Eastwood, Goldmann and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
This is an automobile negligence case in which a substantial verdict was rendered by the jury against Pennsylvania Greyhound Lines, Inc., its driver, Louis Everett Miller, and Irving Rosenthal. The bus company and its driver have appealed.
A single ground of appeal is presented. Did the Law Division of this court err in permitting respondent to read the deposition of a witness, Robert G. White?
It is undisputed that White was a resident of the State of New York when his testimony was taken and at the time of the trial. Plaintiff was desirous of procuring his deposition for trial purposes and it was done by written stipulation of the parties. This stipulation recites:
"It is hereby stipulated and agreed by and between counsel for the respective parties, that the oral depositions of Robert White, a resident of New York, a material witness, be taken" etc. * * * "said depositions to be used as evidence in the above-entitled cause."
White and a young lady who afterwards became his wife were in one of a number of vehicles that were involved in the accident in question. He was connected with the United States Army as a screen writer and apparently was subject to call which would take him away from New York.
The trial, which began on March 10, 1952, lasted eight days. On the first day Mrs. White was in court at the instance of the respondent and in the afternoon of March 11 she was called as a witness. On this day it is undisputed that her husband was in court with her. A colloquy between court and counsel two days later indicates that she was not well and that White accompanied her from New York for that reason. Counsel for respondent concedes that he learned of the presence of White some time after the noon recess of March 11. Appellants' counsel was likewise aware then that he was with Mrs. White. However, he was not called to testify and neither party brought his appearance to the attention of the court. Mrs. White was the last witness of the day and at the conclusion of her examination a recess was taken until the following morning.
White never returned and it is admitted that he was in New York when his deposition was offered for reading two days later. When this action was undertaken appellants objected on the ground that White's appearance in court made it obligatory on counsel to call him as a witness or to serve a subpoena on him to secure his attendance the next day. It was urged that the presence in court to counsel's knowledge removed any right to use the deposition under
Rules 3:26-4 and 3:29. However, the objection was overruled and the reading proceeded.
On March 18 appellants moved to strike the deposition from the record and the matter was extensively argued. It appeared during the course of the discussion that a suggestion of the court to respondent's counsel that he communicate with White in New York and endeavor to persuade him to return to New Jersey, had been complied ...