Interest. - NO.: Declarant Is Unavailable As A Witness."

11. CARPENTER v.
DAVIS
Nov. 25, 1968 | J. DONNELLY | PALN
Hearsay Rule Exceptions: Declaration Against Interest
DOCTRINE: A Declaration Against Interest is one made by persons not a party or in privity with a party
to the suit, are secondary evidence and constitute an exception to the hearsay rule, admissible only when
the declarant is unavailable as a witness.
CASE SUMMARY: Opal Carpenter died in a car accident in Osage County, Missouri and her husband
filed a case for damages against the truck driver who caused the accident. In the lower court the Jury
ruled in favor of the truck driver. The plaintiff now appeals to the Supreme court of Missouri that the lower
court erred in entering into evidence the testimony of the Truck Driver as to the statements made by the
deceased before her death that was submitted as a Declaration Against Interest which is the exception to
the Hearsay rule. The SC here first distinguished between and Admission Against Interest and
Declaration Against Interest where in a Declaration can only be admissible if the declarant is unavailable
as witness unlike Admissions. The court here held that a negligence action is particularly susceptible to
error and is prone to the risk of the one making the testimony changing just one word from the alleged
words of the declarant. SC ruled that the previous jurisprudence that allowed such declarations should not
be followed anymore and the Declaration should not have been accepted into evidence, because unlike
Declarations, in an admission, the Declarant may be available for questioning.
FACTS:
 The case is about a vehicular collision in Osage County, Missouri on March 17, 1965. An action for
damages for the death of Opal Carpenter, wife of plaintiff.
 The car was driven by Loren Babbit, the brother of Opal and collided on the intersection of Highway
50 and 63. (There was a stop sign and red light governing H63 Northbound).
 Thomas Grothoff was a Truck Driver for Central Dairy traveling on H50 and hit the left side of the car.
 The Jury held in favor for Grothoff hence appeal.
ISSUE: W/N – In a negligence action, an opinion as to fault is admissible as a declaration against

interest. – NO.
RULING:
 During the testimony of Thomas Grothoff, they wanted to enter into evidence his conversation with
the decedent Opal.
o “`I'm sorry, lady, but you pulled right out in front of me.”
o She said: `Yes. Yes, I know. It wasn't your fault.'
 The Plaintiff avers that the Trial Court erred in admitting said statements into evidence.
 The court distinguished between Admissions against Interest and Declarations against Interest:
o AAI: Admissions against interest are those made by a party to the litigation or by one in privity
with or identified in legal interest with such party, and admissible whether or not the declarant is
available as a witness.
o DAI: those made by persons not a party or in privity with a party to the suit, are secondary
evidence and constitute an exception to the hearsay rule, admissible only when the
declarant is unavailable as a witness."
 The court came to the following conclusions:

o (1) The statement in question is: "`Yes, I know, it's not your fault." The statement of fact, "`Yes, I
know,'" will be admissible upon retrial, if offered alone, as a declaration against interest.
o (2) This opinion as to fault would have been admissible as an admission against interest had
Opal Carpenter survived and this were her action for damages for personal injuries.
o (3) This opinion as to fault is not admissible in Missouri as an admission against interest because
it was not made by a party to this action or by someone identified in legal interest with a party to
this action.
 McComb v. Vaughn: deceased in his lifetime could not have had any identity as one in
privity, in any legal sense, with plaintiff Lagatha in her new and distinct cause of action
which arose and accrued to her only upon his death and only by virtue of statute
 The Grodsky case, and other cases involving admissions against interest, such as Costello
v. M. C. Slater, Inc. cited by defendants, do not assist us in determining the question.
 They represent recognition, in an adversary proceeding, that a party should be held
responsible for statements of fact or opinion, previously made, which conflict with the
position taken by him in the judicial proceeding. Such statements may affect credibility and
proof, and may aid the jury in arriving at the truth. In any event, the declarant is available in
court to advance or defend his position.
 An opinion as to fault in a negligence action is particularly susceptible to error. A witness at

trial may, intentionally or otherwise, change a word and convey a meaning completely
different from that intended by the declarant. An opinion as to fault may be ambiguous, and
yet persuasive, where, as here, no opportunity exists for explanation or denial. In these
circumstances, are the available safeguards sufficient to offset the risks of inaccuracy. We
think not. We hold that an opinion as to fault is not admissible as a declaration against
interest.
o The case of Costello v. M. C. Slater, Inc., supra, insofar as it may infer that an opinion as to fault,
coupled with a statement of fact, is admissible as a declaration against interest, should no longer
be followed.
o The trial court prejudicially erred in permitting the jury to consider, as an exception to the hearsay
rule, an opinion as to fault, attributed to one not a party.
DISPOSITION: The judgment is reversed and the cause remanded.
NOTES:

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11. CARPENTER v.

ISSUE: W/N – In a negligence action, an opinion as to fault is admissible as a declaration against

 The court came to the following conclusions:

 An opinion as to fault in a negligence action is particularly susceptible to error. A witness at

DISPOSITION: The judgment is reversed and the cause remanded.

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