127 F. 723 | U.S. Circuit Court for the District of Eastern Missouri | 1904
Two questions of some importance have been presented for decision in. this case, the first being whether a special commissioner who has already been appointed to take the examination of certain witnesses may compel their appearance before him by attachment; and the second is whether the court, on the showing made, should grant a dedimus potestatem to take the deposition of certain other witnesses, under section 866 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 663].
The facts relative to the decision of the first question are these: The case was instituted in the circuit court for the city of St. Eouis, Mo., and while there pending a notice was given by the plaintiffs’ attorney, pursuant to the laws of the state, to take the depositions of certain witnesses, and subpeenas for the witnesses were duly issued and served. The defendant company thereupon caused the case to be removed to this court on the ground that the plaintiffs were aliens and the defendant a New Jersey corporation. After the removal of the case to this court, the defendant applied to- this court for the appointment of a special commissioner before whom the witnesses who had been subpoenaed to testify might be examined, pursuant to the provisions of section 2883 of the Revised Statutes of Missouri for 1899. Such appointment was made at the instance of the defendant, the court being of opinion that the act of Congress of March 9, 1892, c. 14, 27 Stat. 7 [U. S. Comp.- St, 1901, p. 664], making it lawful to take
The court is of opinion that while there may be some merit in the defendant’s contention that such conditions did not exist or were not shown as warranted the taking of depositions under federal laws, yet that such objection was effectually waived by the action of the defendant in procuring the appointment of a special commissioner. Notwithstanding the various provisions of the federal statutes on the subject of taking depositions, it is always competent for parties litigant to waive the benefit of the same, precisely as they may waive objections to incompetent testimony and the benefit of all rules of evidence that are intended for their protection. It is always competent for a litigant to waive such objections to a deposition as the law enables him to make, and such objections to the competency of evidence as he might properly urge. , Therefore, when the defendant procured the appointment of a special commissioner to take the examination of witnesses who had already been summoned, it consented that the examination might proceed before the commissioner, and waived all objections to such proceeding. The law will not permit a litigant to obtain the appointment of an officer to take the examination of certain witnesses, and, when they are produced, deny the right of the officer to proceed with the examination.
It is unnecessary, in this instance, to decide whether the removal of a case from the state to the federal court interrupts the further taking of depositions that are in progress or the taking of depositions that have been noticed but not begun, for in this instance the defendant consented that the removal should not have that effect, and it is bound by such consent. It is now limited to its right to object to the testimony that may be elicited before the commissioner on the trial of the case, for the reasons mentioned in sections 863, 865 [U. S. Comp. St. 1901, pp. 661, 663]; that is to say, because the witnesses are not dead or gone out of the United States, or to a greater distance than 100 miles from the place where the court is sitting, or that they are not laboring under the disabilities of age, sickness, bodily infirmity, or imprisonment which prevent their personal appearance.
. Relative to- the authority of a special commissioner to enforce the
The application for a dedimus potestatem to take the testimony of other witnesses than those already subpoenaed to appear before the special master is based on the following grounds: That the action is one to recover damages for negligently causing the death of the plaintiffs’ father; that the plaintiffs are minors and are nonresidents of the state of Missouri; that the grounds of such negligence, charged in the complaint, consist of a failure to instruct the deceased regarding the dangers of his employment, he being an ignorant and illiterate man, and regarding the signals which might be given to warn him of danger, and in a failure on the part of the defendant to adopt proper rules and regulations for the safe conduct of its business, which is said to have been very complex; that the only jDersons who can give information as to the death of their father and the rules and regulations in pursuance of which the defendant’s business was conducted at the time of his death are persons who are in the employ' of the defendant ; that while the plaintiffs are satisfied of the truth of the matters alleged in their complaint, yet that it will be necessary to establish them by the testimony of the defendant’s servants, and that it is only by such testimony that they can show who hired the deceased, and the instructions given him at the time he was hired and subsequently, and the rules promulgated for the government of the defendant’s business; that the defendant has refused to permit a representative of the plaintiffs to enter its works and examine the place of the accident; that at the inquest over the remains of the deceased five eyewitnesses to the accident testified, two of whom, since the accident, have left the state, and whose whereabouts cannot now be ascertained; that another of these eyewitnesses cannot now be found; and that the plaintiffs verily believe there is danger of losing the testimony of other important witnesses through death, disease, or accident. These statements are duly verified by the oath of the applicant, and the prayer for a dedimus is founded thereon.
In the case of Ex parte Fisk, 113 U. S. 713, 722, 5 Sup. Ct. 724, 28 L. Ed. 1117, it "was held, in substance, that inasmuch as section 861 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 661] declares that “the mode of proof in the trial of.actions at common law shall be by oral testimony and examination of. witnesses