Brown v. Tanner

• Decision Date: 04 June 1964
• Docket Number: No. E-264,E-264
• Citation: 164 So.2d 848
• Parties: Jessie Lee BROWN, Setzer's Warehouse, Inc., a Florida corporation, and Food Fair Stores, Inc., a Pennsylvania corporation, Appellants, v. Chester Arthur TANNER, Appellee.
• Court: Florida District Court of Appeals

Page 848

164 So.2d 848

4 A.L.R.3d 1063

Jessie Lee BROWN, Setzer's Warehouse, Inc., a Florida corporation, and Food Fair Stores, Inc., a Pennsylvania corporation, Appellants, v. Chester Arthur TANNER, Appellee.

No. E-264.

District Court of Appeal of Florida, First District.

June 4, 1964.

Reynolds & Goldin, Gainesville, for appellants.

Gray, Chandler, O'Neal, Carlisle & Avera, Gainesville, for appellee.

RAWLS, Judge.

The two salient points on this appeal concern the trial judge's action in admitting into evidence material portions of a deceased party's deposition which was taken prior to joinder of appellants as parties defendant in this cause. Appellants insist that said action was erroneous and constitutes such harmful error that a new trial is in order. Appellee contends that the trial judge was well within his discretion in admitting such evidence, but even if the action is held to be erroneous, it falls within the harmless error decisions.

This action was instituted by appellee-plaintiff Tanner subsequent to a motor vehicle collision which involved an automobile driven by Tanner, a pulpwood truck owned by Floyd James Saunders and operated by Henry Brown, and a truck owned by appellant Setzer's Warehouse, Inc., but operated at the time by Food Fair Stores, Inc. by and through its employee, Jessie Lee Brown. Plaintiff's wife was killed in the accident.

On September 25, 1961, plaintiff used Floyd James Saunders, owner of the pulpwood truck and Henry Brown, driver of same, for damages arising out of the accident. On March 16, 1962, plaintiff's attorney filed notice of taking the depositions of defendants Saunders and Henry Brown, and of Jessie Lee Brown, as a witness. These depositions were taken on March 23, 1662. It is at this point that we reach the events giving rise to the question set out above. Jessie Lee Brown was deposed solely in the capacity of a witness. After procuring an appropriate order, plaintiff filed an amended complaint on May 17 in which he named as additional defendants Setzer's Warehouse, Inc., Food Fair Stores, and Jessie Lee Brown. As related above, these defendants were brought in by reason of their relationship with the truck operated by Jessie Lee Brown, which will be referred to as the grocery truck. On June 29, the new defendants propounded certain interrogatories to defendant, Henry Brown, driver of the pulpwood truck. On December 7, defendant Henry Brown was killed. Appellants moved on December 26, 1962 to suppress the deposition taken on March 23, 1962 on the following grounds:

1. Appellants were not parties to the cause when taken.

2. Appellants had no notice of the taking.

3. Appellants were afforded no opportunity to cross-examine the deponent Henry Brown.

4. The deposition was inadmissible under the rules of evidence against the appellants.

The trial court denied appellant's motion to suppress. During the trial of the cause defendant Saunders published salient portions of decedent Brown's deposition. Again, appellant's motion to suppress Brown's deposition was denied. The jury returned a verdict against appellants and in favor of plaintiff Tanner, and found Henry Brown's estate not guilty. This appeal was taken from judgment on the verdict.

Decedent Brown's deposition was taken pursuant to Florida Civil Procedure Rule 1.21, 30 F.S.A., which provides in part:

'(a) Any party may take the deposition of any person, including a party, by deposition upon oral examination or written interrogatiories for the purpose of discovery or for use as evidence in the action, or for both purposes. * * * ¹

* * *

* * *

'(d) At the trial * * * any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof * * *.'

Thus, a literal reading of the rule compared with the undisputed facts, reveals the absence of each prerequisite, insofar as same apply to appellants.

Surprisingly, this subject has not received extensive treatment by the modern authorities. In our extensive research we have located fragments of statements in opinions which generally sustain the position that a deposition taken in the absence of the opposing party is not admissible in that it violates the hearsay rule.

In his treatise on evidence Professor Wigmore concludes that the deposition would be excluded where the opposing party has not been afforded the opportunity of cross-examination and submits that the principle is precisely the same as for testimony obtained in any other manner and states: 'The mere speaking under oath is not sufficient; the essential condition is that the person against whom the sworn statement is offered should have had an opportunity to cross-examine the deponent.' ²

Justice Jones in his treatise on Evidence, Fifth Edition, states the rule as follows: ³

'Depositions are not to be rejected for the reason that, subsequent to their taking, the pleadings have been materially amended, if the issues remain substantially the same. But if new parties are joined, depositions which have been taken before their joinder may not be read against such new parties.'

This position is buttressed by the decision of Gottfried v. Gottfried, ⁴ in which Justice Walter stated:

'Where a witness (party or non-party) gives testimony upon a trial upon direct examination by one party, all other parties are entitled to cross-examine him, and that rule is so stringent that if for any reason cross-examination becomes impossible, his testimony on direct examination must be stricken out. People v. Cole, 43 N.Y. 508; Morley v. Castor, 63 App.Div. 38, 71 N.Y.S. 363; Gallagher v. Gallagher, 92 App.Div. 138, 87 N.Y.S. 343; Matter of Mezger's Estate, 154 Misc. 633, 278 N.Y.S. 669. When the examination of a party before trial is read upon a trial that party gives testimony upon the trial and the situation is exactly the same as if the party who took the examination had examined him in chief upon the trial, and I thus think the rule of the cases just cited requires that the party so examined be allowed to be cross-examined by his own counsel. In fact, the situation of an examination of an adverse party before trial calls even more loudly for application of the rule of those cases, because a party examining an adverse party before trial is accorded greater latitude than ordinarily is accorded to counsel examining a witness upon a trial, in that for the very reason that he is examining an adverse party he frequently is permitted to put leading questions, questions calling for conclusions, and questions which severely limit the scope of the answers. Cross-examination of a party examined before trial thus seems to me even more essential from the standpoint of justice than cross-examination of an ordinary witness; and that, as the cases just cited show, long has been and still is regarded as a right.'

In Smith v. Milwaukee Builders' & Traders' Exchange, ⁵ an 1895 case decided by the Supreme Court of Wisconsin, the deposition of a witness was taken prior to the time the defendants were made parties to the suit. Upon the argument of the case the attorney for the defendant was allowed against objection to read aloud part of the deposition to the jury. The court held that such could not be used against the Bayleys because they were not parties to the action when it was taken.

The Supreme Court of Iowa held in Brown v. Zachary, ⁶ a case decided in 1897, that depositions taken before one of the defendants was made a party to the suit was not admissible against him.

In Dalsheimer v. Morris, ⁷ a case decided in 1894, the Civil Court of Appeals of Texas held that a deposition cannot be used in evidence against one made a party to the action after it was taken without notice or an opportunity to cross-examine.

In Knowles v. Stargel, ⁸ the Supreme Court of Wisconsin in considering the same question as concerns us here held:

'* * * At the time it was offered the objection was made by the respondent insurance company that the examination had occurred without notice to it. The objection was properly sustained. Under the ordinary rules of evidence obtaining in this state, a deposition cannot be used on the trial against one who was not a party to the action when it was taken. * * *'

In Hendrix v. Hendrix, ⁹ the Supreme Court of Alabama was concerned with a similar question. There, the court stated that the decisive question was whether or not the depositions of the plaintiffs' witnesses taken before the institution of the suit can be used to sustain the decree. The court observed that with such depositions in evidence the decree was well sustained but otherwise the case was not proven. In reaching the conclusion that the depositions constituted illegal evidence, the Alabama Court stated:

'On the specific question now under consideration, it was ruled that the evidence is illegal where it is presented by a deposition taken before the defendant had been brought into court by service of process or in some other legal way 'and such an irregularity will not be cured by the subsequent voluntary appearance of the defendant.' Oxford Iron Co. v. Quinchett, 44 Ala. 487, 490.

'This seems to be the general rule, and as observed in 18 Corpus Juris 632, § 68: 'Generally depositions other than in perpetuam can be taken only in a pending action, or after the court has obtained jurisdiction of the defendant or the subject matter in some recognized legal mode.' See 26 C.J.S., Depositions, § 33. See also 16 Am.Jur., Depositions, p. 706, § 19; Couch v. State, 63 Ala. 163.'

Federal decisions upon the subject seem to follow the general rule as enunciated by the Alabama Court. Hoffler v. Wheeler ¹⁰ is the closest of the modern authorities that we can find in point. There, the complaint in a negligence action was filed on May 6, 1959, but service of process on defendant was not accomplish until October 30, 1959....