Osborn v. Massey-Ferguson, Inc.

• Decision Date: 23 April 1980
• Docket Number: INC,No. 61765,MASSEY-FERGUSO,61765
• Citation: 290 N.W.2d 893
• Parties: Everett OSBORN, Appellant, v., Appellee.
• Court: Iowa Supreme Court

Page 893

290 N.W.2d 893

Everett OSBORN, Appellant, v. MASSEY-FERGUSON, INC., Appellee.

No. 61765.

Supreme Court of Iowa.

April 23, 1980.

John Diehl, Ben Clayton and Roger D. Williams of Diehl, Clayton, Cleverly & Knopf, Newton, for appellant.

Richard G. Langdon of Herrick, Langdon & Langdon, Des Moines, and Herbert S. Selby of Selby, Updegraff & Smith, Newton, for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, REES, UHLENHOPP, and McGIVERIN, JJ.

McGIVERIN, Justice.

Plaintiff Everett Osborn appeals from the judgment entered following a directed jury verdict in favor of defendant Massey-Ferguson, Inc., in this negligence and products liability case arising from a grain combine accident. We reverse and remand for a new trial.

The following issues are presented for our review:

1. Whether defendant may object at trial to plaintiff's reading of certain portions of a deposition defendant took, when defendant did not object at the time the deposition was taken 2. Whether the court erred in sustaining defendant's objections to the testimony and opinions of plaintiff's causation expert, Dr. Donald Madsen; and

3. Whether a verdict was properly directed against plaintiff.

Plaintiff Everett Osborn purchased a used 1969 Massey-Ferguson combine model 410 in September 1970. The combine had been manufactured by defendant Massey-Ferguson, Inc. Plaintiff used the combine in 1970 and again in 1971. On the night of September 30, 1971, plaintiff was driving the combine on a country road while returning home after he had combined beans for approximately four and one-half hours. Osborn heard a "thumping" from beneath the floorboard of the cab, which is on the left side of the machine. The combine immediately veered to the left, went down a steep ditch, and turned over on its right side, damaging the machine and injuring plaintiff. Osborn had tried to steer the combine to the right, away from the ditch, but the machine would not steer. An investigation shortly after the accident by plaintiff's sons showed that the main drive belt was broken and the nearby hydraulic steering line was severed. The belt and line were located on the left side of the combine just below the cab. The physical damage was almost exclusively to the right side of the combine. The right rear wheel was broken off and was found underneath the combine at the bottom of the ditch. One or two of the J-bolts holding the right front dual wheel had broken off, with the other J-bolts remaining fastened at the top of that wheel. The tire on the right front drive wheel was flat.

Plaintiff's petition was in two divisions. In one division he asserted defendant had been negligent in its manufacture and design of the combine, causing the machine's steering mechanism to fail with resultant injuries to plaintiff. A second division contained a products liability claim, alleging that the design of the combine's hydraulic steering mechanism was defective.

Plaintiff's theory at trial was that while the combine was on the road, the main drive belt on his self-propelled combine broke and that belt severed the nearby hydraulic line, which is connected to the steering of the combine. This resulted in a loss of fluid in the hydraulic line, which in turn caused a failure of steering. Plaintiff, therefore, lost control over the steering and the combine veered to the left and down into the ditch.

Both divisions of his petition and his offered evidence were based on a claim of defective design by defendant in placing the main drive belt too close to the hydraulic line without adequate shielding to prevent severance of the line should the main drive belt break.

Plaintiff did not claim defective parts were involved and the drive belt and hydraulic line were not preserved or placed into evidence.

Prior to trial, defendant took the deposition of Dr. Norval J. Wardle, an expert who had been consulted by plaintiff and who was expected to testify for plaintiff at trial. Osborn attempted to have the deposition read into evidence in its entirety; however, defendant objected and various portions were not allowed into evidence by the trial court.

During trial, Dr. Donald Madsen an expert witness for plaintiff testified. The trial court sustained defendant's objections to many of Dr. Madsen's expert opinions and, accordingly, the doctor was not allowed to give his opinion as to the cause of the accident.

At the close of plaintiff's evidence, the court directed a verdict in favor of defendant on the basis that there had been no showing that plaintiff's theory was as probable or more probable than any other theory of what happened.

Other facts will be stated later as necessary for an understanding of the issues raised for review.

I. Objection at trial to the reading of certain portions of a deposition not objected to at the time of the taking of the deposition. Defendant took the deposition of Dr. Norval J. Wardle in 1973 after suit was filed. When the deposition was taken, the parties stipulated that the deposition "may be used at trial." Only defendant questioned Dr. Wardle. Plaintiff did not ask any questions.

Dr. Wardle did not testify at trial in 1978. He was then living in Logan, Utah. Iowa R.Civ.P. 144(c). Plaintiff sought to introduce into evidence at trial the entire deposition in question-and-answer form. Defendant objected to the use of any portion of the deposition by plaintiff.

The court made a general ruling, subject to the parties making their record as to specific questions and answers. The court stated that it believed it was bound by Iowa R.Civ.P. 144 in that it could not exclude the whole deposition. However, the court did sustain defendant's objections to twelve questions and answers and excluded opinions and conclusions by the deposed witness, which were bottomed on matters contained in certain letters that were not in evidence, because such opinions were without proper foundation and based on hearsay.

Most of the deposition was ultimately read into evidence; however, significant portions were excluded by the court as a result of defendant's objections. Plaintiff assigns this ruling as error.

The parties make several arguments bearing on the correctness of the court's ruling. We mention only some of them.

A. Defendant asserts that Dr. Wardle's deposition was intended only for discovery, and therefore not admissible at trial. We are unable to agree. There is no basis in law (Iowa Rules of Civil Procedure) or fact to support such a proposition. The Iowa Rules of Civil Procedure make no distinction between discovery depositions and depositions to be used at trial. Iowa R.Civ.P. 140-58. We are not concerned here with a deposition to perpetuate testimony under Iowa R.Civ.P. 159-66.

The Court properly allowed the deposition into evidence under the authority of Iowa R.Civ.P. 144(c). ¹

We believe "that one party may introduce a deposition which was taken by his adversary, but which (the adversary) declines to introduce." Citizens' Bank v. Rhutasel, 67 Iowa 316, 319, 25 N.W. 261, 262 (1885); Justis v. Union Mutual Casualty Company, 219 Iowa 213, 215, 257 N.W. 581, 582 (1934); Brown v. Byam, 65 Iowa 374, 380-81, 21 N.W. 684, 688 (1884) (although the cases cited for this proposition were decided prior to the adoption of the deposition rules in Iowa, we believe the proposition equally applies to the present Iowa Rules of Civil Procedure). See also 3 B. Jones, Evidence § 18:30, at 509 (6th ed. 1972).

Having concluded plaintiff could use the Wardle deposition at trial under rule 144(c), we turn to other assertions made.

B. Plaintiff contends the use of the Wardle deposition and defendant's objections at trial to the deposition questions and answers were subject to the provisions of Iowa R.Civ.P. 158(d) and (e). Those rules state:

(d) Taking Deposition. Errors or irregularities occurring during an oral deposition as to any conduct or manner of taking it, or the oath, or the form of any question or answer; and any other errors which might thereupon have been cured, obviated or removed, are waived unless seasonably objected to when it is taken.

(e) Testimony. Except as above provided, testimony taken by deposition may be objected to at the trial on any ground which would require its exclusion if given by a witness in open court, and objections to testimony, or competency of a witness, need not be made prior to or during the deposition, unless the grounds thereof could then have been obviated or removed.

Specifically plaintiff claims that the plain language of rules 158(d) and (e) precluded defendant from objecting at trial to the Wardle testimony because the grounds of the sustained objections could easily have been "obviated or removed" at the time of the deposition. Plaintiff also says that if defendant had moved to strike Dr. Wardle's opinions and conclusions at the deposition on the grounds defendant asserted at trial, the two report letters could then have been marked as exhibits, a hypothetical question could have been framed, and a foundation could thus have been established for Wardle's opinions and conclusions.

Plaintiff cites and relies on federal cases decided pursuant to the Federal Rule of Civil Procedure 32 after which he says Iowa R.Civ.P. 158 is patterned.

Defendant replies that under plaintiff's theory a party would be required to object to his own questions at a deposition or else not be allowed to object when such questions and answers are offered against him at trial; and no one should be required to object at the deposition to his own questions.

We agree with defendant based on the following reasons and authorities. Iowa R.Civ.P. 145(b) states that "(a) party does not make deponent his own witness by taking his deposition . . .." Therefore, defendant did not make Wardle defendant's witness by procuring his deposition. The examiner asking a deposition question has no right to object to his own question because "(t)he initiative in...