26 F.R.D. 116 (W.D.Pa. 1960), C. A. 17356, Rosenthal v. Peoples Cab Co.

Docket Nº:Civ. A. 17356.
Citation:26 F.R.D. 116, 3 Fed.R.Serv.2d 509
Opinion Judge:GOURLEY, Chief Judge.
Party Name:Ruben ROSENTHAL, Plaintiff, v. PEOPLES CAB COMPANY, a corporation, Defendant.
Attorney:John Wirtzman, Pittsburgh, Pa. for plaintiff. Arthur G. Stein, Pittsburgh, Pa., for defendant.
Case Date:September 16, 1960
Court:United States District Courts, 3th Circuit
 
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Page 116

26 F.R.D. 116 (W.D.Pa. 1960)

3 Fed.R.Serv.2d 509

Ruben ROSENTHAL, Plaintiff,

v.

PEOPLES CAB COMPANY, a corporation, Defendant.

Civ. A. No. 17356.

United States District Court, W. D. Pennsylvania.

September 16, 1960

Diversity action based on negligence, wherein plaintiff filed motion to suppress deposition. The District Court, Gourley, Chief Judge, held that under rule providing that any party may take testimony of any person for purpose of discovery or for use as evidence in action or for both purposes, and that at trial, any part or all of deposition, so far as admissible under rules of evidence, may be used against any party who was present at taking thereof, where deposition of defendant's taxicab driver, who subsequently died, had been taken for discovery purposes only by plaintiff, and defendant's counsel had been present, defendant would be allowed to use deposition during trial as substantive testimony for whatever it might be worth, subject to cautionary instructions and such observations as circumstances might require, notwithstanding that there had been no cross-examination of driver.

Motion refused.

Page 117

John Wirtzman, Pittsburgh, Pa. for plaintiff.

Arthur G. Stein, Pittsburgh, Pa., for defendant.

GOURLEY, Chief Judge.

In this diversity action based on negligence the following question is presented:

Where a deposition is taken by the plaintiff solely for the purpose of discovery as distinguished from trial from an agent of the defendant who was the driver of the instrumentality and who subsequent thereto has died, may the defendant use said deposition during trial as substantive testimony?

The court is confronted with an enigma in view of the complete dearth of authority and the silence manifested in the Rule governing depositions, Rule 26, Federal Rules of Civil Procedure, 28 U.S.C.A.

Nevertheless, certain principles indigenous to the administration of justice must be considered together with the language of Rule 26 of the Federal Rules of Civil Procedure.

It is not in dispute that counsel for plaintiff deposed the driver of defendant's taxicab solely for purposes of discovery. Counsel for defendant was present but engaged in no interrogation of the witness. The witness subsequently died and defendant desires to offer said deposition as substantive evidence during trial.

Plaintiff...

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