State Ex Rel. Pulliam v. Swink

514 S.W.2d 559, 1974 Mo. LEXIS 729

• Court: Supreme Court of Missouri
• Decided: September 9, 1974
• Docket: 58490
• Status: Published

Opinions

PER CURIAM:

Upon application of respondent, this original proceeding in prohibition was transferred to this court from the Court of Appeals, St. Louis District, after the filing of an opinion therein. The cause has been re-argued and submitted in this court, and we approve and adopt as our own the opinion heretofore written by Smith, J., which, without the use of quotation marks, is as follows:

Relator seeks to have us make permanent our preliminary writ prohibiting respondent from striking relator’s answer in a personal injury suit, because of relator’s refusal to answer questions at a deposition on the grounds his answers might incriminate him.

Plaintiff in the underlying suit, brought her action for wrongful death of her husband as a result of an automobile accident. Relator filed an answer and sought no affirmative relief. Depositions were scheduled and relator attended his deposition. He gave his name and thereafter in response to each question stated, “I refuse to answer that question on the ground it might incriminate me.” Thereafter, on the scheduled day of trial plaintiff moved to strike relator’s answer pursuant to Section 491.180, RSMo 1969, V.A.M.S. Respondent indicated his intention to sustain the motion and we issued a preliminary writ of prohibition.

The parties have briefed certain procedural matters, but we believe the case should be decided upon the more basic question of whether the court has the power to strike a defendant’s answer upon his refusal to testify on grounds of self-incrimination. We hold it does not under the facts here.

It should be pointed out what this case does not involve. Relator’s conduct was in no respect contumacious. Relator immediately and at the first opportunity invoked his constitutional privilege; it was not an afterthought following a previously unexplained or unwarranted refusal to testify. Relator did not refuse to attend the deposition. Relator did not testify to matters favorable to himself and then seek the benefit of the privilege upon cross-examination or when the questioning reached a point where his answers would be unfavorable to him, thereby waiving the privilege. The privilege was not asserted in a posture indicating bad faith; respondent admits relator’s answers could in fact have incriminated him.

Although both Article I, Section 19 of the Missouri Constitution, V.A.M.S., and Amendment V of the United States Constitution are framed in terms of testimony in “criminal” cases, the privilege is available to a witness before any tribunal and in any proceeding including civil cases. State ex rel. North v. Kirtley, 327 S.W.2d 166, 167[1] (Mo. banc 1959). A statute cannot, of course, override or take away a constitutionally guaranteed right.

In Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (Mo. banc 1955) the Supreme Court upheld the action of the trial court in striking the pleadings of the plaintiff in a divorce action when she refused to answer interrogatories because of self-incrimination. Respondent relies heavily upon that decision to support his intended action. But the decision in that case was clearly based upon the fact that the person invoking the privilege was seeking affirmative relief from the court. At l.c. 485 the court stated the question:

“But, may she, by virtue of that privilege, obtain affirmative relief of divorce or temporary allowances, which otherwise would be denied to her on refusal to answer pertinent written or oral interrogatories ?” (Emphasis supplied.)

And in distinguishing certain cases cited by the plaintiff in that case, the court stated :

“In the second place, none of the witnesses claiming the privilege had invoked the jurisdiction of the court in quest of affirmative relief; and the party defendant had done so only by way of counterclaim.” (l.c. 485.) (Emphasis supplied.)

In Geldback Transport, Inc. v. Delay, 443 S.W.2d 120 (Mo.1969) the Supreme Court upheld the dismissal of a crossclaim where the cross-claimant refused to answer interrogatories on self-incrimination grounds. There again the court referred to the affirmative relief sought by the cross-claimant and analogized the situation to waiver of the physician-patient privilege, where the patient brings suit making the matter of his physical condition an issue. The court concluded its opinion by stating:

“Certainly appellant put his right to possession of the tractor in issue by his cross-claim against Grassham and this was a waiver of his right not to disclose the basis of his claim.” (l.c. 122.) (Emphasis supplied.)

We recognize that Gragson v. Gragson, 290 S.W.2d 420 (Mo.App.1956) does not discuss nor apparently recognize the affirmative relief qualification of Franklin. But the facts in that case create some doubt that defendant there in fact invoked the privilege against self-incrimination in good faith or at the first opportunity.

The affirmative relief test and waiver theory of Franklin and Geldback are sound. It is not unfair to preclude one who invokes the assistance of the courts from recovery when he refuses to produce evidence peculiarly within his knowledge pertinent to his right to recover. It is something else again to require one who is in court involuntarily to elect between his constitutional privilege and the automatic entry of a judgment against him. Plaintiff has the burden of establishing her right of recovery and to shift or eliminate that burden because defendant asserts his constitutional privilege is to penalize defendant for invoking his rights. A court lacks the power and jurisdiction to require defendant to make such an election.

Relator has sought no affirmativ: relief; he is in court involuntarily. H( raised his constitutional privilege immediately; his assertion of the privilege was in good faith; he has not been contumacious. The court will exceed its jurisdiction if it enters its order striking defendant’s answer on the basis of defendant’s assertion of his constitutional privilege.

We are not unmindful that in some situations the ruling we here make will present hardships to other litigants. It is regrettable, but necessary, if constitutional rights are to have meaning. What we have said here, however, does not mean that litigants may pick and choose that which they will allow to be discovered. Once the privilege has been invoked to preclude discovery, trial courts have the power not to allow the defendant to change his position and testify at trial to his benefit. Invocation of the privilege at the discovery stage may well serve to preclude a defendant from controverting through his own testimony or records the evidence of the plaintiff at trial.

Writ of prohibition is made permanent.

DONNELLY, C. J., and SEILER, MORGAN, HOLMAN, BARDGETT and HENLEY, JJ., concur. FINCH, J., dissents in separate dissenting opinion filed.