Rigbyv.Lake Cty

Supreme Court of OhioApr 10, 1991
58 Ohio St. 3d 269 (Ohio 1991)

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1 Summary

No. 89-2205

Submitted December 18, 1990 —

Decided April 10, 1991.

Civil procedure — Depositions — Civ. R. 32(D)(4) — Errors and irregularities in deposition effectively waived, when.

APPEAL from the Court of Appeals for Lake County, No. 13-119.

On November 9, 1986, Christine Darling was operating her 1976 AMC Pacer on River Road in Lake County. Also traveling in the vehicle were three of Darling's children, Justin, Joshua and Joline. Upon negotiating a curve in the road, Darling lost control of the vehicle, crossed the center line and collided with a pick-up truck. The impact of the collision threw Justin out of the vehicle and killed him. Another child, Joshua, sustained serious injuries to his head with resultant brain damage.

Plaintiffs-appellees, Roger and Betty Rigby, the parents of Darling, filed this action in the court of common pleas in their respective capacities as administrator of the estate of decedent Justin Darling, and as guardian of the estate of Joshua Darling. In their complaints, plaintiffs alleged negligence on the part of defendant, Lake County, in its design, construction, improvement and maintenance of River Road, and negligence on the part of defendant-appellant, American Motors Corporation ("AMC"), in designing and constructing a vehicle which, inter alia, enhanced the injuries sustained in the accident.

Defendants thereafter filed third-party complaints against Darling, as well as cross-claims against each other. The cause proceeded to trial, and during that time, the plaintiffs settled their claims against all Lake County defendants. The trial judge informed the jury of the settlement, and consequently the county was dismissed from the case with respect to plaintiffs. AMC's claim for indemnity against the county remained, and during trial AMC introduced an expert witness, Andrew E. Ramisch, by way of deposition. Counsel for plaintiffs objected to the reading of the deposition before the jury on the grounds that the deposition could not be used since it did not contain a signature of the deponent or a waiver of signature. Counsel for AMC stated at that time that the deposition was for use in its cross-claim against the county for indemnification. The trial judge overruled the objection and permitted counsel for AMC to read the deposition of Ramisch in open court. Subsequently, a verdict was returned by the jury in favor of AMC.

Apparently, although the record on this point is unclear, AMC's cross-claim against Lake County for indemnification was dismissed shortly before the cause was submitted to the jury.

Upon appeal, a divided court of appeals vacated the judgment and remanded the cause for a new trial. The appellate court held that Civ. R. 30(E) required that the deposition be signed, and relied on State v. Kindle (1890), 47 Ohio St. 358, 24 N.E. 485, for the proposition that the approval and signature requirement of the deponent in this context assures that the written reproduction of the words of the deponent will be as accurate as possible, and thus lessens the chance of altering their nature through misstatement. The court below opined that introduction of the deposition may have had a deleterious effect on plaintiffs' case by, inter alia, leading the jury to believe that the county was the sole party responsible for the injuries incurred as a result of the accident. The appellate majority then noted that "* * * subsequent to the proceedings in the trial court and subsequent to the filing of the notice of appeal before this court, * * * [AMC] has presented an evidentiary matter which reflects that the deposed witness, on February 25, 1988, signed a form wherein he acknowledged that he had read the deposition and that, to the best of his knowledge, it was true and accurate with the exception of two specified minor errors. This is evidence dehors the record and is beyond our consideration in view of the fact that it was not presented to the trial judge for his consideration."

Civ. R. 30(E) provides:
"Submission to witness; changes; signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within seven days of its submission to the witness, or within such longer period, not exceeding twenty-eight days, to which the parties agree, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part."

The dissenting appellate court judge opined that the cause should be remanded to the trial court for an evidentiary determination of whether the expert witness reviewed and acknowledged the deposition as alleged by AMC.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Ulrich Cantor and Abraham Cantor, for appellees.

Crabbe, Brown, Jones, Potts Schmidt, Charles E. Brown and Steven B. Ayers, for appellant.

While we appreciate the caution and concern expressed by the court of appeals below regarding unsigned or unacknowledged testimony submitted before a jury, we do not believe that the trial court erred in admitting the deposition at issue under the facts and circumstances of this case. Accordingly, for the reasons that follow, we reverse the judgment of the court of appeals.

Ordinarily, a trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence. The admission of relevant evidence pursuant to Evid. R. 401 rests within the sound discretion of the trial court. E.g., State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. An appellate court which reviews the trial court's admission or exclusion of evidence must limit its review to whether the lower court abused its discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 1233, 1237. As this court has noted many times, the term "abuse of discretion" connotes more than an error of law; it implies that the court acted unreasonably, arbitrarily or unconscionably. E.g., Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.

Plaintiffs argue that the admission of the Ramisch deposition, without a signature or waiver thereof, had a prejudicial effect on their case against AMC and would be inconsistent with substantial justice. However, we believe the evidence indicates otherwise. Plaintiffs alleged that AMC's negligence in designing or manufacturing its product "enhanced" the injuries sustained by the Darling children. AMC countered that if it were negligent at all, then it had a right to be indemnified by the county with whom plaintiffs had settled since, theoretically, plaintiffs' claim against AMC would not have arisen but for the negligence of the county. Hence, AMC had to prove the county's negligence by a preponderance of the evidence and stated at trial that it proffered Ramisch's expert testimony deposition for that purpose. While AMC read the entire deposition into evidence, the appellate court majority below and plaintiffs herein quote only that part of the deposition wherein the deponent-expert stated that he believed the county's negligence was the cause of the accident. While, admittedly, the expert's opinion in this instance does not support plaintiffs' claim against AMC, the entire deposition is nevertheless relevant with respect to AMC's claim for indemnity from the county, and the trial court did not abuse its discretion in admitting such expert deposition testimony. In any event, a careful review of the entire deposition reveals that the expert stated at least twice that the driver and the vehicle involved must also be considered when attempting to determine the cause of a particular accident. While the particular passage quoted by the court of appeals would appear to undermine plaintiffs' claim against AMC since it tends to place the entire fault of the accident on the county, our review of the entire deposition indicates that plaintiffs were not unduly prejudiced by its admission into evidence. In our view, even if it were error to admit the deposition in this context, such error would have been harmless pursuant to Civ. R. 61.

The passage from Ramisch's deposition extracted by the court of appeals is as follows:
"Q. Your conclusion which you have stated before has not been changed but indeed has been reinforced, that is, but for the failure on the part of Lake County to provide a reasonably safe road Justin Darling would not have been killed and Joshua Darling would not have been seriously injured; is that still your conclusion?
"A. Yes, it is still my conclusion."

Notwithstanding the foregoing, we hold that plaintiffs waived any error in the admission of the deposition by their failure to file a motion to suppress the deposition before the trial court.

AMC contends that since the deposition was filed with the trial court four days before its use at trial, thereby giving plaintiffs notice of its intended use, the plaintiffs should have filed a motion to suppress the deposition as required by Civ. R. 32(D)(4), instead of merely objecting to its introduction into evidence.

Civ. R. 32(D)(4) provides:

" Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rule 30 and Rule 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained." (Emphasis added.)

Although not recently addressed by this court, the principle emphasized above in the foregoing Civil Rule and its predecessor provisions ( e.g., former R.C. 2319.29) has been uniformly adhered to in this state. See Crosby v. Hill (1883), 39 Ohio St. 100, 105; Crowell v. Western Reserve Bank (1854), 3 Ohio St. 406, paragraph one of the syllabus; Cowan v. Ladd (1853), 2 Ohio St. 322, paragraph one of the syllabus; Ralston v. Stout (1965), 1 Ohio App.2d 491, 494, 30 O.O. 2d 508, 510, 205 N.E.2d 405, 408; and Nickey v. Brown (1982), 7 Ohio App.3d 32, 35-36, 7 OBR 34, 38-39, 454 N.E.2d 177, 182.

In Cowan, supra, for example, it was held that objections were waived despite multitudinous defects in a deposition introduced into evidence, where the opposing party failed to object to the deposition prior to trial.

Under the particular circumstances of this case, we find that plaintiffs were aware of the intended use of the Ramisch deposition prior to its use at trial, and plaintiffs' failure to file a motion to suppress the deposition pursuant to Civ. R. 32(D)(4) effectively waived the claimed error that the deposition evidenced neither a signature nor a waiver thereof. As such, since plaintiffs failed to move with due diligence to suppress the Ramisch deposition, the trial court did not err in its admission of said deposition at trial.

Accordingly, the judgment of the court of appeals is hereby reversed.

Judgment reversed.