Kawietzke v. Rarich
| Decision Date | 25 October 1961 |
| Docket Number | Civ. A. No. 23009. |
| Citation | 198 F. Supp. 841 |
| Parties | Nicholas KAWIETZKE and Valerie R. Kawietzke, Plaintiffs, v. William RARICH, Defendant, v. Nicholas KAWIETZKE, Third-Party Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Elias Magil, Folz, Bard, Kamsler, Goodis & Greenfield, Philadelphia, Pa., for plaintiffs.
Albert C. Gekoski, Philadelphia, Pa., for defendant.
Francis E. Marshall, Philadelphia, Pa., for third-party defendant.
This suit arose out of a collision between two automobiles which had been proceeding in opposite directions. Each driver contended that his automobile was on the right side of the highway when the accident occurred and that the other automobile was at least partly on the wrong side. At a jury trial a verdict was rendered in favor of the defendant. Plaintiff has filed a motion for a new trial.
One of the plaintiffs, Valerie Kawietzke, was the wife of plaintiff, Nicholas Kawietzke, who was the driver of one of the automobiles. The evidence was uncontradicted that she was a passenger in her husband's car at the time of the accident and that she received some injury. There was no evidence that she was guilty of contributory negligence. Plaintiffs' counsel presented a point for charge as follows:
The trial judge affirmed this point for charge after having changed the last part of it from "* * * you will find a verdict for Plaintiff Valerie Kawietzke" to "* * * you may find a verdict in favor of Plaintiff Valerie Kawietzke." This change from "you will" to "you may", counsel contends, was a mistake for which a new trial should be granted.
This is a diversity case. The accident occurred in Pennsylvania. Consequently Pennsylvania law applies. Plaintiffs' case was based upon oral testimony. The Pennsylvania rule is that oral testimony, even though it may be uncontradicted is for the jury. Exner v. Safeco Insurance Co., 1961, 402 Pa. 473, 474, 167 A.2d 703. It would have been a mistake under the circumstances to have granted counsel's request, which in effect was to give binding instructions in favor of plaintiff Valerie Kawietzke. Read as a whole, the trial judge's charge fairly and properly presented the question of negligence to the jury.
Another aspect of the case requires comment. Defendants' counsel notified plaintiffs' counsel of the proposed taking of a deposition of a physician in Scranton at a certain time and place. At the time and place stated in the notice defendants' counsel was present but plaintiffs' counsel was not. After waiting over an hour, the taking of the deposition proceeded without plaintiffs' counsel being present. At the trial the plaintiffs objected to the use of the deposition because plaintiffs' counsel was not present at the...
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Scholes v. African Enterprise, Inc.
...32(d)(4)." (AE Reply Mem., at 3 (citing Brown v. ASD Computing Center, 519 F.Supp. 1096, 1098 (S.D.Ohio 1981), and Kawietzke v. Rarich, 198 F.Supp. 841, 842-43 (E.D.Penn.1961))) Scholes further responds that the court reporter certified the deposition transcript in compliance with Rule 30(f......
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Brown v. ASD Computing Center
...by any party, the Court finds that any and all errors, including signature or failure to sign, have been waived. Kawietzke v. Rarich, 198 F.Supp. 841 (E.D.Pa.1961). With respect to Marvinell Brown's deposition, that document is also unsigned, but is accompanied by a certificate from the off......
- Goldberg v. Martin, Civ. A. No. 1068.
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Fite, In re
...should appear on the record of the deposition or be supplied by appropriate proof filed with the deposition.' See also, Kawietzke v. Rarich, D.C., 198 F.Supp. 841, and Smith v. Insurance Company of North America, D.C., 30 F.R.D. The Supreme Court of Missouri, in applying a Missouri rule, wh......