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06/28/83 N.R. v. A.D.

June 28, 1983

N.R., AS NEXT FRIEND OF N.R.J.D., A MINOR, APPELLANTS
v.
A.D., ADMINISTRATOR OF THE ESTATE OF R.J.D., RESPONDENT



From the Circuit Court of St. Louis County; Civil Appeal; Judge Philip J. Sweeney; Reversed and Remanded

Motion for Rehearing Overruled, Transfer Denied August 1, 1983. Application Denied September 20, 1983.

Before Simon, P.j., Stephan, Karohl, JJ.

The opinion of the court was delivered by: Simon

N.R., as next friend of N.R.J.D., a minor, (appellants), appeal from an order of the Circuit Court of St. Louis County in a court tried case declaring R.J.D. was not the father of N.R.J.D.

On appeal, raising four points of error, appellants contend that the trial court erred in: (1) ruling that appellants' request for admissions, which R.J.D. did not answer, were substantially performed by his answers in a subsequent deposition; (2) failing to rule that the unanswered request for admissions did not conclusively establish these matters against R.J.D., the original party in interest, and bind the subsequent party in interest, the Administrator; (3) failing to consider and ignoring in its order evidence of the comparison of the appearance of the minor child with photograph of R.J.D.; and (4) holding that R.J.D. was not the father of N.R.J.D. We reverse and remand.

N.R., while working as a waitress in 1967, met R.J.D. at her place of employment. Several years later, in 1974, the two renewed their acquaintance and, between June and September, dated several times each week. In late September or early October, R.J.D. began dating another woman; consequently, N.R. saw him less frequently. N.R. avers that she and R.J.D. engaged in sexual relations when they began dating in late May, 1974, and again in early January, 1975. R.J.D. concedes that the two engaged in sexual intercourse on a regular basis between June and December 10, 1974, but denied any sexual involvement with N.R. after December 10, 1974. N.R. commenced her normal menstrual period on December 27. N.R.J.D. was conceived after January 1, 1975. During the time period of conception, N.R. dated other men. On February 19, her doctor confirmed her pregnancy. On that same day, she notified R.J.D. of her condition. On March 19, R.J.D. accompanied N.R. to an abortion clinic. She consulted the doctor there, and told R.J.D. that her pregnancy had advanced beyond the twelve week time limit for a first trimester abortion. In fact, N.R. was nine to ten and one-half weeks pregnant. N.R.J.D. was born on October 7, 1975.

On November 4, 1975, N.R., as mother of N.R.J.D., filed an amended petition for lying-in expenses against R.J.D., as putative father. On June 4, 1976, N.R. requested admissions from R.J.D. that he had engaged in sexual intercourse with her on January 5 and 10, 1975, and that he had stated to her that he believed he was the father of N.R.J.D. Only five days later, R.J.D. responded to these same matters in a deposition conducted by N.R.'s attorney. R.J.D. never responded to N.R.'s request for admissions; but unfortunately, prior to trial, R.J.D. died. An estate was opened and an Administrator appointed.

N.R. filed motions requesting that the trial court: (1) substitute the Administrator of R.J.D.'s estate as the defendant; (2) declare paternity; and (3) determine heirship. The trial court denied her motions and sustained the Administrator's motion to dismiss the complaint. N.R. appealed the trial court's ruling. Our court reversed and remanded in N.R. v. R.J.D., 588 S.W.2d 76,79[9,10] (Mo. App.1979), holding that the actions for lying-in expenses were incurred before R.J.D.'s death and the determination of the status of N.R.J.D. did not abate upon the death of R.J.D., but the action seeking future support for the child abated. Id. The parties consented to substitute the Administrator of the Estate of R.J.D., (Administrator), as the successor party in interest.

N.R. filed a second amended petition for declaration of R.J.D.'s paternity of N.R.J.D., determination of N.R.J.D.'s status as heir of R.J.D.'s estate, and for reimbursement of maternity and child support expenses incurred before the death of R.J.D. Subsequently, the heirship allegation was deleted. The Administrator moved to dismiss the petition and answering, denied all allegations of the sexual relationship between N.R. and R.J.D., but admitted that R.J.D. refused to pay medical and hospital bills incurred by N.R.

The trial court, reserving its ruling on the Administrator's objection, allowed N.R.'s attorney to read into the record the request for admissions and to establish that R.J.D. had not responded to the request. The trial court accepted N.R.'s evidentiary offers of the photograph of R.J.D. and permitted N.R.J.D. to appear in Court. Depositions of R.J.D., N.R. and D.W., a co-worker of N.R., constituted the only other evidence admitted at trial. Neither N.R. nor any other witnesses testified. The trial court, construing R.J.D.'s deposition responses as substantially performing N.R.'s request for admissions, found that R.J.D. was not the father of N.R.J.D. and dismissed the petition.

The first point we must consider on appeal is whether the trial court erred in holding that R.J.D.'s deposition responses substantially answered N.R.'s request for admissions. Request for admissions and depositions serve distinct functions. *fn1 A request for admissions, as authorized by Rule 59.01(a), is designed to remove an issue from trial or to determine which pleaded matters present genuine issues for trial. Linde v. Kilbourne, 543 S.W.2d 543 (Mo.App.1976).

In parts pertinent to the issues before us, Rule 59.01 parallels Fed.R.Civ.P.36. See Rule 59.01, Committee Note (1974). The federal rule serves the same function described by the court in Linde. In Asea v. Southern Pacific Transportation Co., 669 F.2d 1242, 1245[2] (9th Cir.1981), rehearing and rehearing en banc denied March 8, 1982, the Ninth Circuit stated that "the purpose of Rule 36 (a) is to expedite trial by establishing certain material facts as true and thus narrowing the range of issues for trial."

In order to serve this economy function, *fn2 any matter admitted under the submission rule "is conclusively established, unless the court on motion permits withdrawal or amendment of the admission." Rule 59.01(b). Thus, "it is the concession of the issue--otherwise determinable by the trier of fact--which comes into evidence, not the assumption of the party who makes the admission." Linde, at 547[7-9]. An element of the burden of proof or even an ultimate issue may be required for admission under the rule. Id.

Under the federal rule, admitted matters produce the same conclusive effect. See Luick v. Graybar Electric Co., et al., 473 F.2d 1360, 1362[1] (8th Cir.1972), citing ...


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