dissenting.
I must respectfully dissent. The judgment is reversed because the trial court instructed the jury to disregard the deposition testimony of Worcester in determining the liability of defendant Debow. So far as defendant Debow was concerned, that deposition testimony was hearsay evidence. I believe the admonition of the trial court was required and was not error.
*96It is significant this deposition was offered by the plaintiff against the defendant Debow who was not a party when the deposition was taken and had no notice of and did not participate in the taking of that deposition. There is a fundamental reason to prohibit the use of deposition testimony or prior trial testimony against one not a party. That reason is not necessarily applicable to the use of such testimony in support of one not a party but against one who was a party to the deposition or prior trial. See, McCormick on Evidence, § 256 (E. Cleary 3d ed. 1984); 11 J. Moore, Moore’s Federal Practice, § 804.04[2] (2d ed. 1985).
The fundamental limitation against the use of such hearsay evidence was clearly and tersely stated. “It ought to require no citation of authority to sustain the proposition that a deposition cannot be read against one not a party to a suit at the time it was taken.” Cf. Hendricks v. Calloway, 211 Mo. 536, 558, 111 S.W. 60, 66 (1908). Generally, that limitation was eased to permit the use of deposition testimony or prior trial testimony against one who was not a party at the time of that testimony but was in “privity” with one who was a party at that time. Cf. First National Bank of St. Petersburg v. Switzer, 277 S.W.2d 689 (Mo. App.1955). As so used, the term privity was generally held to mean mutual or successive relationships in a res or property. See 11 J. Moore, supra, § 804.04[2],
However, as noted in the majority opinion, in recent years a broader limitation on the use of such testimony has been advocated. E.g., 5 J.H. Wigmore, Evidence, § 1388, (Chadbourn rev. 1974); McCormick on Evidence, supra. The limitation so advocated has been based upon the proposition “the requirement of identity of parties is after all only an incident or corollary of the requirement as to identity of issue.” 5 J.H. Wigmore, supra, at 111. Or, put another way, “[ijdentity of interest in the sense of motive, rather than technical identity of cause of action or title, is the test.” McCormick on Evidence, supra, at 765. The limitation so advocated has received various expressions. Generally stated, such hearsay evidence is to be admitted if the adverse party on the prior trial or at the deposition had the opportunity for cross-examination and a motive to do so similar to that which the adverse party has in the trial in which the evidence is offered. See, Condas v. Condas, 618 P.2d 491 (Utah 1980); 5 J.H. Wigmore, supra, § 1387; McCormick on Evidence, supra, § 257. The broader limitation has not been accepted without question. “Approval of the broad proposition taken by Wigmore—that is, that the true test of admissibility is whether there was adequate opportunity for cross-examination on the issue affecting the present party—was specifically denied in (citations omitted).” Annot., Former Testimony— Identity of Parties, 142 A.L.R. 673, 700 (1943). Also see Annot., Deposition—Admission in Evidence, 4 A.L. R.3d 1075 (1965). A clear statement of the opposing views is found in Insul-Wool Insulation Cory. v. Home Insulation, 176 F.2d 502 (10th Cir.1949).
In theory, the scholarly basis for the broader limitation may be sound. However, in my opinion it does not recognize reality or individual rights.
Such hearsay testimony in question is not a spontaneous statement. Often it will be given by a party. Almost without exception the witness will have been interviewed by the proponent and known to be favorable to him. Depositions are generally taken for discovery, not the presentation of evidence, and the incentive for cross-examination is lacking.
Opportunity and motive do not assure a proper and effective cross-examination. It has often and truly been said that cross-examination is an art. Depending upon the attorney, it can serve to emphasize and enhance the direct testimony of the witness or it can destroy it. A litigant should be entitled to an attorney of his own choice.
This individual right has been recognized in the adoption of Federal Rule of Evidence 804(b)(1), dealing with the admissibility of former testimony. In discussing that Rule, it has been stated:
*97“The [House Judiciary] Committee considered that it is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party. The sole exception to this, in the Committee’s view, is when a party’s predecessor in interest in a civil action or proceeding had an opportunity and similar motive to examine the witness.”
The Senate accepted the House modification.
The Congressional rejection of the Supreme Court’s abolition of the traditional identity of parties requirement had the effect of codifying the common law rule as to the identity of those against whom former testimony may be introduced. The “predecessor in interest” rule in civil cases can be given meaning by considering pre-codification law. The relationship between a party and his predecessor in interest is a privity relationship and has been described as follows:
“The term ‘privity’ denotes mutual or successive relationships to the same rights of property, and privies are distributed into several classes, according to the manner of this relationship. Thus, there are privies in estate, as donor and donee, lessor and lessee, and joint tenants; privies in blood, as heir and ancestor, and co-parceners; privies in representation, as executor and testator, administrator and intestate; privies in law, where the law, without privity of blood or estate, casts the land upon another, as by escheat."
11 J. Moore, supra, § 804.04[2].
The same limitation has been recognized by the Federal Rules of Civil Procedure providing for the use of depositions:
Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and when an action has been brought in any court of the United States or of any State and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
Fed.R.Civ.P. 32(a) (emphasis added).
The majority opinion holds a deposition to which a master was a party is admissible against a servant who was not a party. Presumably, a deposition to which a servant is a party will be admissible against a master who was not a party. A master and servant are not in privity, as defined above. Each has separate assets. It is not difficult to visualize circumstances in which a servant’s motive and ability to cross-examine are not great. The fact of separate interests of the parties are emphasized by the possibility of indemnification of the master by the servant.
The broad view of admissibility of such hearsay evidence places separate assets and claims beyond the control and responsibility of the owner thereof. That view will make a wide range of hearsay admissible. E.g., in Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3d Cir.1978), the court in effect negated the “predecessor in interest” requirement Congress placed in Federal Rule of Evidence 804(b)(1). In that case a seaman sought recovery for injuries inflicted upon him by a fellow seaman. A Coast Guard disciplinary proceeding was conducted. The court held the Coast Guard investigating officer to be the claimant’s predecessor in interest. Cf. Complaint of Paducah Towing Co., Inc., 692 F.2d 412 (6th Cir.1982). In Carpenter v. Dizio, 506 F.Supp. 1117 (E.D.Pa.1981), a district attorney was found to be a predecessor in interest of a city, the defendant in an action under 42 U.S.C.A. § 1983.
The basis for the broad view has also been urged to permit the admission of such hearsay evidence when there is a “substantial” identity of issues. The fundamental weakness in that basis is acknowledged.
Moreover, insistence upon precise identity of issues, which might have some appropriateness if the question were one of res judicata or estoppel by judgment, are *98out of place with respect to former testimony where the question is not of binding- anyone, but merely of the salvaging, for what it may be worth, of the testimony of a witness not now available in person.
McCormick on Evidence, supra, at 767-68. In reality, the admission of such hearsay may have as conclusive an effect as a judgment. The requirement of privity, as above defined, provides a common or derivative interest in property or a res which is some justification for the admission of such hearsay and limits its consequences. The reason for excluding such hearsay is yet recognized. “Furthermore, fairness requires that a party, such as Exxon, should not be burdened by an inadequate examination conducted by a predecessor in interest. See generally, H.R.Rep. No. 650 93rd Cong.2d Sess. (1973) 4 U.S.Code & Admin. News pp. 7051, 7088 (1974).” Complaint of Paducah Towing Co., Inc., supra, at 418.
The disposition of this case is not controlled by Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740, 142 A.L.R. 666 (1942). In that case the interest of each party was derived from the injury to the wife. Further, that case acknowledged the admission of such testimony to be a matter of procedure. This acknowledgment is peculiarly applicable to a statement by rule of the steps necessary to cause a deposition to be admissible in a pending action. Missouri Rule 57.07(a) expressly provides a deposition “may be used against any party who was present or represented at the taking of the deposition-” Rule 57.07 was not applicable to that decision. In my opinion, that Rule also establishes the trial court did not err. Buttry v. Sutemeier, 617 S.W.2d 452 (Mo. App.1981). I would affirm the judgment.