Owca v. Zemzicki, 2101
| Decision Date | 07 February 1962 |
| Docket Number | No. 2101,2101 |
| Citation | 137 So.2d 876 |
| Parties | Luella Maxine OWCA and Leo W. Owca, Appellants, v. Sigmund S. ZEMZICKI and Betty B. Zemzicki, Appellees. |
| Court | Florida District Court of Appeals |
Patrick H. Dickinson of Dart, Bell & Savary, Sarasota, for appellants.
Richard E. Nelson of Butler & Nelson, Sarasota, for appellees.
A highway collision involving an automobile driven by plaintiff Betty B. Zemzicki and one owned by defendant Leo W. Owca and driven by his wife, also a defendant, was alleged to have occasioned the injuries to the plaintiffs for which damages were sought below in a personal injury action. The final judgment appealed was predicated upon jury verdicts for the respective plaintiffs in the amounts of $30,000 for the wife and $5,000 for the husband. Defendants' motions for new trial and remittitur were denied.
Defendants, as a step in the litigation, determined that it was necessary to take the deposition of plaintiffs' family physician, who had examined plaintiff Betty B. Zemzicki shortly after the accident. In due course, a 'Notice of Taking Deposition' was filed stating that the deposition would be taken, '* * * by oral examination for the purpose of discovery or evidence in the case, or both, under the 1954 Florida Rules of Civil Procedure.' Plaintiffs made no objection. The deposition was taken in accordance with the notice; and later, during the trial by jury upon the issues of liability and damages, defendants proffered it for introduction into evidence, asserting that this was being done pursuant to section 90.23, Florida Statutes, F.S.A. That section in effect provides for the taking of testimony of any expert or skilled witness, with the provision that under certain circumstances, such deposition may be used in evidence, in lieu of the testimony of the witness from the stand 1. Upon objection interposed by plaintiffs, the court ruled the deposition inadmissible. The family physician deposing did not testify, nor did he appear in court during trial. Claiming error on the part of the trial judge through his refusal to admit into evidence the deposition, defendants argue that had it been presented to the jury, it would have had a significant effect upon the deliberations.
Section 90.23, Florida Statutes, F.S.A., was designed to supply an expeditious and economical means by which the costs attendant upon the use of expert or skilled witnesses might be reduced and the time of such witnesses conserved. It is a separate and optional method not embraced within the scope of the provisions contained within the 1954 Florida Rules of Civil Procedure relating to the taking of depositions. It is specified that nothing contained in the section shall prevent the taking of any deposition as is otherwise provided by law.
Rule 1.21, 30 F.S.A., entitled 'Depositions Pending Action', precribes the manner in which respective counsel may seek to discover pertinent information pending litigation, and delineates certain situations under which depositions of parties taken via the rule might be admitted into evidence. In their notice for taking the deposition, defendants stated that it was for the purpose of discovery or evidence in the case or both under the 1954 Florida Rules of Civil Procedure. By Rule 1.21(d)(3), 2 opposing counsel is under no obligation to object to the deposition until it is actually proffered, since the party deposition of a witness to be used instead demonstrating that the situation falls within the confines of the circumstances set forth in the rule allowing a deposition of a winess to be used instead of the witness's presence and testimony at trial.
As footnoted, the statute, on the other hand, provides that upon proper objection made by opposing counsel pursuant to due notice the court may disallow the taking of the deposition and require personal appearance of the witness if this is deemed necessary to insure a fair and impartial trial. This is qualified by the provision in the statute that if objection is not made to the court prior to the taking of the deposition, it may be used in evidence if it is otherwise admissible. Reasonable notice that a deposition under the statute is to be taken is a mandatory requirement. An essential objective contemplated by that provision is clearly to alert one's adversary that the deposition is to be utilized as evidence to supplant testimony by personal appearance of the expert witness. The need for such clear notice is readily apparent, since any objection must be made to the court before the deposition is taken.
Our conclusion is that the 'reasonable notice' provision of section 90.23 was not fulfilled by defendants in the notice with which plaintiffs were furnished. On the contrary, it merely indicated that the deposition was to be taken '* * * under the 1954 Rules of Civil Procedure.' Intent of the reasonable notice specification of the statute is that the adverse party be advised his opponent plans to proceed under the statute. Thus, defendants, because of failure to comply with the requirement of section 90.23 that reasonable notice be given of their intention to take the deposition pursuant to the statute, cannot avail themselves of it. To hold otherwise would impose a requirement upon opposing counsel to guess or speculate whether the party taking the deposition would proceed under the statute or under the rule and to remain in doubt as to when his objection should be made.
Under Rule 1.21(d)(3), it devolves upon defendants to account satisfactorily for the absence of the deposing witness. We do not find that this was done so as to meet the conditions of the rule in order that the deposition might be used as a substitute for personal appearance. Defendants do not urge that they have complied with the rule but rather place their reliance upon the applicability of the statute. They have fallen short of the prescribed procedures required respectively under the statute and under the rule, and the action of the trial judge in refusing to admit the deposition into evidence did not constitute error.
At this juncture, we comment that section 90.23, Florida Statutes, F.S.A., in desingnating the method to be followed during deposition proceedings, states that the deposition shall be taken '* * * in the manner now provided for taking depositions de bene esse, notwithstanding the residence of the witness.' This has reference to Rule 1.32, 'Depositions De Bene Esse', Florida Rules of Civil Procedure. This rule, however,...
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Cook v. Lichtblau
...1962, 212 F.Supp. 164, 165; 4 Moore's Federal Practice, Par. 26.04. Cf. Vevelstad v. Flynn, 9 Cir. 1956, 230 F.2d 695.3 Owca v. Zemzicki, Fla.App.1962, 137 So.2d 876.4 Since the Miami physician was an expert witness, his duty to attend court and testify with respect to matters of opinion an......
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Whight v. Whight
...was fully tried by implied consent. Fla.R.Civ.P. 1.190(b); Hemraj v. Hemraj, 620 So.2d 1300 (Fla. 4th DCA 1993); Owca v. Zemzicki, 137 So.2d 876, 878 (Fla. 2d DCA 1962). Ordinarily, a child support determination lies within the trial court's sound discretion, "subject to the statutory guide......
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Miller v. James, 6330
...v. Cusack, Fla.App.1958, 104 So.2d 785; St. Joe Paper Co. v. Gulf Mosquito Control Dist., Fla.App.1961, 125 So.2d 895; Owca v. Zemzicki, Fla.App.1962, 137 So.2d 876; Bell v. Tarvin, Fla.App.1964,163 So.2d 300; Ratner v. Arrington, Fla.App.1959, 111 So.2d 82; Kraus v. Osteen, Fla.App.1962, 1......
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the Florida Bar, In re, 42218--A
...the plain language of the rule and cause complications that the committee and the legislature did not envisage. See Owca v. Zemzicki, Fla.App., 137 So.2d 876; Cook v. Lichtblau, Fla.App., 176 So.2d 523, and Bondy v. West, Fla.App., 219 So.2d 117. The committee hopes the amendment to subdivi......