(dissenting).
I respectfully dissent for the reason that I believe that it was error to admit into evidence the out-of-court statements of Charles Young and adopt as my dissent portions of the opinion of the Missouri Court of Appeals, Karísas City District, as follows:
“The sole question presented by plaintiffs’ appeal is whether the out of court statements of the boy, Charles Young were properly received by the trial court as declarations against interest.
“It is clear, of course, that from March 6, 1970, when plaintiffs accepted $50,000 in partial settlement of their claims under a judgment whereby they agreed to seek *301collection of any further judgment solely from defendant State Farm should coverage be proved, that Charles Young, although a nominal party, no longer had any interest which could be affected by the outcome of the litigation. For this reason, Charles Young’s out of court statements were not competent as admissions against his interest. Mahon v. Fletcher’s Estate, Mo.App., 245 S.W. 372, 374 [5],
. .we determine the issue on the separate contention made by plaintiffs that both out of court statements were inadmissible as declarations against the interest of Charles Young because the defendant failed to establish that Charles Young was unavailable as a witness.
“The distinction between an admission of a party and a declaration against interest is that ‘(a)n admission is competent only when made by a party or by someone identified in legal interest with a party to the action, and is admissible although the de-clarant is available as a witness. On the other hand, a declaration is in the nature of secondary evidence and is admissible only when the declarant is not available as a witness. It is competent even though the declarant is not a party or in privity with a party to the action, but the statement of the declarant must have been adverse to an interest possessed by the declarant at the time the statement was made’. Roush v. Alkire Truck Lines, Mo., 299 S.W.2d 518, 520 [1-4]; Sutter v. Easterly, [354] Mo. [282], 189 S.W.2d 284, 288 [5, 6], The rule in Missouri continues to be that for a declaration against interest to be admissible, the party offering the declaration must show that the testimony of the declarant is unavailable. Straughan v. Asher, Mo.App., 372 S.W.2d 489, 494-5 [5-6]. A declaration against interest is acknowledged to be an inferior grade of evidence and becomes admissible only by the necessity of the circumstances, ‘the impossibility of obtaining other evidence from the same source’. Wigmore on Evidence, 3rd Edition, Vol. V, Sec. 1456. No such necessity arises if the testimony of the declarant is available.
“In the present case, the testimony of Charles Young had been taken by deposition, at which time the adverse parties were present by attorneys and the witness was subject to full cross-examination. Not only was the deposition available to both parties at trial, but portions of that deposition were actually introduced into evidence. The legal effect of that deposition, for our purposes, is controlled by Civil Rule 57.29 (a), [V.A.M.R.,] which provides that depositions may be used as evidence ‘as if the witnesses were present and examined in open court’. The sense of that rule is that the quality of Charles Young’s deposition testimony is to be treated as undistinguishable from that which he might have given in person at the trial. The introduction in evidence of that deposition precludes the admissibility of his out of court statements as surely as did the personal testimony of the witness in Roush v. Alkire, supra, l.c. 520.
“Defendant State Farm urges, however, that Charles Young should be deemed unavailable because in his deposition testimony he answered he could not remember certain facts concerning which he had given answers in his out of court statements. We reject this argument. Defendant State Farm had the same rights of examination and cross-examination on the taking of the deposition that it would have been permitted if Charles Young had appeared personally in court. The record shows that defendant did use the extra-judicial statements in an effort to refresh the witness’ memory. Had Charles Young been personally present in court, defendant would have been in no better stead. Actually, defendant is discomfited by the failure of witness Young to testify as defendant would have liked and the real argument is that the prior inconsistent statements should be available as independent substan*302tive evidence, a use which we deny under these facts.
“Defendant State Farm then argues that even if the extra-judicial statements were not admissible as declarations against interest, they were admissible as admissions of a party or one in privity with a party, and thus not subject to the requirement of the non-availability of the declarant. We have already concluded that the effect of the March 6, 1970 settlement agreement was to divest Charles Young of any further interest in the litigation. As the defendant, itself, so aptly stated in its motion for judgment by default filed May 12, 1970: ‘(T)he only real parties in interest remaining in this case are plaintiffs Orr and defendant State Farm Mutual Automobile Insurance Company .... there are no remaining issues as to plaintiff Employers Mutual or defendants Young or Thieman, leaving only plaintiffs Orr and defendant State Farm in the case.’
“Nor can it be said that at the time of trial plaintiffs Orr and Charles Young were in privity so as to authorize the reception in evidence of the statements made by Charles Young as admissions against the interest of plaintiffs Orr. The only privity which could arise between them was that created by statute after the entry of a judgment against Charles Young upon a liability which defendant State Farm would be legally responsible to satisfy. Taverno v. American Auto Ins. Co. [232], Mo.App. [820], 112 S.W.2d 941, 944 [5]; Sections 379.195, 379.200, V.A.M.S.; see, also, Hocken v. Allstate Insurance Co., [235] Mo.App. [991], 147 S.W.2d 182, 186 [2-4]. There is no ground upon which the extra-judicial statements by Charles Young could have been received as affirmative evidence. The admission of those statements constitutes reversible error.”
In my opinion the cause should be reversed and remanded for a new trial.