Feldstein v. Harrington

• Decision Date: 03 June 1958
• Citation: Feldstein v. Harrington, 4 Wis.2d 380, 90 N.W.2d 566 (Wis. 1958)
• Parties: Jacob FELDSTEIN, Appellant, v. Francis C. HARRINGTON et al., Respondents.
• Court: Wisconsin Supreme Court

Page 566

90 N.W.2d 566

4 Wis.2d 380

Jacob FELDSTEIN, Appellant, v.Francis C. HARRINGTON et al., Respondents.

Supreme Court of Wisconsin.

June 3, 1958.

Reino A. Perala, Superior, Friedman & Friedman, Duluth, Minn., for appellant.

Hughes, Anderson & Davis, Superior, for respondents.

CURRIE, Justice.

Inasmuch as we have reached the conclusion that a new trial is required because of erroneous rulings on admissibility of evidence, we find it unnecessary to discuss plaintiff's contentions with respect to the inadequacy of the damages awarded.Most of plaintiff's injuries were subjective in character and their establishment therefore largely depended upon plaintiff's credibility as a witness.Such testimony was sufficiently improbable as to warrant the jury in disbelieving the same.We would not disturb the jury's finding as to damages if that were the sole issue before us on this appeal.

The ruling of the trial court most strenuously attacked by counsel for the plaintiff is that of admitting into evidence portions of the depositions of Doctors Eisenberg and Fox.These depositions were taken at the instance of the plaintiff in another action instituted against different defendants than those in this action, to recover damages for injuries received in another automobile accident which had occurred in 1950.This other action was settled without trial but the depositions were on file in the office of the clerk of court as part of the record in such prior action.In the instant action the plaintiff, in an adverse examination had of him before trial, had minimized the injuries received by him in such 1950 accident.The defendants offered portions of the depositions of these two doctors for the purpose of impeaching this testimony of the plaintiff, and the trial court admitted the same over objection for such purpose.

We have two statutes that may have pertinence to the question under consideration.These are secs. 325.31¹and326.17.²We are unable to ascertain from the record before us whether at the time of trial either of the two deponents was deceased or absent from the state.While sec. 326.17 specifies both identity of parties, or their legal representatives, as well as identity of issue, as a condition for admitting depositions taken in a different action, sec. 325.31 only requires identity of issue.The parties to the instant action are different than those in the prior action in which the depositions were taken.However, we are constrained to hold that sec. 326.17 is not exhaustive of the conditions under which a deposition taken in one action may be used in another action in a situation in which sec. 325.31 is inapplicable.

5 Wigmore, Evidence (3d ed.), p. 181, sec. 1411, states that the power to take depositions rests entirely upon statute because such power did not exist at common law, but that the conditions under which they may be used depend upon the general rules of evidence.Even when there are statutes which enumerate the conditions under which depositions may be used, Wigmore holds that these should not be deemed to be exclusive.On this point we quote from such author as follows (ibid.):

'* * * It would therefore be an error to treat the statutory enumerations as exhaustive; they can seldom be construed as other than declaratory of rules already recognized.'

4 Jones, Commentaries on Evidence(2d ed.), p. 3751, sec. 2025, states:

'The use of depositions is not necessarily limited to the action in which they are taken.At common law it is generally deemed sufficient for the admissibility of depositions taken in one suit and offered in another that the matters in issue are the same in both cases and that the party against whom the deposition was offered had full power to cross-examine the witness.Complete mutuality or identity of all of the parties is not required.'

In the recent case of Rivera v. American Export Lines, D.C.N.Y.1952, 13 F.R.D. 27, a seaman brought an action against two steamship companies to recover for personal injuries sustained in a collision between two ships.The question arose as to right of the plaintiff and one of the defendants to make use of depositions taken in a separate admiralty action instituted by one defendant against the other to which the plaintiff was not a party.The defendant against whom it was sought to use such depositions objected on the ground that there was no identity of parties.The issue of liability for the collision was identical in both actions and the objecting defendant had been notified of the taking of the depositions and afforded an opportunity to cross-examine the witnesses.The court pointed out that there are two theories on the use of depositions in an action other than the one in which the depositions were taken.One, the 'so-called liberal theory', holds that if there is identity of issue it is unnecessary to also require identity of parties, while the other requires identity of both.The court adopted the liberal theory and held the depositions admissible.Sub. (d) of Rule 26,Fed.Rules Civ.Proc.,28 U.S.C.A., permits the use of a deposition 'so far as admissible under the rules of evidence.'

Another federal case which has applied this liberal rule of admissibility of depositions where there is not identity of parties is Insul-Wool Insulation Corp. v. Home Insulation, Inc., 10 Cir., 1949, 176 F.2d 502.For a commentary on Rivera v. American Export Lines, supra, see 5 Stanford Law Review 535.

Wigmore strongly favors the liberal theory that identity of parties is unnecessary where there is identity of issue.We quote this author's reasoning for such view as follows:³

'* * * Thus, the requirement of identity of parties is after all only an incident or corollary of the requirement as to identity of issue.

'It ought then, to be sufficient to inquire whether the former testimony was given upon such an issue that the party-opponent in that case had the same interest and motive in his cross-examination that the present opponent has; and the determination of this ought to be left entirely to the trial judge.'

The depositions of Doctors Fox and Eisenberg in the former action were taken at the instance of the plaintiff.Therefore, he did not enjoy the privilege of cross-examination of such witnesses but rather that of direct examination.However, this court in Roberts v. Gerber, 1925, 187 Wis. 282, 290, 202 N.W. 701, held that direct examination is the equivalent of cross-examination for the purpose of admitting depositions taken in a prior action under sec. 325.31.

In Maxcy v. Peavey Publishing Co., 1922, 178 Wis. 401, 406, 190 N.W. 84, 86, it was stated that depositions in former actions were only admissible 'where the parties are identical and the issues are the same.'As authority for such holding, 22 Corp.Jur., 427-437 was cited.Thus the court granted such holding on principles of common law rather than a determination that sec. 326.17, then sec. 4093, is exhaustive of the conditions under which such depositions are admissible.We are convinced that the liberal rule applied in cases such as Rivera v. American Export Lines, supra, andInsul-Wool Insulation Corp. v. Home Insulation, Inc., supra, is the sounder rule, and, that if there is an identity of issue it is not necessary to have identity of parties.Because the question of the admissibility of these depositions may again arise on the retrial of this case, we adopt such liberal rule.

However, even under such liberal rule it constituted error to admit portions of the depositions of Doctors Fox and Eisenberg in evidence under the circumstances of this case.This is because no showing was made by the defendants as to the unavailability of such two doctors to testify in the instant action.Where depositions taken in a prior action are offered in a subsequent action as substantive testimony, such unavailability must be established as a condition to admitting the same, or any part thereof.5 Wigmore, Evidence (3d ed.), p. 108, sec. 1389(3)(a), and p. 196, sec. 1416(3);andsec. 326.13, Stats.

Although the stated purpose in offering the extracts from these two depositions was in order to impeach testimony of the plaintiff, these extracts did not qualify as impeaching evidence.The actual use made of the depositions was to tend to show that certain facts testified to by plaintiff were untrue.The version of such disputed facts testified to by these two physicians, as was set forth in their depositions, thus constituted substantive evidence.We consider the erroneous admission of portions of these depositions, without first establishing the unavailability of the witnesses, to have been prejudicial to the plaintiff in that it may well have had a material bearing on the jury's determination of the amount of plaintiff's damages.

The second ruling on evidence attacked by the plaintiff was the refusal of the trial court to permit the plaintiff to testify that he had been examined at the request of the defendants by Dr. Houkom of the Duluth Clinic.The defendants did not call Dr. Houkom as a witness.The trial court also refused to permit plaintiff's counsel, in his argument to the jury, to comment upon such failure of the defendants to call this doctor as a witness.

The general rule is that the failure of a party to call a material witness within his control, or whom it would be more natural for such party to call than the opposing party, raises an inference against such party.2 Conrad, Modern Trial Evidence, p. 169, sec. 960, and2 Wigmore, Evidence (3d ed.), p. 162 et seq., secs. 285, 286.This rule was recognized in Booth v. Frankenstein, 1932, 209 Wis. 362, 370, 245 N.W. 191, but there held not to be applicable.This was because the two persons not called as witnesses in that case were equally available to both parties and there was no more reason why one side should have failed to call them than the other.Such...