McKelvy v. Darnell

• Decision Date: 13 September 1991
• Citation: 587 So.2d 980
• Parties: Kermit C. McKELVY v. Arthur Bailey DARNELL. 1900273.
• Court: Alabama Supreme Court

Page 980

587 So.2d 980

Kermit C. McKELVY v. Arthur Bailey DARNELL.

1900273.

Supreme Court of Alabama.

Sept. 13, 1991.

Brent M. Craig and Harry Montgomery, Moulton, and Billy C. Burney, Decatur, for appellant.

J. Flynn Tubb of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee.

MADDOX, Justice.

This appeal involves two issues: (1) Whether a party, by failing to object to a question asked of a witness during a deposition, can nevertheless object to the question when the deposition is being read into evidence at the trial, and (2) whether the trial judge erred in permitting a state trooper to testify as an expert witness and give his opinion as to the speed of a motor vehicle involved in an accident.

The plaintiff, Kermit McKelvy, sued the defendant, Arthur Bailey Darnell, claiming damages for injuries he allegedly suffered in an automobile accident that occurred on Highway 33 in Lawrence County. The testimony of the parties was conflicting. McKelvy, a 79-year-old man, testified that he was traveling south on Highway 33 from Courtland to Moulton and that as he approached an engine shop beside the highway he reduced his speed to about 45 miles per hour. McKelvy claimed that Darnell, who was traveling north, made a left turn in front of him without giving any signal. Darnell claimed that the accident happened when he was turning into a store parking lot. He claimed that he slowed down, looked left into the parking lot, looked straight to the road in front of him, and turned on his left-turn signal, and that when he was about half-way in his turn he saw McKelvy's vehicle three or four car lengths away. The right front fender of McKelvy's vehicle struck the back fenderwall of Darnell's truck.

A state trooper who investigated the accident estimated that McKelvy was driving 60 miles per hour at the time of impact.

McKelvy testified that he suffered severe injuries as a result of the accident. He acknowledged that he had been in prior accidents, in which he had suffered chest, back, and neck injuries. The accident occurred on December 16, 1988. The most recent accident prior to this one had occurred in 1981.

The trial was before a jury, which returned a general verdict in favor of the defendant, Darnell.

Waiver of Right to Object to Evidence

The first issue we discuss is whether, during the reading of deposition testimony of the plaintiff's treating physician, Darnell could object to certain questions asked, although he had not objected to those questions while the deposition was being taken.

The plaintiff, McKelvy, had taken a deposition of his treating physician, Dr. Willard Irwin, and wanted to introduce it into evidence at the trial. At the time the deposition was taken, McKelvy and Darnell had entered into a stipulation that provided, in part, "that it shall not be necessary for any objections to be made by counsel to any questions, except as to form of leading questions, and that counsel for the parties may make objections and assign grounds at the time of trial, or at the time said deposition is offered in evidence, or prior thereto." (Emphasis added.) ¹

During the trial, McKelvy offered the deposition testimony of Dr. Irwin; Darnell's counsel objected to the following questions, on the basic ground that Dr. Irwin did not base his opinion testimony upon "a reasonable degree of medical certainty":

"Again, do you think on this occasion that this condition was still being aggravated or incited still [sic] due to the wreck?"

______

"Do you have an opinion that [sic] would have caused those [muscle spasms], if anything?"

______

"Can you in any way relate this condition, or the condition you observed at that time, to the automobile accident that occurred back in December or can you in any way relate these physical conditions to that?"

The trial court sustained Darnell's objections to these questions, thereby excluding the doctor's answers, which would have been beneficial to McKelvy's case. McKelvy claims that the trial court erred in doing so, and argues that any objection Darnell had to the questions should have been made when the deposition was taken and that his failure to object at that time constituted a waiver of any objection.

Darnell argues, on the other hand, that the questions go far beyond mere form or technicality and go "to the very heart of [the] plaintiff's case--causation," and that he had not waived his right to object to the questions.

We agree with McKelvy that Darnell waived his right to object to the three questions by failing to object at the time the deposition was taken. Essentially, Darnell's objection was that McKelvy had not laid a proper predicate, a matter that could have been corrected if objection had been made at the deposition hearing. We agree with McKelvy that the questions were proper and that the trial judge should not have excluded the testimony, as we shall point out below.

There Was A Waiver of Right to Object at Trial

The record shows that the parties had stipulated that objections other than objections as "to form of [sic] leading questions" could be made at trial; such stipulations made during depositions are binding agreements and will be given full force and effect by this Court. C. Gamble, McElroy's Alabama Evidence § 426.01(4) (4th ed.1991) (citing National Union Fire Ins. Co. v. Weatherwax & Gentry, 247 Ala. 143, 22 So.2d 733 (1945)). This stipulation effectively incorporated the provisions of Rule 32(b), Ala.R.Civ.P., which provides:

"(b) Objections to Admissibility. Subject to the provisions of subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying."

Rule 32(d)(3)(B) provides:

"Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition."

Although we have been unable to find substantial Alabama authority discussing this Rule as it has been applied in the context presented on this appeal, we have determined that the general rule is "that an objection, although not made at the deposition examination, may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present or testifying." 4A J. Moore, Moore's Federal Practice, p 32.09 (2d ed. 1990), 32-44. Objections based on grounds that might have been obviated or removed if presented at the deposition examination, e.g., that the questions are leading, are waived unless the objections are made at that time. Id.

Dean Gamble, in his treatise, McElroy's Alabama Evidence, summarizes the provisions of Rule 32(b) as follows:

"These provisions, taken together, result in the following rules. First, a party may object to matter in a deposition introduced at trial even though he did not object at the taking of the deposition. This is only true, however, if the objection is to a matter of substance and, had an objection been lodged at the taking of the deposition, the objectionableness could not have been cured."

McElroy's Alabama Evidence § 426.01(4) (4th ed. 1991).

The reasons Darnell gave for objecting to the deposition questions were based on his claim that McKelvy had not laid a proper foundation for the questions. This problem could have been obviated at the time the deposition was taken; therefore, Darnell should have objected at that time. See Nutterville v. McLam, 84 Idaho 36, 367 P.2d 576 (1961). The rule requires that, if a timely objection would enable the questioner to remedy the problem so that the same testimony could be received in accordance with law, the objection must be made at the time the deposition is taken. See Jordan v. Medley, 711 F.2d 211 (D.C.Cir.1983). Failure to object at that time waives the party's right to object. Therefore, Darnell was not entitled to object to the testimony for the first time at trial.

Although the questions were perhaps not in the best form, they were proper questions, and the trial court erred in sustaining Darnell's objection to them.

Darnell argues that even if the trial court erred, the error was harmless. Rule 45, A.R.App.P.

The record does show that at another point in his deposition testimony, Dr. Irwin stated that, in his opinion, the pains and spasms McKelvy suffered in his neck, back, chest, and knee were "due to the car wreck." Dr. Irwin testified:

"Q. To rephrase that question, Dr. [Irwin], what was this treatment administered--what condition was it administered to treat?

"A. The spasm and pain in this neck, spasm of the muscles and pain in his neck, back, and in the back of his chest and knee.

"Q. Do you have an opinion what would have caused those, if anything?

"A. Yeah, I think it was due to the car wreck."

This testimony was read to the jury, without objection.

Darnell also claims that a general reading of the record also indicates that there was a dispute as to whether the accident was the proximate cause of McKelvy's injuries. Darnell claimed that he was properly turning into a store parking lot, and there was testimony by an investigating state trooper that the McKelvy vehicle was traveling at 60 miles per hour at the time of impact. Darnell states that the jury returned a general verdict in his favor and, because of this and based on the facts in the record, that this Court should apply the principle of law stated in Perry v. Seaboard Coastline R.R., 527 So.2d 696 (Ala.1988). ² In Perry, the Court held that "[b]ecause the jury returned a general verdict in favor of the defendant, and it was undisputed...