Opinion
No. 7119SC199
Filed 23 June 1971
Rules of Civil Procedure 26, 43 — civil trial — reading of deposition — prejudicial error The reading of a deposition in a civil trial was prejudicial error where there was no finding that the deponent was dead or that he lived more than 75 miles from the place of trial or that any other condition specified in Rule 26(d)(3) was applicable so as to make the deposition competent. G.S. 1A-1, Rules 26(d)(3) and 43(a).
APPEAL by plaintiffs from Gambill, Judge, 1 October 1970 Session of Superior Court held in RANDOLPH County.
Ottway Burton for plaintiff appellants.
Coltrane and Gavin by W. E. Gavin for defendant appellees.
Chief Judge MALLARD concurring.
These are actions to recover damages resulting from injuries sustained by a passenger in an automobile when the vehicle left the highway and struck a utility pole. From a verdict finding negligence on the part of defendant driver and contributory negligence by the plaintiff passenger, plaintiffs appealed.
Evidence of defendant driver's negligence was plenary. The defendants contended, however, that Larry Maness, the plaintiff passenger, was contributorily negligent in that he voluntarily rode with Bullins with knowledge that Bullins was under the influence of an intoxicant. Bullins testified that he and Maness drank a pint of whiskey together during a two hour period immediately preceding the accident and that he, Bullins, was under the influence of liquor. Larry Maness testified that another passenger in the vehicle, one Clarence E. Henry, drank part of the pint of whiskey and that Bullins was not under the influence of intoxicating liquor. Over the objection of the plaintiffs, defendants were allowed to read into evidence the deposition of Clarence E. Henry which had been taken under Rule 31 of the North Carolina Rules of Civil Procedure, upon written interrogatories and filed several months prior to trial. Answers to the interrogatories were generally favorable to the defendants' contentions and unfavorable to the plaintiffs. Included in plaintiffs' fifteen assignments of error based on 35 exceptions is an assignment of error whereby plaintiffs contend that the admission of the deposition into evidence constituted prejudicial error. It did.
Although the North Carolina Rules of Civil Procedure provide extensive rights of discovery to any party, the use of a deposition in a civil case at the trial stage is sharply limited. Rule 43(a) provides that "[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules." With specific exceptions not material here, Rule 26(d)(3) provides that a deposition may be used at trial only if the court finds: "(i) That the deponent is dead; or (ii) that the deponent is at a greater distance than 75 miles from the place of trial or hearing, unless it appears that the absence of the deponent was procured by the party offering the deposition; or (iii) that the deponent is a physician who either resides or maintains his office outside the county where the trial or hearing is held; or (iv) that the deponent is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (v) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (vi) upon motion and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. If the court makes any such finding, the deposition may be used by any party for any purpose, whether or not deponent is a party."
The record in this case contains no indication by evidence or stipulation as to the whereabouts of Clarence E. Henry at the time the case came on for trial. There was no finding or inquiry by the trial judge as to the existence of any of the conditions specified in Rule 26(d)(3) which would have made the interrogatories competent and admissible in evidence. Absent such a finding, their admission constituted prejudicial error. We do not find it necessary to pass upon other matters raised in appellants' assignments of error since they may not recur upon a new trial.
New trial.
Judge PARKER concurs.