The trial court directed a verdict of no cause for action as to Burditt. The jury returned *559 a verdict of no cause for action as to Bоby. Judgment entered on the verdicts. Plaintiff’s motion for a new trial as to Boby was denied and plaintiff appeals from the order denying the new trial.
Plaintiff states the first two issues on appeal as follows:
“Mаy plaintiff’s offer of defendant’s discovery deposition be received without making the defendant plaintiff’s witness?”
“May plaintiff, after receipt into evidence of defendant’s discovery deposition on plaintiff’s offer, call defendant for cross-examination?”
A full understanding of thesе issues and their resolution requires that they be considered together and in context with trial procedure adopted by plaintiff.
Plaintiff’s decedent died as the result of injuries received in a motor vehicle accident December 7, 1963, on Dixie highway in Saginaw county. The complaint аlleged decedent was a nonguest passenger in her automobile being driven in a northerly direction by defendant Boby. It further alleged that this cаr went out of control because of Boby’s reckless and negligent driving, crossed the center line and entered the southbound lane where it wаs struck by defendant Burditt’s motor vehicle as it proceeded south. The complaint specified several items of negligence attributablе to Burditt.
In his answer, Boby denied he was driving the automobile involved and also pleaded this fact together with an allegation of decedent’s nеgligence as an affirmative defense. Burditt’s answer denied any negligence and pleaded affirmatively that the negligence of the driver оf plaintiff’s vehicle was the sole cause of the accident.
The only eyewitnesses to the accident were Fred Bosenberger, whо was following plaintiff’s car; *560 Harold Wallner, who was following the Bnrditt vehicle; Roby; and Bnrditt. Plaintiff: called Rosenberger as a witness but did not ask him any questions rеgarding the identity of the driver of plaintiff’s car. Plaintiff also called Wallner but he did not know who was driving plaintiff’s vehicle. Roby’s testimony as to the driver of рlaintiff’s automobile was barred by the statute. 1 If plaintiff were to establish the identity of the driver of the car in which plaintiff’s decedent was riding, she then had to do it by the testimony of Burditt, and any available physical evidence tending to establish that fact.
Plaintiff had taken Burditt’s discovery deposition, and although Burditt was present in court, plaintiff did not call him as a witness initially but did offer the discovery deposition in evidence without announcing the purpose therefor. Opposing counsel were afforded an opportunity to determine whether the deposition contained inadmissiblе evidence, and a conference between court and all counsel resulted in a ruling that parts of the deposition were inadmissible. Thus restricted, the deposition Avas received and read into evidence. Later in the trial, plaintiff called Burditt for cross-examination undеr the statute. 2 Objection of defense counsel to this procedure was sustained and cross-examination was not permitted, exceрt on a separate record. 3 Plaintiff then examined Burditt directly.
Plaintiff contends the trial court erred in holding that under the above procedure, Burditt became plаintiff’s witness and was not subject to cross-examination by plaintiff. He supports this contention by the language of GCR 1963, 302.6 and 302.4(2) which is as follows:
*561 “.6 Effect of Talсing or Using Depositions. A party shall not he deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in subrule 302-.4(2).”
“.4(2) The deposition of a party or anyone who at the time of the transaction or occurrence out of whiсh the action arose or at the time of taking the deposition was an officer, director, employee, or agent of any party may be used by an adverse party for any purpose.”
It is clear that the exception provided in 302.6' in regard to the use of the depоsition of a party by an adverse party as described in 302.4(2) is for the purpose of having the use of depositions conform to the practice applicable if the deponent was called as a witness. Plaintiff could have called Burditt as his witness, or he could have cаlled him for cross-examination under the statute,
supra,
and not made him his witness. If the latter result is desired, counsel is required to announce the purpose for calling the witness or offering the deposition.
Mally
v.
Excelsior Wrapper Co.
(1914),
Plaintiff next contends the trial court erred in ruling inadmissible parts of Burditt’s deposition. *562 These parts were excerpts of Burditt’s testimony on deposition relating to statements made by him in extrajudicial statements to the State police and an insurance adjuster. In the testimony on deposition, which was excluded at trial, Burditt confirmed the following questions and answers in his statement to the State police:
“Q. William, did you see the passengers in the car before you hit?
“A. Yes sir.
“Q. Could you tell me the sex оf the passengers and where they were sitting in the car?
“A. A male and a female, the woman was sitting on the passenger’s side where we hit.
“Q. Then you saw this woman in the car before you hit?
“A. Yes.”
He likewise confirmed the following questions and answers in a statement to the adjuster.
“Q. The question I am asking you and the answer is correct?
“A. Yeah.
“Q. Now, the next question that was asked you: ‘I see, do you know who was driving the other car?’ and the answer, ‘Well I’ll tell you the same as I told the State Police and his wife, the man was not driving the car’?
“A. The woman was not driving the car.
“Q. Excuse me, ‘The woman was nоt driving the car,’ is that correct?
“A, That’s right.
“Q. Now, the next question is, ‘The woman was not driving ?” and the answer, ‘Kig*ht, not driving the car’ is that correct?
“A. Uh-huh.”
Plaintiff’s contention cannot be sustained. As stated in 5 Wigmore on Evidence (3d ed), § 1415, p 192:
*563 “It is clear, therefore, that if the witness is present in the court-room at the time when his deposition is offered, the deposition is inadmissible, because there is no necessity for resorting to it.”
To the same effect see
Dunn
v.
Dunn
(1863),
During plaintiff’s direct examination of Burditt, plaintiff requested the right to cross-examine the witness. The request was denied and plaintiff claims this was error. The trial court properly denied this request. No showing was made to indicate the necessity for cross-examination.
Dompier
v.
Lewis
(1902),
The jury found no liаbility. This obviates discussion of plaintiff’s final claim of error with respect to a requested instruction on damages that the trial court did not give.
We find no error. The trial court is affirmed, with costs to appellees.