Flannery v. The Central Brewing Co.

• Decision Date: 14 November 1904
• Citation: Flannery v. Cent. Brewing Co., 59 A. 157, 70 N.J.L. 715 (N.J. 1904)
• Court: New Jersey Supreme Court
• Parties: JOHN B. FLANNERY, DEFENDANT IN ERROR, v. THE CENTRAL BREWING COMPANY, IMPLEADED, &c., PLAINTIFF IN ERROR

59 A. 157

70 N.J.L. 715

FLANNERY

v. CENTRAL BREWING CO. et al.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1904.

(Syllabus by the Court.)

Error to Supreme Court.

Action by John B. Flannery against the Central Brewing Company and others.Judgment for plaintiff, and defendant brewing company brings error.Affirmed.

Leon Abbett and Lindley M. Garrison, for plaintiff in error.

Warren Dixon, for defendant in error.

FORT, J.There is but a single question in this case requiring consideration.The record in the case shows that the deposition of John B. Flannery, the plaintiff, was taken at his home, before the trial, "pursuant to an agreement made in open court between Warren Dixon, attorney of the plaintiff, and Leon Abbett, attorney of the defendant the Central Brewing Company, and William D. Edwards, attorney of the defendant the Jersey City, Hoboken & Patterson Street Railway Company."At the time of the taking of the deposition the attorney of the defendant the Central Brewing Company was present, and cross-examined the witness.

At the trial, and immediately after opening the case, the plaintiff's attorney, to maintain the issue on his part, offered in evidence the deposition of John B. Flannery, as taken at his home on September 18, 1903.There was no objection made to this offer, and the same was admitted in evidence.

On the second day of the trial, when Dr. William F. Payson was upon the stand, there appears in parenthesis, in the record of the stenographic notes of the evidence sent up, the following paragraph:

"(The plaintiff is brought in in a chair, carried by men, and is placed in front of the jury, his clothing is opened in front, exposing his abdomen.)"How long the plaintiff remained, or what became of him, the record does not disclose.The brief of one of the counsel does state, but we cannot accept that as proof.Nor does it appear that any testimony was given in the cause by the physicians by referring to the plaintiff as an exhibit to explain his case or their evidence.

The next incident in relation to the plaintiff's having appeared in court occurs after the plaintiff rested.At this point the record is as follows:

"Mr. Speer: On behalf of the Jersey City, Hoboken & Paterson Street Railway Company, I move for a nonsuit on the ground that no negligence has been shown against this defendant.

"Mr. Garrison: I move to strike out the testimony of the plaintiff on the ground that the plaintiff, having attended in court, cannot have the benefit of the testimony given by him in the deposition.

"The Court: I will grant Mr. Speer's motion.I deny Mr. Garrison's motion.

"Mr. Garrison, on behalf of the Brewing Company, prays an exception, and said exception is allowed and signed and sealed accordingly.Jonathan Dixon,

"Justice Supreme Court."

Sections 35and57 of "An act concerning evidence"(Revision of 1900), approved March 23, 1900, are the only sections authorizing the taking de bene esse of the testimony of any party to an action.P. L. 1900, p. 362.The testimony of the plaintiff in this case was evidently not taken under section 35, as there was no order of the court for the examination of the plaintiff.Section 57 provided "that it shall be lawful for attorneys or solicitors of record in any civil action, to stipulate in writing to take, de bene esse, without order of the court in which such action is pending, the testimony of any party to such action or of any witness therein, whether such party or witness shall reside or be within or without this state."The statute then proceeds to declare what the written stipulation shall contain, and, after giving the particulars thereof, concludes as follows: "Either party may file the transcript of said testimony with the clerk of the court in which such action is pending and thereupon either party may use the testimony so taken, on the trial of said action in the same manner, and with the same force and effect as if said testimony had been taken under a commission duly issued by the court on application therefor made as hereinbefore provided to take de bene esse the testimony of such party or witness."

It is quite apparent from the record that the testimony of the plaintiff was irregularly taken, even under section 57.But irregularity in the taking of a deposition under the statute will not defeat the introduction of the testimony in evidence.Section 52 of the evidence act provides that the same "shall not he excluded for any irregularity or informality in taking or returning the same, if the court in which the same is offered shall be satisfied that the testimony of the witness has been fairly and truly taken and returned; and if such deposition or examination shall be admitted in evidence by the court, no exception shall be taken to the admission thereof, on the ground of any irregularity or informality in taking or returning the same."This citation from the statute will show that the motion to strike out the deposition in this case cannot prevail because of any irregularity or informality in the taking...