
    Lanny A. DeMOTT, Plaintiff-Appellant, v. Jay B. DILLINGHAM, Executor of the Estate of J. B. McCorkle, Deceased, Defendant-Respondent.
    No. KCD26999.
    Missouri Court of Appeals, Kansas City District.
    Aug. 5, 1974.
    
      Hull & Strong, John H. Fraze, Mary-ville, for plaintiff-appellant.
    Beavers, Thomson, Beavers & Ross, Joe Beavers, Maryville, for defendant-respondent.
    
      Before DIXON, C. J., and SHAN-GLER and WASSERSTROM, JJ.
   SHANGLER, Judge.

The plaintiff brought an action to enforce an oral contract whereby J. B. Mc-Corkle allegedly agreed to pay plaintiff $10,000 for the procurement for McCorkle of employment as sales manager of a cattle dispersion sale for which McCorkle was paid $20,000. McCorkle had paid plaintiff $1,000 and plaintiff now sues to recover the balance.

After the commencement of the action, the deposition of plaintiff was taken on behalf of McCorkle, then the defendant. Thereafter, but prior to trial, McCorkle died and the executor of his estate was duly substituted as party defendant.

The cause was tried to the court. The plaintiff offered into evidence his oral testimony concerning the alleged contract with the deceased and, also, offered the deposition of plaintiff taken on behalf of McCorkle, then defendant. The executor sought to exclude the evidence as incompetent under § 491.010, RSMo. 1969, V.A.M. S., the dead man’s statute. The trial court refused the deposition, and after having admitted the oral testimony of plaintiff provisionally, excluded it as well at the conclusion of the evidence. Judgment was awarded defendant.

The plaintiff asserts that the trial court erred in refusing his oral and deposition testimony as evidence of his conversation with the deceased McCorkle and of the agreement between them because defendant, by taking the deposition of plaintiff and then by his cross-examination of plaintiff at the trial, waived the disqualification of § 491.010 and, at the least, plaintiff was entitled to give oral testimony concerning the subject matter of the deposition.

The purpose of § 491.010 is to .place all parties to a litigated proceeding on a parity, so that as to transactions with a person now deceased, the surviving party is made incompetent to the extent his testimony might be questioned by the other party, if living. Elsea et al. v. Smith et al., 273 Mo. 396, 202 S.W. 1071, 1073[1, 2] (1918). The incompetency of a witness under the statute may be waived, however, as when the party protected by the disqualification takes the deposition of the witness. Baker v. Baker, 363 Mo. 318, 251 S. W.2d 31, 33[3] (1952). The plaintiff contends that this principle controls the issue here, that since McCorkle took the deposition of the plaintiff, the trial court erred in excluding the oral testimony of the transaction offered by plaintiff. The decision in Baker has no application to the facts here. In that case the defendant was held to have waived the protection of the statute when she took the deposition of a party who was disqualified as a witness because the other party to the transaction [through whom plaintiff claimed] was dead. In the present case, on the other hand, plaintiff was a competent witness when the deposition was taken because McCorkle was then still alive, thus the executor cannot be held to have waived the benefit of a disqualification which had not yet accrued.

The plaintiff contends, however, that a litigant who takes the deposition of his adversary gains the same advantage of discovery whether taken before or after the death of the other party to the transaction, so the same rule of waiver of the disqualification of § 419.010, of right, should apply in either case. This is the view expressed in Brown v. Saladoff, 209 Pa.Super. 263, 228 A.2d 205 (1963) [cited on this point by plaintiff] but not followed in Missouri. The long-standing rule in this state is that [Messimer v. McCrary, 113 Mo. 382, 21 S.W. 17, l.c. 19 (1893)]:

The competency of a witness to testify can only be determined when his deposition is offered upon the trial, at which the deposition stands for the witness. If he is not competent under the law as it then exists, his deposition cannot he read, although he may have been compe tent under the law as it existed when it was taken. (Emphasis added.)

It is the sense of this rule that the taking of a deposition is never a part of the trial of the action, but only a preparation designed to obtain or preserve evidence for subsequent use at the trial if the evidence is then admissible and a party chooses to make use of it. Woelfle v. Connecticut Mut. Life Ins. Co., 234 Mo.App. 135, 112 S.W.2d 865, 873 [8-10] (1938) , It is implicit in these holdings that the mere taking of a deposition from a witness competent to give it does not waive an incompetency which arises thereafter.

The plaintiff cites from Vigeant v. Fidelity National Bank and Trust Co., 239 Mo.App. 46, 188 S.W.2d 533, l.c. 537 (1945) a fragment which appears to declare a contrary principle:

Where the disability is raised by statute, it supposes a total disqualification at the time of trial, or when the evidence is taken. But it is not intended to exclude evidence which was admissible and competent at the time it was given.

That case, however, neither touches the waiver of incompetency under the dead man’s statute nor impairs the rule that the competency of a deposition as evidence is to be determined by the law as it exists at the time of trial. Vigeant was an action for a real estate commission. The deponent, the president of the defendant bank, who had transacted the agreement of sale with plaintiff on behalf of the bank, died prior to the trial. The defendant bank conceded that plaintiff could properly read the deposition of the decedent into evidence, but asserted that the dead man’s statute barred plaintiff from offering testimony in contradiction of the statements contained in the deposition. The court first determined [citing Parsons v. Parsons, 45 Mo. 265 (1870)] that the purpose of the statute is to place the parties on an equality, a purpose served by permitting the decedent to speak through his deposition. The court then determined that plaintiff was not conclusively bound by the deposition testimony of the decedent but could offer evidence in contradiction of testimony so preserved. Vigeant is no support for the issue of waiver raised on this appeal. On the contrary, to allow plaintiff the testimony of his own deposition when that of the decedent has not been similarly preserved is to accord an advantage the dead man’s statute designs to prevent.

The plaintiff does not suggest, in any event, how waiver by the defendant of the benefit of the dead man’s statute would have allowed his deposition testimony as evidence at the trial which he personally attended. Depositions may be used and read in evidence only as provided by Rule 57.29, V.A.M.R. [§ 492.400, RSMo. 1969, V.A.M.S.]. A deposition may not be read in evidence when the deponent is present in court except where it is offered to impeach the testimony of the witness or as an admission against his interest. Barber Asphalt Pav. Co. v. Ullman, 137 Mo. 543, 38 S.W. 458, 465 (1896); Winegar v. Chicago, B. & Q. R. Co., 163 S.W.2d 357, 367 [11] (Mo.App.1942). Our decisions have formulated in the special circumstance of the dead man’s statute the one exception Vigeant intimates: that the deposition of the surviving party to a transaction will be allowed as evidence where to deny the use would result in an unconscionable advantage to the deceased adversary party. Thus, where the testimony of the decedent has been preserved by deposition or prior trial record and is thus available as evidence to the personal representative of the decedent, the surviving party may testify to those matters raised in the testimony so preserved. Coughlin v. Haeussler, 50 Mo. 126 (1872); Stone v. Hunt, 114 Mo. 66, 21 S.W. 454 (1893) ; Parsons v. Parsons, supra. There is no contention that these circumstances governed the trial of this cause now on appeal; the deposition of plaintiff, as well as his oral testimony at the trial, were properly refused as evidence.

The plaintiff also contends that at the trial the defendant cross-examined as to new matter and, to that extent, waived the benefit of the dead man’s statute. This point, made abstractly and without reference either to transcript designation or to the substance of the complaint, is not properly presented for our review.

The judgment of the trial court is affirmed.

All concur. 
      
      . See, also, Howard v. Strode, 242 Mo. 210, 146 S.W. 792, 1. e. 797 (1912) which holds that the statute [present § 492.400] which provides that depositions “may be read and used as evidence in a cause in which they shall have been taken as if the witnesses were present and examined in open court on the trial thereof” treats the deposition as a witness and the competency 512 S.w.íd — 58V2 of each is to be determined by the status of the witness upon the stand. Also, Maple-wood Planing Mill and Stair Co. v. Pennant Construction Co., 344 S.W.2d 629, 633 (Mo.App.1961) which holds [1. c. 633] that the competency of a deposition as evidence is to be determined at the time it is offered at the trial.
     