Ruhala v. Roby

• Decision Date: 02 May 1967
• Docket Number: No. 1,1
• Citation: 150 N.W.2d 146,379 Mich. 102
• Parties: Richard RUHALA, Administrator of the Estate of Esther Kingsley, Deceased, Plaintiff and Appellant, v. James ROBY and William Burditt, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 146

150 N.W.2d 146

379 Mich. 102

Richard RUHALA, Administrator of the Estate of Esther Kingsley, Deceased, Plaintiff and Appellant, v. James ROBY and William Burditt, Defendants and Appellees.

No. 1.

Supreme Court of Michigan.

May 2, 1967.

Leitson, Dean, Dean, Abram & Segar by Max Dean, Flint, for Richard ruhala

Des Jardins & Des Jardins, by Jerry L. Des Jardins, Owosso, for James Roby, defendant and appellee.

Before the Entire Bench.

BRENNAN, Justice.

STATEMENT OF FACTS

On December 7, 1963, Esther Kingsley was injured in an auto collision at about 8:25 a.m. on the Dixie Highway in Saginaw county. She died the same morning at 9:30 at St. Mary's Hospital in Saginaw. On May 25, 1964, the plaintiff, administrator of the estate of Esther Kingsley, filed a wrongful death complaint seeking damages against James Roby and William Burditt. He claimed that Esther Kingsley was a non-guest passenger in her own Chevrolet, being driven by Roby, who collided with a pick-up truck driven by Burditt, due to the negligence of both drivers. On June 2, 1964, Roby filed an answer in the cause in which he denied that he was driving the Chevrolet automobile in which the plaintiff's decedent was an occupant. He alleged affirmatively that the plaintiff's decedent was the driver of the car. And he further alleged that the vehicle was being operated by plaintiff's decedent in a reckless and negligent manner and at a high rate of speed. On June 19, 1964, the defendant Burditt filed his answer. He denied negligence on his part and affirmatively alleged that the sole cause of the collision was the negligence of the driver of the decedent's automobile. In paragraph 2 of his answer, Burditt admitted that James Roby was operating the death car.

On December 7th, the day of the accident, at about 2:30 in the afternoon, defendant Burditt had given a statement to one Gerald Hough, a state trooper. In this statement, the following question and answer appears:

'Q. William you said earlier that the woman was on your side when you hit. So would you say that the man in the car was driving?

'A. He had to been, there was a man driving.'

Two days later, on December 9, 1963, the defendant Burditt gave another statement to a man named Donald Cook. This statement was also reduced to writing in question and answer form. It contains the following:

'Q. I see, do you know who was driving the other car?

'A. Well, I'll tell you the same as I told the State Police and his wife, the woman was not driving the car.'

On September 15, 1964, before the case came up for trial, the deposition of Burditt was taken for the purpose of discovery. On the deposition, Burditt testified that there was a woman behind the wheel, whereupon the examiner asked Burditt a number of questions concerning the two prior statements he had given to Hough and Cook. Burditt conceded making the prior statements, but was never asked whether his prior statements were true.

The trial of the cause commenced on March 17, 1965. William Burditt was present in the courtroom during the trial. During the presentation of the plaintiff's case in chief, plaintiff moved to admit into evidence the discovery deposition of the defendant Burditt. Thereupon a conference was had with the court in chambers. The court excluded the portions of the deposition having to do with the examination of Burditt on his two prior extrajudicial statements. It should be noted also that in offering Burditt's deposition into evidence the plaintiff did not indicate the purpose for which the offer was made, nor the court rule under which the deposition was claimed to be admissible. Burditt at that point had not been called as a witness in the trial.

Since the conference on the admissibility of the specific questions and answers in the deposition was had in chambers, and since no stenographic record was made of the discussion in chambers between the court and counsel, the reason for the exclusions that were made does not immediately appear in the record. Later, however, the trial judge indicated on the record that the reason for the exclusion of those portions of the deposition had to do with his feeling that no foundation had been laid. More on that later. Plaintiff proceeded to read the deposition into evidence, omitting the portions which the court had ruled to be inadmissible.

On the following day of trial, March 18, 1965, plaintiff called the defendant Burditt as an adverse party for cross-examination. Objection was made and the court ruled that the plaintiff could not call defendant Burditt under the statute for cross-examination, after having introduced his deposition. The court ruled that by the use of the deposition, plaintiff had made Burditt his own witness. A separate record out of the presence of the jury was made, in which the plaintiff was permitted to cross-examine Burditt fully as an adverse party. After the separate record was made, the plaintiff, pursuant to the court's ruling, called defendant Burditt as his own witness. At the conclusion of the plaintiff's case, defendant Burditt made a motion for directed verdict, which was granted on the ground that there was no evidence of any negligence on the part of Burditt which could go to the jury. A judgment in favor of Burditt was entered upon this directed verdict and no appeal has been taken therefrom. In due course, plaintiff's case against defendant Roby went to the jury and the jury found no cause for action. An appeal was taken after a motion for a new trial was denied.

The Court of Appeals affirmed the trial judge, saying, among other things, that under the circumstances of this case the deposition of Burditt could be used for impeachment purposes only and that none of the deposition should have been received in evidence. The Court of Appeals further held that in the light of the procedure followed in this case, the plaintiff had made Burditt his own witness and the trial court did not err in denying plaintiff's request to call defendant Burditt for cross-examination under the statute.

I. THE USE OF THE DEPOSITION

The first question which must be answered in this case is: Was the plaintiff entitled to read the deposition of William Burditt into evidence? This question must be answered because the Court of Appeals has stated flatly that in its opinion none of the deposition should have been received in evidence. Although this discussion is actually a blind alley so far as the decision in this case is concerned, the matter is an important one to the bench and bar, and merits our interpretation of the applicable court rules. It is important to note at the outset that there are two entirely different kinds of depositions contemplated by the rules. On the one hand, there are depositions of mere witnesses who are not parties to the lawsuit. On the other hand, there are depositions of parties, their officers, directors, agents and employees. The practice governing the use and effect of these two distinct and different types of depositions is clearly outlined in the court rules. ¹ The difficulty in this case lies in the fact that under our trial practice it is possible for a party to call his adversary in one of two ways: either for cross-examination under the statute, ² or as his own witness. If the former result is desired, counsel is required to announce the purpose for calling the witness. ³

The Court Rules permit parallel options in the use at trial of depositions. If the deposition of a party or his agent is offered under General Court Rule 302.4(2), ⁴ there is a use of the deposition which parallels the calling of an opposite party for cross-examination under the statute. ⁵ If the deposition of an adverse party, however, is offered under General Court Rule 302.4(3), ⁶ it parallels the calling of an adverse party as a witness without announcing the purpose therefor and makes the deponent the witness of the party calling him. If, as we have seen, the use of depositions parallels the calling of witnesses at trial, it would be good practice for counsel to announce his purpose in offering the deposition, and better practice for counsel to indicate the court rule pursuant to which he offers the deposition. It is possible to conceive of situations in which such a failure would have the effect of making the deponent the witness of the party offering the deposition. Nevertheless, the making of such announcement will not be strictly required when under all of the facts and circumstances the intended use of the deposition is apparent. In the instant case, Burditt was present in the courtroom at the time his deposition was offered and he had not yet testified in the case. Therefore, it was obvious that his deposition was not being offered because of his unavailability under Rule 302.4(3), nor was it being offered to impeach him under Rule 302.4(1). To have permitted the use of the deposition under 302.4(1) or 302.4(3) would have been error under the circumstances, and error will not be presumed. Thus, it is obvious that the deposition of William Burditt was offered, though no announcement was made, pursuant to Rule 302.4(2), paralleling cross-examination of an adverse party.

By such use of the defendant's deposition plaintiff did not make Burditt his own witness. GCR 1963, 302.6 clearly indicates this:

'.6 Effect of Taking or Using Depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of impeaching the deponent makes the deponent the witness of the party introducing the deposition, But this shall not apply to the use by an adverse party of a deposition as described in sub-rule 302.4(2).' (Italics supplied.)

It is thus concluded that there was no error in permitting the Burditt deposition to be read in evidence. And under the circumstances of this case the introduction in evidence...