Eggers v. Narron

254 So. 2d 382, 1971 Fla. App. LEXIS 5745
CourtDistrict Court of Appeal of Florida
DecidedOctober 27, 1971
DocketNo. 69-514
StatusPublished
Cited by2 cases

This text of 254 So. 2d 382 (Eggers v. Narron) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eggers v. Narron, 254 So. 2d 382, 1971 Fla. App. LEXIS 5745 (Fla. Ct. App. 1971).

Opinion

OWEN, Judge.

Appellants were defendants in a personal injury action tried before a jury and resulting in a verdict and judgment adverse to them. The controlling question on this appeal is whether the court committed reversible error in denying the defendants’ proffer into evidence of the deposition of the defendant Robert Eggers, who was not present at the trial.

Rule 1.280(d) R.C.P., 30 F.S.A.,1 governs the use of all or part of a deposition at trial. By express language the deposition testimony may be used only so far as the same is “admissible” under the rules of evidence. In this case, however, we are not concerned with the admissibility vel non of a deposition, but rather its “usability”, i. e., the threshold determination of whether a condition exists by virtue of which a party has become entitled to even offer into evidence all or part of a deposition, and lf so> the extent of any limitation thereon.

Several months before trial the plaintiff had taken the deposition of defendant Eggers upon oral examination, and in due course the deposition was transcribed and filed with the clerk. When the case came to trial, defendant Eggers was not present, his whereabouts apparently being then unknown to his own attorneys (who also represented the co-defendant, Richardson Tractor Company, Eggers former employer). Plaintiff, as part of his case, read into evidence a scant eight lines from Eggers’ deposition by which the deponent stated that the rear bumper of the vehicle he was operating had been torn off in the accident. Of course, subject to being admissible under rules of evidence, the plaintiff (as an adverse party) had the right to use' the deposition under subsection (2) of the rule.

[384]*384After plaintiff rested, defendants as part of their case in chief offered Eggers’ entire deposition, to which plaintiff objected. After some colloquy between court and counsel,2 defendants proceeded to offer sworn testimony by their trial counsel and by an officer of the corporate defendant which outlined their unsuccessful efforts to locate Eggers and which related the information they had received to the effect that Eggers was “taking off for parts unknown” due to his becoming delinquent in alimony payments. On the basis of such sworn testimony, seeking to establish the unavailability of the witness within the scope of subsection (3) of the rule, the defendants again moved to be allowed to offer the deposition into evidence. The court denied this motion on the basis that the defendants had not made a sufficient showing as to the absence of the witness. The defendants then proffered the deposition and the court ruled that it would refuse the proffer insofar as it pertained to matters other than the portion relating to the part read by plaintiff during his case.

Defendants contend on this appeal (as they did in the trial court) that they were entitled to use Eggers’ deposition under the provisions of both subsection (3) and subsection (4) of the rule. Because we [385]*385conclude that the defendants were entitled to use Eggers’ deposition by virtue of the provisions of subsection (4) of the rule, it becomes unnecessary for us to- determine or even discuss the question of whether the trial court abused its discretion 3 in ruling that defendants had not sufficiently carried their burden of establishing a predicate to use the deposition under the provisions of subsection (3).

Subsection (4) of the rule, which by its own terms applies only when a part of a deposition has been placed in evidence by a party, contains two provisions which are separate and distinct from each other and should not be intermingled or confused as each serves a valid but separate purpose. The first gives to a party who is adverse to the party introducing4 a part of the deposition the right to require the proponent of the deposition to introduce all of it relevant to the part introduced. This is the portion of the rule which the plaintiff successfully but erroneously urged upon the trial court as the limiting factor to the defendants’ right to use Eggers’ deposition. The purpose of this provision of the rule is to insure fairness, so that an isolated portion of the deposition not be read out of context or independent of other portions which fairly qualify or explain it.5 Properly construed and applied, this provision simply means that when a party has become entitled under either subsection (1), (2) or (3) of the rule to use a deposition at trial, and makes known the intention to introduce into evidence only a part thereof, an adverse party can require the proponent (as part of the proponent’s case) to introduce all portions of the deposition relevant to the portion which the proponent introduces. The trial court has broad discretion to control the procedure to the end that the trier of fact may best follow the deposition testimony in a comprehensible manner, and to insure that the manner of presentation does not defeat the purpose of the rule.

The second provision of this subsection unequivocally provides that once a part of the deposition is introduced into evidence by a party, any party may introduce any other parts. There is no limitation or restriction requiring that such “other parts” introduced by another party be relevant to the part already introduced. When the plaintiff in this case elected to introduce into evidence a part of Eggers’ deposition, each of the defendants thereupon became entitled under this provision of subsection (4) of the rule to offer into evidence during the defendants’ case any other parts of Eggers’ deposition. The right to do so was not dependent upon either of the defendants being able to show entitlement to use the deposition under the provisions of subsection (3) of the rule, nor was the right to use the deposition limited or restricted to those parts which were relevant to the parts which plaintiff had introduced into evidence. Thus, it was error for the court to restrict appellants’ use of Eggers’ deposition to those portions which pertained to matters relevant to the part read by plaintiff during his case.

Eggers’ deposition contained testimony which was both relevant and material to the issues of (a) the defendants’ alleged negligence, and (b) plaintiff’s alleged status as an employee of the corporate defendant at the time of the injury. At the conclusion of all of the evidence, the court withdrew from the jury any issue of employer immunity on the grounds that there was no evidence upon which the jury could find that plaintiff occupied the status of an employee of the defendant Richardson [386]*386Tractor Company at the time of plaintiff’s injury. Appellants assigned this ruling as error. While we believe that this ruling was correct on the basis of the evidence then before the jury, it would have been an erroneous ruling had Eggers’ deposition testimony relating to the employment status of plaintiff been admitted into evidence.

Plaintiff sustained serious and permanent injuries as a result of the accident. The record contains a substantial amount of expert medical and lay testimony relating to the nature and extent thereof, all of which adequately justifies the jury verdict.

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Cedars of Lebanon Hosp. v. Silva
476 So. 2d 696 (District Court of Appeal of Florida, 1985)
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305 So. 2d 228 (District Court of Appeal of Florida, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
254 So. 2d 382, 1971 Fla. App. LEXIS 5745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eggers-v-narron-fladistctapp-1971.