246
I'EDERAL REPORTER,
vol. 44.
FIRST- NAT."BANK OF GRAND HAVEN ". FOREST. (Circuit Cowrt, N. D. Iowa, E. D. November 25, 1890.) DBPOSITTONS DE BENE ESSII-FILING.
A deposition de bene essehtaken on interrogatories propounded by both parties, ianot under the control of t e one at whose iostanOtl it was taken; and, if at his request, the commissioner withholds the deposition, an order will issue requiring its return, the court having no discretion to refuse the order because the party was SUrprised by the testimony given.
At Law· ..Motion for an order requiring a commissioner to file in court a deposition taken de beM 688e. (]has. A. Clark, for plaintiff. Boies, HU8ted & BCYies and Henderfml., Hurd, Danw & Kieael, for defendant. SHIRAS, J. This action is based· upon certain promissory notes signed "Forest Bro!!.," it being claimed thatthedefendant'wlls a member of the firm, and therefore liable upon the Dotes. The defendant denies that he was a member or such firm, and this is the main issue in the case. In June last, plaintiff's attorneys served written notice on attorneys for defendant that the deposition of George Forest. would be taken at Flint, Mich., before Henry R. Lovell, a United States commissioner, the reason 'assigned for taking the same beiug·"that the said George Forest resides in the'state.of Michigan, outside of the northern district of Iowa, and more thanone.bundred miles from the city of Dubuque, the place where it is expected ,the said action will bEl tried.'t In other words, it wall proposed to take the deposition under' what is commonly known as the de bene 688eprovisionsof the statute, and' which now form sections 863, 864, andr866 of the··Revised Statutes of the United States. On · the day named in the notice, counsel for the respective parties appeared at Flint, Mich., and the deposition of the witness was taken upon oral tnterrogations andreducedtQ writing by the commissioner. It now ap" pears that the deposition thus taken has never been returned into court by the commissioner,and:, in reply to a letter of inquiry addressed him bycounselfor he writes under date of 1890, as follows: "HeplyingtoYofirs rilf22dlnst.· Mr. Farr. who appeared for the plalntiif In the matter in question, instructed me to hold the del'0sition subject to bis
R. LoVELL, U. S. Commissioner." The motion now submitted on behalf of defendant is for an order directing the commissioner to return the deposition forthwith, as the CRse is noticed for trial at the present term. So Jar as the action of the commissioner is concerned, it is clear that hcmiiConceives his duty in the premises. . It is his duty to deliver the "HENRY
order, and 1 am still so holding it. "Very respectfully,
247 ,deposition into this, boutt· with 'his own 'hftIld, or:' 'toseaLit', upiand fsend it as required bytheprovi;aions of section 865 of the Revised Statutes., A 90mmissiohellis supposed;to be whoUydndifferent the parties, an,d to act for the COmmon interest in. taking and forwarding depositions; andrtl dllpositiontaken.upon interrogatorieE! propoundeq by: botQ., parti!J;sis not ,undetthELCOntl'olof one afcth£hparties. ' Wllen. taken, it shoUl.d be promptly forwarded by the c()mmissioner to the court in whiQh, the calIse, is, pending Jor trial, .and acomruissioner is derelict II) hd.s allows one of the parties to. dietateito him the made of ,a depoaition:thtus,taken by him under the authority conferredupoQ hjt:\) bylaw:for that purpose. On behalfof tiff it is urged,)J;lopposition to themc>tion, that the court1in the eiXet:<:ill6 oUts discretion, shouldnotrequbethe forwarding of,thedeposifor the tak-en by surprise' by; the, testi<Xqony pf the WJtIWss:in couDselhad no oppprt,pnity for cr.oss-.E}xalllirting the witness, and ;th£l alleged of hisf,estimon,y I a,nd williog,toihave ,deiendan,t talwthe plailltifhn,'Opportunity To the .m9tl!:)Ui is' 3 ttacheq a; copy, of for· a. .thorough. th.e giy.ep ; ,by th!'l,W!itl1tss ,and .the h !::leel} . . to ··flee {!Illy, the of. the';tel1sonsurged pyplaintilf's in this mat.. if I a U1atWI1·withinthediseretionofeounsel on part, cqartj Qqttlle ;to he ",determined· is whether, as So :qlQtter of pllorty :oan:d.kect;. </<>mmissioner to.w:ith,bold ,ardepof witl,1\¥,s :oll11.is motiQIl, but, w have ,the .airQplybfC$Q.se t9&tinll,O'lly·.· party. F.:gri,ll!1!lk§tl911,U t)}ia &M:eJhl'l i;B:accordauce with the suggestion of plaintiff, should refuse the order requested, upon the theory that the defendant could take the testimony of the witness anew, and that should be doue, andJhe_tenor of the evidence should be aueh as not to be pleasing to the defendant, and he in turn, following the example of the plaintiff herein, should notify the commissioner not to forward the deposiM9ns' positjQn, ,w'ould the' 'Court and the parties be in? It cannot be possible thatsu6li 'a practice can be permitted, c1ient8" is returned, without injury ,to it i8 always within the power of the court, upon a sufficient showing of to surprise or the like, to require a witness to re-examined,()r furtber'cros&-examillatione,' if thereforp.!i:S"not, heen eneause depositions to be joyed, but it can:not 'bepernlnted to ,taken' upon notice tathe other paI1y l aM, after, the latter has, at expense, ;attflnded llt the time a:ndplM6 Jtl tion,.:to then nullify ,: at' his own .pleasure, all that has thus been done, by simply qorrgllissioner to 40ld the,depbsiticili;instead of torwardingthe same to the proper court;:.1 do not suppose it would be claimed that after tbe' clerk's,bands}heparty on'vbose in,otiotl., itWlilS ,taken.. OQuld . take thereof, iijid refuse
:pQSaes.sion
248
FEDERAL REPORTER,
to produce it, or by directing the clerk to hold it he could deprive the
other party of the right to use it on the trial. The deposition in the hands of the commissioner is just as much beyond the control of the parties as though the same had been filed in court. When filed in court, the party on whose motion the deposition was taken is not obliged to read the same in evidence unless he so chooses, but he cannot prevent the other party from reading it as part of the latter's case. So when a deposition has been taken before the commissioner, the party moving therein may ignore it,-that is, may refuse to further deal with the deposition on his own behalf,-but he cannot deprive the other party, who participated in the taking thereof, of the right to have the deposition returned into court in order that he may adopt it and read it as part of his evidence. The copy of the deposition taken shows that full opportunity was afforded to plaintiff's counsel to examine the witness at length, and at the beginning of the cross-examination, upon objection being made, that certain questions were not proper in cross-examination, defendant'scounsel stated that all questions not deemed to be proper as matter of cross-examination he should ask the court to receive as testimony on part of the defendant. ·.The witness being thus made, in part at least, a witness for defendant, was thus subjected to cross-examination on part of plaintiff; and, if the opportunity was not availed of to the extent now deemed desirable by counsel, it was not the fault of the witnes!! or of defendant. I am therefore clearly of the opinion that the defendant is entitled to have the deposition in question promptly forwarded to the. court by the commissioner. Not doubting that counsel, on being advised of the views of the court, will forthwith notify the commissioner that he is required to promptly forward the deposition, and that the lat· ter will at once perform the duty which the statute places upon him, no further order in the premises will be made at the present time.
FELL 11. NORTHERN PAC.
R. Co.
(O&rcuU Court, D. North Dakota. November 111, 1890.)
1. 2.
TORTS OJ' SERVANT-EXEMPLARY DAMAGES.
Exemplary damages may be awarded against a master, though the wrong complained of was the act of his servant, not authorized nor ratified by him. The plaintiff bought a ticket, and was told by the agent tbat he could ride on a particular train. The conductor had not been informed of the order to carry, and ejected the plaintiff on a dark night, while the train was running at a dangeroua rate of speed. Beld. that the case was a proper one for exemplary damages.
CARRIERS-ElECTION OF P.lBSENGER-DAM.lGES.
a.
S.un-EVIDENCE OF INJURIES.
The plaintiff having been forced by threats to jump from the train while it waa rapidly on a dark niKht, evidence ia admissible that he at the time afflicted with a rupture. though it was unknown to the conductor, and did not aggravate the injury sustained; the evidence being competent for the purpose of aacertaining tb.e extent of his mental suffering aa an element of damages.