Wilson, Joel

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University of Missouri School of Law

Missouri Law Review Volume 41 Issue 1 Winter 1976 Article 11 Winter 1976 Affirmative Defenses and the Fifth Amendment--Both Sword and Shield in Missouri Joel Wilson Follow this and additional works at: https://scholarship.law.missouri.edu/mlr  Part of the Law Commons Recommended Citation Joel Wilson, Affirmative Defenses and the Fifth Amendment--Both Sword and Shield in Missouri, 41 MO. L. REV. (1976) Available at: https://scholarship.law.missouri.edu/mlr/vol41/iss1/11 This Note is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact bassettcw@missouri.edu. Recent CasesAFFIRMATIVE DEFENSES AND THE FIFTHAMENDMENT- BOTH SWORD AND SHIELDIN MISSOURIState ex rel. Pulliam v. Swink'* Defendant was involved, in an automobile collision in which thedriver of the other vehicle was killed. The wife of the deceased filed suitfor the wrongful death of her husband. Defendant's answer generallydenied the plaintiff's allegations and asserted contributory negligence asa defense. Both parties appeared at the appointed time for the taking ofdepositions. The plaintiff's deposition was taken first and she answeredall questions. The defendant was then sworn and plaintiff's counsel beganto take his deposition. The defendant gave only his name and address andthereafter refused to answer any questions on the ground that to do somight incriminate him. At trial, the plaintiff moved to strike the defend-ant's answer pursuant to section 491.180, RSMc, 1969, which provides:If a party, on being duly summoned, refuse [sic] to attend andtestify, either in court or before any person authorized to take hisdeposition, besides being punished himself as for a contempt, hispetition, answer or reply may be rejected, or a motion, if made byhimself, overruled, or, if made by the adverse party, sustained.The trial judge indicated his intention to sustain the plaintiff's mo-tion. The defendant sought and obtained a preliminary writ of prohibi-tion from the Missouri Court of Appeals, St. Louis District. The writ wastransferred to the Supreme Court of Missouri where it was made per-manent. The court held that where a defendant seeks no affirmative re-lief and makes a good faith assertion of his constitutional privilege toremain silent at the first opportunity, a trial court would exceed its juris-diction if it entered an order striking the defendant's answer.Although in both the United States and the Missouri constitutionsthe privilege against self-incrimination is phrased in terms of criminal pro-ceedings, the privilege is available to witnesses in both criminal and civilactions.2 Generally speaking, a penalty may not be imposed against aparty who makes a valid assertion of this privilege.3 However, a majority of1. 514 S.W.2d 559 (Mo. En Banc 1974).2. For a general discussion as to the scope and problems of the privilege,see 8 J. WIGMORE, EVIDENCE §§ 2254-66 (McNaughton rev. 1961); see also Stateex rel. North v. Kirtley, 327 S.W.2d 166 (Mo. En Banc 1959); Morgan, The Privi-lege Against Self-Incrimination, 34 MINN. L. REv. 1 (1949).3. Spevack v. Klein, 385 U.S. 511 (1967); Garnty v. New Jersey, 385 U.S.493 (1967); Malloy v. Hogan, 378 U.S. 1 (1964). In none of these cases was theparty seeking any affirmative relief or asserting any affirmative defenses.80 1Wilson: Wilson: Affirmative Defenses and the Fifth AmendmentPublished by University of Missouri School of Law Scholarship Repository, 1976RECENT CASESjurisdictions4 have refused to allow either a plaintiff5 or defendant6 toobtain affirmative relief while refusing to testify on matters which, ifknown, might bar the granting of such relief. The rationale behind thisapproach is that the fifth amendment was not intended to be "both asword and a shield."7Under this reasoning, the privilege against self-incrimination is an-alogous to the doctor-patient privilege. A patient has the right to pre-vent his physician from testifying;s however, this privilege is waived ifthe patient files a suit for personal injuries because such a suit placesthe patient's physical condition in issue.9 Similarily, if a party's cause ofaction is based on facts peculiarly within his knowledge, that party waivesthe privilege against self-incrimination as to these facts when he seekssuch affirmative relief.10 The Pulliam court endorsed this reasoning, say-ing: "It is not unfair to preclude one who invokes the assistance of thecourts from recovery when he refuses to produce evidence peculiarly withinhis knowledge pertinent to his right to recover."" The question to be pur-sued by this note is whether asserting an affirmative defense constitutes"invoking the assistance of the courts."Some courts have refused to allow the assertion of an affirmative de-fense by a defendant who invokes the fifth amendment in connection withthe proceedings. In Rubenstein v. Kleven12 an unmarried woman broughtan action against a married man for breach of a contract under which theplaintiff was to render companionship and other services to the defendant.The defendant's answer asserted the illegality of the alleged contract asa defense. At deposition, the defendant asserted the privilege against self-incrimination in response to certain questions to which an affirmativeanswer might have indicated adultery. The United States District Courtof Massachusetts held that the defendant could not assert the affirmativedefense of illegality, based on a criminal act involving himself, whileclaiming the privilege against self-incrimination. The court said further4. See generally Annot., 4 A.L.R.Sd 545 (1965).5. Stockham v. Stockham, 168 So.2d 320 (Fla. 1964); Minor v. Minor, 282So. 2d 746 (Fla. Ct. App. 1970); Franklin v. Franklin, 283 S.W.2d 483 (Mo. EnBanc 1955); Schrad v. Schrad, 186 Neb. 462, 183 N.W.2d 923 (1971); Levine v.Bornstein, 6 N.Y.2d 462, 160 N.E.2d 921, 190 N.Y.S.2d 702 (1959); see also Note,28 FoRDnAif L. REv. 557 (1959); Note, 107 U. PA. L. REv. 426 (1959), both not-ing the Levine case.6. Brown v. United States, 356 U.S. 148 (1958), reh. den., 356 U.S. 948(1958); Nuckols v. Nuckols, 189 So. 2d 832 (Fla. Ct. App. 1966); Berner v.Schlesinger, 175 N.Y.S.2d 579 (1957); Annest v. Annest, 49 Wash. 2d 62, 298 P.2d485 (1956).7. See generally Independent Products Corp. v. Lowe's, Inc., 22 F.R.D. 266,277 (S.D.N.Y. 1958); Annot., 4 A.L.R.Sd 545 (1965); Annot., 72 A.L.R.2d 818(1960).8. § 491.060, RSMo 1969.9. State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo. En Banc 1968).10. Geldback Transport, Inc. v. Delay, 443 S.W.2d 120, 121 (Mo. 1969).11. 514 S.W.2d at 561.12. 150 F. Supp. 47 (D. Mass. 1957).1976]2Missouri Law Review, Vol. 41, Iss. 1 [1976], Art. 11https://scholarship.law.missouri.edu/mlr/vol41/iss1/11MISSOURI LAW REVIEWthat the defendant could not use "the testimony of any witness" or estab-lish that the acts occured "simply by inference" while claiming the privilegeagainst self-incrimination.' 3The United States Court of Appeals for the Eighth Circuit recentlyupheld the dismissal with prejudice of a defendant's affirmative defensesand counterclaims where the defendant had refused to answer interroga-tories on the ground that to do so might incriminate him.14 The decisionwas based on a finding of bad faith on the part of the defendant, butthe following language indicates the court's position in relation to the in-vocation of the fifth amendment by a party asserting an affirmative defense:[T]he right to assert the privilege does not, a priori, free theclaimant of the responsibility to respond in pre-trial discoverywhen information sought bears upon the claimant's own counter-claim and affirmative defenses.' 5In Pulliam the Missouri Supreme Court discussed and expressly af-firmed' 6 Franklin v. Franklin.'7 Franklin was a divorce case in which theplaintiff wife, relying on the fifth amendment, refused to answer writteninterrogatories regarding the status of her previous marriage. This re-fusal was held to justify striking her pleadings. The court recognized herright to assert the privilege, but said she may not by virtue of that privilegeobtain affirmative relief.'8The Pulliam court also expressly affirmed'0 Geldback Transport, Inc.v. Delay.2 0 Geldback was a replevin action against two defendants whereinone defendant cross-claimed alleging that he was entitled to possession ofthe chattel in question. His co-defendant sought by interrogatories to dis-cover how and from whom this right to possession was obtained. Follow-ing the cross-claimant's refusal to answer on the ground that to do somight incriminate him, the trial court dismissed the cross-claim. The ap-pellate court affirmed the dismissal on the basis that a party should notbe allowed to seek affirmative relief without disclosing the basis of hisclaim.2 '13. Id. at 48.14. General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204 (8thCir. 1973). The dismissal was based on FED. R. Civ. P. 37 (b) (2), which provides:[TMhe court in which the action is pending may make such orders in re-gard to a failure to obey an order to provide discovery as are just, andamong others the following:C. An order striking out pleadings or parts thereof, or stayingfurther proceedings until the order is obeyed, or dismissing theaction or proceeding or any part thereof, or rendering a judgmentby default against the disobedient party.15. 481 F.2d at 1213 (emphasis added).16. 514 S.W.2d at 561.17. 283 S.W.2d 483 (Mo. En Banc 1955).18. Id. at 485.19. 514 S.W.2d at 561.20. 443 S.W.2d 120 (Mo. 1969).21. Id. at 121.[Vol. 413Wilson: Wilson: Affirmative Defenses and the Fifth AmendmentPublished by University of Missouri School of Law Scholarship Repository, 1976RECENT CASESThe affirmation of Franklin and Geldback by the Pulliam court main-tained the long-standing position of the Missouri Supreme Court that ifthe privilege against self-incrimination is asserted by a party seeking af-firmative relief, the trial court may strike that party's pleadings.22 Theapplication of this statutory sanction23 is generally held to be within thediscretion of the trial court, to be reversed only in cases of clear abuse.24Such a striking is not a violation of due process.25 The importance ofPulliam is that implicit in the court's decision is the concept that a partyis not "invoking the assistance of the courts" when he asserts an affirma-tive defense. Pulliam stands for the proposition that a party in Missourican both plead an affirmative defense and invoke the fifth amendmentduring all phases of the proceeding. As pointed out by the dissentingopinion of Judge Finch,26 the majority's refusal to equate an affirmativedefense with affirmative relief is open to criticism.The defendant in Pulliam not only denied his own negligence, butalso asserted that the plaintiff's deceased was negligent. Contributorynegligence is an affirmative defense r with the burden of proof on the de-fendant.2 8 The existence of contributory negligence on the part of theplaintiff is a complete bar to his recovery.2 9 Assuming that the defendantin Pulliam was in fact negligent, there arose in the plaintiff a right ofaction, such right being the personal property of the plaintiff.30 Assumealso that, in the absence of contributory negligence, a jury would awarddamages of $50,000, thereby assigning a dollar value to his "prop-erty." If the defendant is successful in establishing a defense of con-tributory negligence, the plaintiff will be unable to collect any of thisclaim. As a practical matter, the defendant is seeking affirmative relieffrom the court in the full amount of plaintiff's claim. If the defendantwas seeking a set-off of all or part of plaintiff's claim via a counterclaim,and at the same time asserting a privilege against self-incrimination as tosome element of his counterclaim, the court would deny him this af-firmative relief.31 Yet, the court in Pulliam said that absent some badfaith or waiver on the part of the defendant, a trial court would exceedits jurisdiction by striking the affirmative defense of contributory negli-22. Franklin v. Franklin, 283 S.W.2d 483 (Mo. En Banc 1955).23. § 491.180, RSMo 1969.24. Graveman v. Huncker, 139 S.W.2d 494 (Mo. 1940); Frankel v. Hudson,271 Mo. 495, 196 S.W. 1121 (1917); State v. Buckstead, 399 S.W.2d 622 (K.C.Mo. App. 1966); State v. Reagan, 382 S.W.2d 426 (St. L. Mo. App. 1964); Kaiserv. Gardiner, 211 S.W. 883 (St. L. Mo. App. 1919); Dustin v. Farrelly, 81 Mo. App.380 (1899).25. Miles v. Armour, 239 Mo. 438, 144 S.W. 424 (1912).26. 514 S.W.2d at 562.27. FED. R. Civ. P. 8 (c); Mo. Sup. CT. R. 55.10.28. Mo. APPR. INST. §§ 32.01-.06 (1969).29. W. PROSSER, THE LAW OF TORTS § 65 at 425 (4th ed. 1971).30. See generally C.J.S. Property § 9 at 175; Clark v. Baker, 186 Ga. 65, 196S.E. 750 (1938); Cincinnati v. Hafer, 49 Ohio St. 60, 30 N.E. 197 (1892).31. Geldback Transport, Inc. v. Delay, 443 S.W.2d 120 (Mo. 1969).4Missouri Law Review, Vol. 41, Iss. 1 [1976], Art. 11https://scholarship.law.missouri.edu/mlr/vol41/iss1/11

Affirmative Defenses and the Fifth Amendment--Both Sword and Shield in Missouri

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Affirmative Defenses and the Fifth Amendment--Both Sword and Shield in Missouri

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