The Aetna Life Insurance Company v. Deming

• Decision Date: 17 May 1890
• Docket Number: 13,916
• Citation: 24 N.E. 375,123 Ind. 392
• Parties: The AEtna Life Insurance Company v. Deming, Administrator
• Court: Indiana Supreme Court

24 N.E. 375

123 Ind. 392

The AEtna Life Insurance Company v. Deming, Administrator

No. 13,916

Supreme Court of Indiana

May 17, 1890

Original Opinion of April 1, 1890, Reported at: 123 Ind. 384.

OPINION

Berkshire, J.

The following are the reasons stated in the petition:

First. Because in the opinion of the court, it is held that no error was committed by the court below in suppressing the answers to questions fifty and fifty-one in the deposition of Evan James, taken on behalf of appellant.

Second. Because in said opinion rendered, the court sustained the ruling and decision of the court below in suppressing and excluding the deposition of Dr. Walker, taken on behalf of appellee. Also the deposition of Dr. Le Crone, taken on behalf of appellant.

Third. Because in the opinion rendered, the court sustained the ruling and decision of the court below in excluding the deposition of Dr. Walker, taken on behalf of appellant.

Fourth. Because of the erroneous decision of this court upon the three questions above enumerated, the appellant prays a rehearing.

In the original opinion we held that the ruling of the lower court in suppressing the answers to questions fifty and fifty-one in the deposition of Evan James, was a harmless error, and after a careful consideration of the question since the filing of the petition for a rehearing, we are still firmly of that opinion.

In argument to support their petition, counsel most earnestly insist that the court should have passed upon the abstract question as to whether or not the taking and filing by one of the parties to an action of the deposition of a witness who is a competent witness for him, but who is incompetent to give evidence for the other party, is a waiver and renders the witness competent for said other party.

We did not pass upon the question for the very good reason that we were not called upon by the record to do so. We held that as the appellant had first taken the deposition of Drs. Walker and Le Crone, and as the evident purpose of the appellee in thereafter taking the depositions of these witnesses was to break the force of their testimony as given in their depositions as taken by the appellant, the taking and filing of their depositions was not a waiver.

There ought not to be any misunderstanding of the force of the original opinion in this regard, and it was certainly a fair disposition of the question. But our attention is called to...