Section 7.45 State Court

• Library: Sources of Proof (2014 Ed.)

b. (§7.45) State Court

In state court, an admission by a party-opponent is a conscious or voluntary acknowledgment by a party-opponent of the existence of certain facts that are:

· relevant to the cause of the party offering the admission; and

· unfavorable to, or inconsistent with, the position taken at trial by the party-opponent.

In re Mirabile, 975 S.W.2d 936 (Mo. banc 1998); Around the World Importing, Inc. v. Mercantile Trust Co., N.A., 795 S.W.2d 85 (Mo. App. E.D. 1990). Thus, a statement by a party that was made when the person’s mental state precluded a reliable narration of facts and events is not an admission. See McElhiney v. Mossman, 850 S.W.2d 369 (Mo. App. E.D. 1993). Similarly, a statement by a party that is consistent with the party’s trial position is not an admission. See Spearman v. Hoskins, 806 S.W.2d 440 (Mo. App. E.D. 1991) (the trial court properly excluded the defendant’s statement that it was dangerous to jump on an unpadded trampoline because the issue was whether the trampoline was padded when the plaintiff was injured; the defendant’s opinion that it was not safe to use an unpadded trampoline was not inconsistent with his trial position that the trampoline was padded when the plaintiff got hurt).

In Farmers Exchange Bank v. Metro Contracting Services, Inc., 107 S.W.3d 381 (Mo. App. W.D. 2003), the central issue was whether the case was governed by Kansas or Missouri law. One factor bearing on that issue was appellant Russell’s domicile. Russell claimed that he resided in Missouri; the bank claimed that he resided in Kansas. The trial court concluded that Russell was a Kansas resident and applied Kansas law. On appeal, Russell argued that the trial court erred when it relied on hearsay statements made by Russell in his loan documents, which listed a Kansas residence address. The appellate court held that Russell’s statements were admissible as admissions by a party-opponent because:

· they were a conscious acknowledgment that his residence was in Kansas;

· where Russell lived was relevant to the conflict of law issue; and

· the statements in the loan documents were inconsistent with Russell’s position that he was a Missouri resident.

An admission by a party-opponent is typically made by a party to the litigation or by one in privity with, or identified in legal interest with, a party. Roush v. Alkire Truck Lines, Inc., 299 S.W.2d 518, 520 (Mo. 1957); United Servs. of Am., Inc. v. Empire Bank of Springfield, 726 S.W.2d 439, 444 (Mo. App. S.D. 1987). Thus, while a statement made by an automobile driver before his death was admissible against his estate as an admission by a party-opponent in a suit to recover damages caused by the driver’s negligence, a statement by a decedent is not admissible in a wrongful death suit. Compare Brautigam v. Hoffman, 444 S.W.2d 528, 532 (Mo. App. E.D. 1969), with Koenke v. Eldenburg, 803 S.W.2d 68 (Mo. App. W.D. 1990). In Koenke v. Eldenburg, 803 S.W.2d 68 (Mo. App. W.D. 1990), the appellate court held that a decedent is not in privity with the plaintiff, so the decedent’s statements do not qualify as admissions and are excludable as hearsay unless they qualify for admission under some...