This is аn action for personal injuries, loss of services, and property damage brought by John Coffel and Gladys Coffel, his wife, against Jessie W. Spradley, arising from the collision of their automobiles. Immediately before trial, the death of Mr. Spradley was suggested to the court by formal motion and the court ordered the substitution of Betty I. Spradley, adminis-tratrix of the decedent’s estate, as party defendant. The plaintiffs submitted their recovery on the rear end collision doctrine. The defendant was permitted to prove a sudden and unexpected brake failure under the general denial of the answer. This proof came principally from the deposition, read into evidence by the defendant, of the deceased Jessie W. Spradley. The plaintiffs appeal from the judgment entered upon the jury verdict for the defendant. They claim error in that 1) the trial court improperly permitted the deposition of the deceased, Jessie W. Spradley, to be read into evidence and 2) the trial court improperly received evidence and permitted jury argument of a sudden unexpected brake failure although the issue had not been pleaded by the defendant and is no longer a submissible defense.
The principal evidencе offered by the defendant on the issue of liability was the deposition of Jessie W. Spradley. Plaintiffs objected to the reading of the deposition in evidence because it was not signed by the witness and did not otherwise conform to the procedures of § 492.340 and 492.400, RSMo 1969, V.A.M.S., and Rules 57.22 and 57.29, V.A.M.R., which now supersede them. 1
*738 It is the sense of the plaintiffs’ argument that by the provisions of Rule 57.22 a deposition does not qualify as evidence unless it is signed by the witness or, in the absence of such signature, by the officer by whom the testimony was taken with a statement in the record of the reasons for the absence of the signature of the witness —in this case, the fact оf his death — and that the deposition of Jessie W. Spradley, devoid of either signature, was improperly received as evidence. The death of Jessie W. Spradley, however, was a fact adjudicated by the Order of Substitution entered upon the motion of the Administratrix, regularly filed, noticed and determined in the mannеr provided by Rules 52.13(a) and 43.01. The statement of the reporting officer that the deposition had not been signed by the witness because of his death would merely be corroborative of a fact already conclusively proved between the litigants.
Actually, plaintiffs concede the fact of the death of the witness but contend that the signature of the officer reporting the testimony is nonetheless indis-pensible, in cases where the signature of the witness is unavailable or refused, as an authentication of the accuracy of the transcription. Under the procedures of Rule 57.22, the signature of the witness vouches for the accuracy of the transcription, but the signature of the officer taking the testimony authenticates only his statement of the reasons the signature of the witness does not appear, reasons which may be contested by a motion to suppress the deposition. The certification of the offiсer taking the deposition attesting that the examination has been faithfully reported and transcribed is provided for separately by Rule 57.23. In this case, it was both proved and conceded that the witness Jessie W. Spradley had died. That was sufficient reason under Rule 57.22 to excuse his signature and qualify his deposition examination as evidence. Drummond v. Hartford Fire Insurance Company,
The signature of the witness goes to the form, rather than the substance, of the deposition and is not in all events indispensable, as Rule 57.22 by its terms recognizes. Will Docter Meat Co. v. Hotel Kingsway,
The plaintiffs appear to argue that, even assuming the deposition qualified as evidence under Rule 57.22, it could not be read at the trial because the fact of the death of the witness, authorizing the use of the deposition, was not proved in the mode of Rule 57.29. That rule, which provides that “the facts which would authorize the reading of the deposition may be established by the testimony of the deposing witness, or the certificate of the officer taking the deposition, or the testimony
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of the person or officer who attempted to serve the witness with а subpoena”, does not prescribe the exclusive methods of proof available for that purpose. A party may resort to other sources to lay the foundation for the introduction of the deposition as evidence. Doyle v. St. Louis Transit Co.,
The collision which gives rise to this action occurred when the vehicle operated by plaintiff John Coffel and occupied also by his wife stopped at an interseсtion for a red traffic signal light and was struck at the rear end by the vehicle defendant’s decedent was operating. The officer who investigated the occurrence testified the approach to the traffic signal light from the south, the direction of plaintiffs’ travel, as a downgrade commencing apрroximately 150 feet north of the intersection. He testified also that during the course of the investigation the decedent, Jessie W. Sprad-ley, stated that his brakes faded out just prior to the collision with the plaintiffs’ vehicle. The deposition testimony of Jessie W. Spradley, read in evidence, was that as he apрroached from the south, at a speed of about 25 miles per hour, the traffic light at the intersection 150 feet away turned to red. He then applied his brakes for the first time and they operated normally to reduce his speed. He released his brakes and then, when he was about 25 feet from the plaintiffs’ vehicle, applied them again at which time he had no brakes. The pedal went all the way to the floor without effect. He tried to apply the emergency brake but did not succeed. At the time of impact the Spradley car was going from 10 to 15 miles per hour. Mr. Spradley testified that his brakes had been in good working order prior to the collision; they had been checked two months previously. The day after the occurrence, the brake system was examined and a defective master cylinder removed. The rest of the brake system was found to be intact and after the replacement of the master cylinder, the brakes were once again effective.
From the outset of the trial, first in anticipation of defendant’s opening statement to the jury that her evidence would show brake failure as an exculpation for the negligence alleged, then during the proof of brake failure, and finally in anticipation of dеfendant’s closing argument to the jury that the sudden and unexpected brake failure excused negligence, the plaintiffs objected that such references and evidence were improper in the absence of a defense of brake failure affirmatively pleaded by the defendant, and were otherwise proscribed because tantamount to proof of a sole cause defense, an issue no longer sub-missible under MAI. The trial court overruled each such objection.
In the course of their discursive presentation of these points, the plaintiffs have added others so that the full statement of these claims of error include: 1) brake failure must be affirmatively pleaded by a defendant intending to rely on that defense, 2) there was not in any event substantial evidence that brake failure was the proximate cause of the collision (and therefore defendant was improperly permitted to argue that issue to the jury), 3) defendant should not have been permitted to present evidence of brake failure because such proof would establish negligence per se as a violation of § 307.170(3), RSMo 1969, V.A.M.S., which requires all motor vehicles to have two sets of adequate brakes kept in good working order, and therefоre, proof of brake failure would excuse one act of negligence by proving another, 4) the defense of brake failure is no longer feasible or allowable under Missouri law and, 5) the defendant’s jury argument of unavoidable accident by brake failure amounted to an oral instruction to the jury on a mаtter defendant was *740 not entitled to have declared by an instruction of the court.
A close and fair reading- of the record requires the conclusion, however, that only the first and fourth points have been raised, preserved and presented for our review comformably to the rules of appellate procedure. As to the second and third claims of error, at no time did plaintiffs object to the defendant’s jury argument on the ground that there was no evidence the brake failure was the proximate cause of the injury nor was the point preserved in the plaintiffs’ motion for new trial. Nor was the evidence оf brake failure objected to at the trial on the ground plaintiffs now assert for the first time, that such evidence tends to excuse one negligent act by the proof of another. As to the fifth point, the objection lodged by plaintiffs to the closing argument of unavoidable accident by brake failure was of a diffеrent form and substance than now asserted. We decline to review points two, three and five because the requirements of Rules 79.01 and 79.03 have not been met.
A defendant charged with the negligent operation of a motor vehicle may show himself free of the alleged negligence by evidence of a suddеn brake failure. Koogler v. Mound City Cab Company,
The promulgations of MAI Nos. 1.01, 1.03 and 1.04 that no instruction may be given submitting unavoidable accident, sudden emergency, or which hypothesizes the conduct of one other than the defendant as the sole cause of the ocсurrence, do not change the substantive right of a defendant to deny the claim of negligence against him, to present evidence that he is. free of such negligence, and to argue the effect of this evidence to the jury. Birmingham v. Smith,
The judgment is affirmed.
All concur.
Notes
. The relevant provisions are: Rule 57.22 (§ 492.340, RSMo 1969, V.A. M.S.) : “Depositions Shall be Submitted to Witness for Examination — Signing of Deposition.
“When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall bе read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them; provided, however, that the answers or responses as originally given, together with the changes made and reasons given therefor, shall be considered as a part of the deposition. The deposition shall then he signed hy the witness, unless the parties hy stipulation waive the signing or the witness is ill or cannot he found, or is dead or refuses to sign. If the deposition is not signеd hy the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness, or death or absence of the witness or the fact of the reftisal to sign together with the reasons, if any, given therefor; and the deposition may then be used as fully as though signed, unless, on a motion to suppress, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.” (Emphasis supplied) ;
and:
Rule 57.29 (§ 492.400, RSMo 1969, V.A. M.S.) : “When Depositions May Be Read
“(a) Depositions When Used in Evidence. Examinations or depositions taken and returned in conformity to the provisions of these Rules may be read and used as evidence in the cause in which they were taken, as if the witnesses were present and examined in open court on the trial thereof.
“(b) Facts Authorizing Use — -How Proved. The facts which would author *738 ize the reading of the deposition may be established by the testimony of the deposing witness or the certificate of the officer taking the deposition or the testimony of the person or officer who attempted to serve the witness with a subpoena
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“(2) If he is dead; * *
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