Fisher v. Duckworth

738 S.W.2d 810, 1987 Ky. LEXIS 238
CourtKentucky Supreme Court
DecidedSeptember 3, 1987
Docket86-SC-1032-DG
StatusPublished
Cited by23 cases

This text of 738 S.W.2d 810 (Fisher v. Duckworth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Duckworth, 738 S.W.2d 810, 1987 Ky. LEXIS 238 (Ky. 1987).

Opinions

LEIBSON, Justice.

On February 2, 1983, in Louisville, Kentucky, appellants, James Fisher and Gregory Cotton, were occupants of an automobile involved in an intersection collision with a station wagon operated by Anthony Duck-worth. Duckworth was an employee of Grisanti, Inc., and had been entrusted with the vehicle to go to the airport and pick up fresh fish for Grisanti’s business, and then to deliver it to Grisanti’s Sixth Avenue Restaurant, after which he was to return the vehicle to the parking lot of a different Grisanti restaurant at another location.

Fisher and Cotton sued Duckworth and Grisanti, Inc., for personal injuries, alleging that Duckworth was on Grisanti’s business. Grisanti filed an Answer which was essentially a general denial of the allegations of the Complaint, which included, sub silentio, denying the allegation that Duck-worth was an employee on Grisanti’s business at the time of the collision. Grisanti filed no cross-claim against Duckworth.

Duckworth was never served and no pleadings have been made on his behalf. If he is before the Court, it is by reason of his voluntary appearance at a deposition that took place about a year after suit was filed and shortly before trial. Originally this deposition was arranged for Danville, Illinois, Duckworth’s address after Grisanti fired him in March of 1983. But, ultimately, Duckworth came back to Louisville voluntarily to give the deposition at the request of the appellants’ counsel.

On direct examination at his deposition, Duckworth testified to facts indicating that he was using Grisanti’s vehicle within the scope of permitted use in his employment at the time of the collision; that he had made a detour from the usual route to attend a personal matter, but that this was an authorized deviation, with the knowledge and permission of his supervisor. This deposition was recorded on videotape, and later introduced by the appellants as evidence at trial.

On cross-examination at the deposition, Grisanti’s attorney asked Duckworth if he remembered “giving a statement to a fellow by the name of Mr. Tom Rose on or about February 17, 1983.” This would have been almost twenty-one months before the deposition. Duckworth acknowledged making such a statement over the telephone, and further acknowledged that this was “an oral statement of the events surrounding this accident.” Grisanti’s attorney asked no further questions concerning the contents of the statement, nor did he confront Duckworth with any portions of it that were contradictory to his testimony on deposition, and, on redirect by appellants’ attorney, Duckworth’s answers indicated no memory of saying anything to Rose significantly different from his deposition testimony.

[812]*812As it turned out, Rose was an insurance adjuster in the employ of Grisanti’s liability insurer. At some point during the course of the telephone conversation between Rose and Duckworth, with Duckworth’s permission, Rose turned on an audio-tape machine and tape recorded a question and answer interview. At trial this recorded statement was introduced into evidence upon Rose’s identification, over objection. At one important point it contradicted Duckworth’s deposition testimony that he had permission from his supervisor to deviate from the scope of his employment to use Grisanti’s vehicle on a personal errand as he was doing at the time that the accident occurred. On the tape Duckworth answered “No” to the question, “Did the people at Grisanti’s know you were going to move a mattress?”

The critical issue on this appeal is whether this prior inconsistent statement should have been admitted. Appellants contend that this statement was not admissible because Grisanti’s attorney had not complied with Civil Rule 43.08, which “requires a party to lay a foundation before attempting to impeach a witness by showing that he has made different statements at another time.” Bertelsman and Philipps, Kentucky Practice, Civil Rule 43.08, p. 115 (4th ed. 1984). On the other hand, Grisanti contends that the inquiry made of Duckworth at the time of the deposition was sufficient foundation under CR 43.08, or, in the alternative, that because Duckworth was named by the appellants as a defendant in the lawsuit, his audio-taped statement qualified as an admission of a party, making it unnecessary to have previously confronted Duckworth with the substance of the statement or question him directly about prior inconsistencies.

At the conclusion of trial the court directed a verdict against Duckworth.1 Pursuant to this directed verdict the jury awarded Fisher a verdict against Duckworth in the total sum of $28,387.20, and Cotton a verdict against Duckworth in the total sum of $16,822.17. Thereafter, the trial court entered judgment on the verdicts against Duckworth.

In answer to a special interrogatory, the jury found that Duckworth was on his personal business and beyond the scope of his employment for Grisanti at the time of the collision. Accordingly, the appellee, Gri-santi, was exonerated, and the final judgment dismissed the claim against Grisanti.

The Court of Appeals affirmed the judgment. We have accepted discretionary review, and reverse.

The Court of Appeals affirmed based on a misunderstanding of the decision of our Court in Schaible v. Uhl, Ky., 343 S.W.2d 578 (1961). In Schaible our Court upheld the admissibility of the plaintiff’s “written and signed pre-trial statement ... which tended to exonerate Uhl [the defendant] of blame and was contradictory of his [plaintiff’s] testimony on the trial.” Id. at 579. In response to the complaint that there had been no “preliminary inquiry” as required by CR 43.08, we stated:

“The simple answer is that the statement was not an impeaching document, but evidence of an admission against interest by a party.” (Emphasis original). Id.

The decision in Schaible was a proper application of a rule of evidence covering “admissions of a party-opponent.” (Emphasis added). See McCormick, The Law of Evidence, Ch. 26 (3rd ed. 1984); 4 Wigmore on Evidence §§ 1048-1087 (Chadbourne rev. 1972). To be properly understood it is important to note that the term “admission against interest,” as used in Schaible, is a misnomer. The correct terminology, as noted above, is “admissions by a party-opponent,” which is sometimes shortened to “admissions,” but always understood as limited only to the issues between the party making the admissions and an opposing party in the lawsuit. The right of a party to introduce into evidence the admissions made by an adverse party, “are the product of the adversary system, sharing, though on a lower [813]*813and nonconclusive level, the characteristics of admissions in pleadings or stipulations.” McCormick, supra at § 262, p. 775. This rule covers admissions by silence or conduct, and judicial admissions, as well as evidential admissions. McCormick, supra. The reference in Schaible to the rule regarding use of “admissions” as an “admission against interest” is not only technically erroneous, but misleading, because it confuses the elements of this rule with elements of a distinctly different rule of evidence, the use of “declarations against interest,” which, when admissible, applies to statements by any witness, whether or not a party, but has other limitations. See McCormick, supra

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Fisher v. Duckworth
738 S.W.2d 810 (Kentucky Supreme Court, 1987)

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Bluebook (online)
738 S.W.2d 810, 1987 Ky. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-duckworth-ky-1987.