Fishman v. Liberty Associates, Inc.
| Decision Date | 14 March 1967 |
| Docket Number | No. 66--439,66--439 |
| Citation | 196 So.2d 493 |
| Parties | William H. FISHMAN, Appellant, v. LIBERTY ASSOCIATES, INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Hylan H. Kout, Miami Beach, for appellant.
Smathers & Thompson and Earl D. Waldin, Jr., Miami, for appellee.
Before CARROLL, BARKDULL and SWANN, JJ.
The appellant William H. Fishman filed an action against the appellee Liberty Associates, Inc. and another defendant, H. B. Meiselman, seeking to recover a real estate commission. The case was tried before a jury. Two verdicts were rendered. One was in favor of the defendant Meiselman, and the other was a verdict in favor of the plaintiff against the defendant Liberty Associates, Inc., for $16,250, and judgment was entered thereon. The latter defendant filed a motion for new trial which included a ground 'that the court erred in permitting the plaintiff, over the objection of the defendant, to read into evidence a deposition of Peter K. Moser taken on December 28, 1965.' The motion for new trial was granted, and the plaintiff appealed.
The ground on which the court granted a new trial was stated in the order as follows:
'At the trial of this cause the Court committed harmful and prejudicial error in permitting the plaintiff to use the deposition of Peter K. Moser and to read into evidence the testimony of Peter K. Moser, from his deposition, without requiring the plaintiff to meet the duty imposed on him by Rule 1.21(d)(3), Florida Rules of Civil Procedure (30 F.S.A.); Driscoll v. Morris, Fla.App.1959, 114 So.2d 314; Weber v. Berry, Fla.App.1961, 133 So.2d 327; Owca v. Zemzicki, Fla.App.1962, 137 So.2d 876; Dickson v. Feiners Organization, Fla.App.1963, 155 So.2d 703.'
The deposition of the witness Moser, who was not a party to the case, had been taken on notice by the defendant, for discovery and for use at trial, and it was conceded the testimony of that witness was material to the plaintiff's case.
Under rule 1.21(d)(3) F.R.C.P. the deposition of a witness may be used at trial if the court finds any of the circumstances set out in the rule exists, including the circumstance 'that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition.'
When the plaintiff's attorney presented the deposition of the witness Moser at the trial, the attorney for the defendant objected on the ground that the witness had been subpoenaed and 'there is no showing at this time that the witness is not available.' The plaintiff's attorney then explained to the court that the witness had been subpoenaed to appear for the trial as set for the preceding day, a Wednesday; that he had told the witness to stand by, but that when trial was not commenced that day the witness had informed him that he was leaving for Philadelphia the next morning. (The trial started Thursday and the deposition was offered in the afternoon.) The only further objection by the defendant's attorney was to the plaintiff reading into evidence part of the deposition without presenting the entire deposition.
No objection or contention was made on behalf of defendant that the showing as to the absence of the witness was insufficient under the rule to entitle the deposition to be used, or because the showing of the witness' absence was made through a statement by the plaintiff's attorney without his having been sworn as a witness.
The trial judge accepted the showing of absence of the witness as sufficient, admitted the deposition and required that it all be read. In so ruling the trial judge stated that use of the deposition was being permitted on the statement of plaintiff's attorney that the witness was in Philadelphia, adding that if he found out the witness was not so absent he would do something about it. 1
On reading the ground stated in the order granting new trial it does not appear whether the trial judge concluded on hearing the motion for new trial that the showing made at trial as to the absence of the witness was insufficient, or concluded that the showing of absence, although otherwise sufficient, should not have been accepted because made by the plaintiff's attorney without his having been sworn as a witness. In either circumstance, we hold that the conclusion reached by the able trial judge was incorrect.
The decisions cited in the court's order have been examined, and we do not find in them any reason to hold that the showing made that the witness was absent and more than one hundred miles distance from the place of trial, should be considered insufficient to entitle the deposition to use under the rule.
In the cases cited by the trial court in the order granting new trial it is held that a deposition of a witness offered without evidence presented to establish a circumstance stated in the rule which would permit its use will prompt rejection of the deposition. Driscoll v. Morris, Fla.App.1959, 114 So.2d 314; Owca v. Zemzicki, Fla.App.1962, 137 So.2d 876. And the cited cases hold that the party offering a deposition is under a duty to show that it meets the requirements of the rule to entitle it to use. See Owca v. Zemzicki, supra, and Weber v. Berry, Fla.App.1961, 133 So.2d 327, it being stated in the latter case that the party offering such a deposition is under a duty to adduce testimony to show a right to use the deposition. In the remaining case cited in the order, Dickson v. Feiner's Organization, Inc., Fla.App.1963, 155 So.2d 703, 704, it was stated that admissibility of a deposition requires that 2
The showing made in this case, that the witness had departed and was in Philadelphia when the deposition was offered, was adequate to establish the usability...
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...to testify. The record contains a sufficient showing that Brown was unavailable to testify at trial. See Fishman v. Liberty Associates, Inc., 196 So.2d 493, 497 (Fla. 3d DCA 1967), cert. discharged, 205 So.2d 657 (Fla.1968). However, the trial court should not have allowed the use of the vi......
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