Voorheis v. Hawthorne-Michaels Co.
| Decision Date | 12 June 1957 |
| Docket Number | HAWTHORNE-MICHAELS |
| Court | California Court of Appeals Court of Appeals |
| Parties | Edna S. VOORHEIS, Donald S. Voorheis, Liesel A. Voorheis, and Irving S. Voorheis, by their Guardian ad litem, Edna S. Voorheis, Plaintiffs and Respondents, v.COMPANY and Hyman-Michaels Company, Defendants and Appellants. Civ. 22062. |
Schell, Delamer & Loring and Lee A. Solomon, Los Angeles, for appellants.
David Sokol and Arthur M. Reilly, Los Angeles, for respondents.
Plaintiffs, the widow and children of Donald C. Voorheis, brought this action for his alleged wrongful death. The accident occurred on August 5, 1954. Voorheis was working as a grade checker for MacDonald & Kruse Construction Company in the Los Angeles River Channel. Defendants were the owners of equipment being used in removing earth from the river channel. Benjamin Kirk, an employee of defendants and a truck driver of long experience, was driving a tractor and trailer, called a Euclid, carrying earth from the channel. The complaint alleged Kirk so negligently operated the Euclid that it struck Voorheis, causing his death. Kirk was not named as a defendant. Defendants denied negligence and pleaded contributory negligence.
The complaint was filed November 17, 1954. On February 21, 1955 plaintiffs took Kirk's deposition. Kirk was not at that time in the employ of defendants. The deposition was transcribed on March 24, 1955. Kirk died in October 1955. The trial began April 9, 1956. Kirk's deposition had not been read to or by him, nor had it been subscribed by him. Over defendants' objection the court permitted plaintiffs to read Kirk's unread and unsubscribed deposition in evidence.
After the parties had rested, each party moved for a directed verdict. Plaintiffs' motion was granted and the court directed the jury to render a verdict for plaintiffs against defendants for $40,000. 1 Defendants' motion was denied. The jury returned a verdict as directed and a judgment for plaintiffs against defendants for $40,000 was entered. Defendants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion for judgment notwithstanding the verdict was denied. The motion for a new trial was granted, limited to the issue of damages only on the ground of insufficiency of the evidence. Defendants appeal from the judgment and from the order granting a new trial on the issue of damages.
The specifications of error are: 1. The court erred in admitting the unread and unsubscribed deposition of Kirk in evidence. 2. The court erred in directing a verdict on the question of liability in favor of plaintiffs, and consequently erred in denying defendants' motion for a new trial on that question. 3. The court erred in denying defendants' motion for a directed verdict, and consequently erred in denying their motion for judgment notwithstanding the verdict.
Only two persons testified on the question of liability--Kirk, by way of the unread and unsubscribed deposition; and Raymond Dollar, a coemployee of Voorheis.
Dollar testified that for about two months he had worked on the job as an oiler on a dragline, a type of crane on caterpillar tracks with a bucket hanging from its boom. As the dragline would draw the bucket towards the machine the bucket would scoop up earth in the channel, the dirt would then be lifted and unloaded into a string of Euclids lined up on the river bed. A 'Euclid' consists of a relatively small cab on a tractor and a large semitrailer coupled together in such manner that the trailer does not track, that is, follow the wheels of the tractor when the Euclid is being turned. A Euclid is about 50 feet long. Until the day of the accident, the Euclids went up the river bed, pulled up alongside the dragline, were loaded, and then proceeded up the river to the nearest ramp cut out of the side of the channel. Some time before 1 p. m. on the day of the accident, the dragline had been moved about 150 feet down the river and the method of operation changed. The Euclids went up the river bed, made a complete turn of 180 degrees, were loaded, and immediately proceeded up the nearest ramp. There were about 30 feet in which to make the swing and reach the ramp.
The afternoon shift started at 1:30 p. m. About an hour later Dollar saw Voorheis' body lying between the place where the Euclids were loaded and the ramp, about 40 feet from him. Just a few seconds before he saw the body, a Euclid had been loaded bearing 'No. 2.' The Euclid driven by Kirk had 'No. 2' on it. Dollar was 'spotting' the Euclids at the time; that is, stopping them in the correct position to be loaded. He had spotted Euclid No. 2, and after it was loaded he saw it start up and leave. He then turned his back and watched the next Euclid pull into position. The Euclids were coming in an almost continuous procession, as fast as one left another was loaded. He did not see Euclid No. 2 hit Voorheis. He did not recall seeing Voorheis on August 5 before the accident.
Dollar further testified Voorheis was with him on the job every day and was working around the Euclids all the time he was there. He stated that a grade checker establishes and measures the grade. As a grade checker, Voorheis had set stakes down in the cut of the river that was made or to be made by the dragline. Occasionally the banks of the river had to be graded and Voorheis had set stakes on the upper surface. From time to time he had placed stakes around the Euclids.
The substance of Kirk's testimony, by way of the unread and unsubscribed deposition, was that when he started to pull out after his Euclid had been loaded he saw Voorheis standing about 4 or 6 feet from the right hand of his cab. He waved at Voorheis and Voorheis waved back. When he made the turn up the ramp he did not notice whether he had struck something; he never felt anything. He knew that the trailer part of the Euclid did not track. On his return trip to the river bed, about an hour later, detectives told him that he had hit a man. He remembered pulling out of the river bed about 2:30.
As stated, the first specification of error is that the court erred in admitting the unread and unsubscribed deposition of Kirk in evidence.
The term 'deposition' is now confined in meaning to testimony delivered in writing; testimony which in legal contemplation does not exist apart from a writing made or adopted by the witness. In practice the witness usually does not write out the statements but testifies before a commissioner authorized by the court to receive and transmit it and to act as the transcriber of the oral utterance. Since it is an intermediary who makes the writing which becomes the testimony, it is specially necessary to be certain that this writing shall represent precisely the statements for which the witness stands responsible. Professor Wigmore gives three elements which may be source of error and must be guarded by special rules; they are: the personality of the official writer, the verbal accuracy of his transcription of the witness' utterance, and the witness' deliberate and knowing indorsement of the transcription as completed. III Wigmore on Evidence, 211, § 802. Because the writing is to stand as the witness' own words and there is always an inherent possibility of error in the transcription, a final opportunity for correction of the writing as completed should be given by the reading to or by the witness. The witness' signature may be regarded either as necessary to constitute the writing his by adoption, or as symbolically equivalent to a knowing assent to its tenor, or as an additional means of identifying the person of the witness. Wigmore states that whatever the legal theory it is usually treated as a requirement indispensable under the statutes. Id., 217 § 805. He continues by saying that if the writing is not read and signed it does not become the testimony of the witness.
Section 2022 of the Code of Civil Procedure reads: 'A deposition taken and returned, as provided in this chapter [chapter 3], may * * * be read in evidence * * *.' Section 2006 which provides the method of taking depositions, and section 2032 which provides for the manner in which depositions must be prepared, are found in chapter 3 and say that after the deposition is completed it must be carefully read to or by the witness, and it 'must then be subscribed by the witness.' (Italics supplied.) Section 2032 ends with the provision: 'The deposition thus taken may be also read in case of the death of the witness.' The verb 'must' is used in sections 2006 and 2032 in stating the procedure to be followed. It is mandatory. Board of Supervisors of Los Angeles County v. Simpson, 36 Cal.2d 671, 676, 227 P.2d 14; People v. Gotto, 138 Cal.App.2d 165, 168, 291 P.2d 41. The only authority for the use of depositions in civil cases lies in the provisions of the Code of Civil Procedure, Bank of Orland v. Finnell, 133 Cal. 475, 477, 65 P. 976, and unless a deposition is taken in the manner prescribed it may not be admitted in evidence. 15 Cal.Jur.2d 681, § 6.
In the early case of Thomas v. Black, 84 Cal. 221, 23 P. 1037, 1038, two witnesses testified in court at the time of the granting of a continuance. The testimony was taken down by a shorthand reporter in the presence of the court but was not read to the witnesses, or corrected or subscribed by them, nor was it certified by the reporter or by any other person. It was held that the transcript lacked the essential elements of a deposition and therefore was inadmissible on the trial. The court said: 'The jury before whom the case was afterwards tried did not see the witnesses, and could have no assurance that the document presented contained a true statement of their testimony.' Bennett v. Superior Court, 99 Cal.App.2d 585, 222 P.2d 276, held that certain documents not...
To continue reading
Request your trial
-
People v. Post
...ch. 474, § 2, p. 835.) The 1929 amendments did not materially alter the signature requirement.4 (See Voorheis v. Hawthorne-Michaels Co. (1957) 151 Cal.App.2d 688, 693, 312 P.2d 51.) The strict statutory procedures for completing the deposition with the signature of the deponent were relaxed......
-
Dilliplaine v. Lehigh Val. Trust Co.
...and have decided that the presumption is applicable even though the party died from other causes. See Voorheis v. Hawthorne-Michaels Co., 151 Cal.App.2d 688, 312 P.2d 51 (1957) (California later did away with the presumption of due care completely) and Wells v. Dairyland Mut. Ins. Co., 274 ......
-
Emerson Electric Co. v. Superior Court
...by the witness." ' " (Quoting People v. Hjelm (1964) 224 Cal.App.2d 649, 655, 37 Cal.Rptr. 36).]; accord, Voorheis v. Hawthorne-Michaels Co. (1957) 151 Cal.App.2d 688, 692, 312 P.2d 51 ["In practice the witness usually does not write out the statements but testifies before a commissioner au......
-
Crabtree v. Measday
...is used in Rules 30(e) and 26(g), supra, it is mandatory. Section 1--2--2(I), N.M.S.A.1953 (Repl. Vol. 1); Voorheis v. Hawthorne-Michaels Co., 151 Cal.App.2d 688, 312 P.2d 51 (1957). The rule requires signing unless signature is waived or the reasons for no signature are stated as provided ......