the defense introduced its evidence. On that assurance the court overruled the request of appellant's counsel. Error is now assigned on that ruling, citing the first three authorities listed below, ³ to which we have added two others. We rule this assignment in favor of appellant under the authorities cited.

Of these, the paragraph in 31 C.J.S., Evidence, Sec. 308, states that 'A deposition of one of several defendants is admissible, as part of plaintiff's case in chief, as an admission against such defendant over the objection of his codefendant.' [Emphasis ours.] The Winegar case declares the general rule is that a deposition cannot be read in evidence when the deponent is present in court, but that there are two well esablished exceptions: (1) to impeach the testimony of such witnesses, and (2) as an admission against interest.

In the Bogie case the defendant took and filed the deposition of the plaintiff, and the plaintiff at the trial offered to read it as a part of his own case, but the defendant objected and the court sustained the objection. When the defendant put on his evidence he offered to read the deposition as an admission of the plaintiff but the plaintiff objected on the ground that he was present in court. The court overruled the objection and permitted the deposition to be read as an admission of the plaintiff. This court sustained that ruling, holding: 'the declarations of a party to a suit, made in a deposition taken by his adversary, may be read in evidence against him on the trial in the same suit in which such deposition was taken, whether he be present or absent. He is none the less a party because his adversary has called him as a witness'. The Dawes and Pulitzer cases cited are to the same effect.

Respondent Moody contends the trial court's refusal to permit appellant's counsel to read [Moody's] deposition to the jury before he had taken the stand was not prejudicially...