Biggs, Chief Judge, and Staley and Ganey, Circuit Judges.
The case was tried to a jury and resulted in a verdict in favor of the administratrix. The defendant-appellant, The Pennsylvania Railroad Company, in substance moved for judgment in its favor or in the alternative for a new trial. This was denied by the court, 36 F.R.D. 195 (W.D.Pa.1964), and the appeal at bar followed.
The interesting question raised by this appeal is whether the court below erred in admitting into evidence at the trial of this negligence case depositions taken by the Railroad pursuant to Rule 26(a), Fed.R.Civ.Proc., 28 U.S.C. The taking of the depositions was not completed due to the illness and death of the deposing witness, Joseph W. Derewecki, the plaintiff's husband and the original plaintiff in the case at bar. The present plaintiff, Mrs. Derewecki, now the administratrix of her husband's estate, offered the depositions in evidence at the trial and the court below received them in evidence over the objections of the Railroad as stated hereinafter.
Briefly put, the circumstances are as follows: Joseph W. Derewecki brought the suit at bar against his employer, the Railroad, under Section 51 of the Federal Employers' Liability Act, 45 U.S.C.A., but died before the action was tried. By order of the trial court his wife as administratrix of his estate was substituted as plaintiff and continued the action pursuant to Section 59 of the Act, 45 U.S.C.A. Following Derewecki's death the complaint was amended to include a claim based on Section 51 of the Act asserted by the plaintiff for herself as Derewecki's widow and for the Dereweckis' two children, both minors. The complaint alleges that on March 14, 1961, due to the Railroad's negligence Derewecki was injured in the course of his employment in the appellant's yard at Mingo Junction, Ohio. The alleged injury occurred when Derewecki was moving a truck assembly which, he contended, began to roll back upon him. The complaint asserts that he attempted to hold the truck in position and that the resulting strain caused him to suffer a coronary thrombosis and a myocardial infarction of which he died.
The Railroad, apparently having no record of any accident to Derewecki prior to the service upon it of the complaint in the case at bar, began to take a pretrial oral deposition from Derewecki on April 12, 1963, pursuant to Rule 26(a). This was interrupted by a sudden attack of illness suffered by Derewecki allegedly brought about by the accident, and the further taking of the deposition was adjourned to a "future date." The parties then stipulated that the deposition commenced to be taken on April 12th should "be and [it] is hereby considered to be the final deposition of plaintiff and that defendant is satisfied that no further deposition is required of the plaintiff and * * * [it] is to be treated as completed." This stipulation was filed on July 26, 1963 but was not approved by the court. The effect of this stipulation will be discussed at a later point in this opinion.
Subsequently, at a pretrial conference, on December 16, 1963, after some discussion off the record, the court stated: "The parties will be bound by all pleadings heretofore filed.", and later that: "If there is any desire to interrogate him [Derewecki] at his home for further deposition, there is no objection by Mr. Glasso."*fn1 On January 8, 1964, the Railroad attempted to take a second deposition from Derewecki or to continue the first.*fn2 The testimony elicited by the second deposition or continuation of the first deposition supplied a more detailed explanation of the alleged accident than did the first deposition but the proceedings lasted for only about fifteen minutes when they were interrupted again by another attack suffered by Derewecki. He died that day without further testimony being elicited from him.
Both depositions were admitted at the trial. Their contents constituted the sole direct evidence as to how and why the accident occurred. For closely analogous situations see Richmond v. Brooks, 227 F.2d 490 (2 Cir. 1955); Van Sciver v. Rothensies, 122 F.2d 697, 699 (3 Cir. 1941) (dictum); Fed.R.Civ.Proc. 26(d) (3), 28 U.S.C. See also Community Counselling Service, Inc. v. Reilly, 317 F.2d 239 (4 Cir. 1963).
The Railroad objected to the admission of the depositions on the ground that they had not been completed and that it did not have the opportunity to exercise its "right" to cross-examine Derewecki.
Before disposing of the issues specifically raised by the Railroad a preliminary matter requires discussion. Rule 26(a) provides that "Any party may take the testimony of any person, including a party, by deposition upon oral examination * * * for the purpose of discovery or for use as evidence in the action * * *", but Rule 26(d) (3) states that "The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: 1, that the witness is dead * * *."
It can be and was argued before the court below by the Railroad that the depositions under discussion were taken by it for the purpose of discovery rather than for use as evidence at the trial, but the notice of the taking of the first deposition, filed April 1, 1963, does not state its purpose.*fn3 The first page of the first deposition, obviously prepared by the court reporter, perhaps at the direction of counsel for the Railroad, states that Derewecki was called "for adverse party examination pursuant to the Federal Rules of Civil Procedure." The notice of the taking of the second deposition, filed January 2, 1964, is substantially similar in its terms to the notice of the first deposition and need not be repeated here. See n. 3, supra. But the first page of the second deposition, obviously written by the court reporter, a different reporter than he who took the first deposition, and again perhaps pursuant to the direction of counsel for the Railroad, states: "Continued deposition of Joseph Derewecki, Plaintiff herein, called by the defendant pursuant to the Rules of Civil Procedure for the United States District Courts pertaining to the taking of depositions for the purpose of discovery, and for use at trial * * *."
It should be pointed out, however, that counsel for the Railroad in his summary of facts at the time of the argument over the admission of the depositions during the trial stated to the court that "The deposition was taken solely for the purpose of discovery, although Rule 26 does permit deposition for two purposes or for a mixed purpose." Counsel for Mrs. Derewecki did not object to this statement. The court below in admitting the deposition stated that the "Ruling will be that the circumstances of this case require that we admit the deposition as though it had been taken for the perpetuation of evidence." Counsel for the Railroad objected to this ruling. It is necessary to make clear, however, that in the Railroad's motion for judgment in accordance with its motion for a directed verdict or for a new trial, counsel for the Railroad charged that "The court committed prejudicial error in admitting the deposition of Joseph W. Derewecki, as it was incomplete, [and] was taken for the purpose of discovery only. * *" We must also point out that counsel for the Railroad in making the argument that the deposition or depositions were for discovery only stated: "I merely wanted to state for the record that I recognize under Rule 26 any deposition is admissible under these circumstances. My objection is solely on the basis that these were incompleted depositions." It seems a fair inference from the record that counsel for the Railroad was asserting that the depositions were incomplete because he had had no opportunity to cross-examine Derewecki.
We have given this too lengthy statement of operative facts respecting the taking of depositions and the attitudes of the court and counsel towards them for the information of the reviewing Court should there be an appeal from our decision but we must state that the operative facts seem inconclusive other than the statement by counsel for the Railroad previously quoted that pursuant to Rule 26, under the circumstances at bar, any deposition is admissible, reserving however to the Railroad the objection that the depositions were incomplete.*fn4 The point originally asserted by the Railroad that the depositions were taken for the purpose of discovery only clearly was waived.*fn5 There remains the single issue whether or not the depositions were so incomplete by reason of the lack of cross-examination by the Railroad that to admit them into evidence constituted a denial of due process.
Specifically as to the Railroad's claim of the lack of an opportunity to cross-examine Derewecki, it is not clear whether the objection is to the lack of opportunity to cross-examine him at the taking of the depositions or at the trial. We cannot assume only the latter for even upon the taking of a deposition a party calling a witness may deem him to be adverse and may be permitted to cross-examine him as an adverse witness. See Rules 26(c) and 43(b). We will presume therefore that the objections ...