Wells, Fargo & Co. Express v. Allbright , 78 Ind. App. 574 ( 1922 )

Nichols, J.

— This action was commenced in the Martin Circuit Court,' and on change of venue, tried in the Daviess Circuit Court. Appellee’s complaint was in seventeen paragraphs, for damages resulting from the alleged negligence of appellant in its delay in seventeen shipments of rabbits, the same being consigned to two respective consignees, one in New York, and the other in Newark, New Jersey.

It is averred in the complaint that by reason of the delay, some of the rabbits arrived in damaged condition, and others too late for sale .under the laws of the state to which they were shipped. Appellant answered in eight paragraphs, the substance of which we do not need to set out. There was a trial by the court, with finding and judgment for appellee, from which after motion for a new trial was overruled this appeal. The court’s ruling on the motion for a new trial is the only error assigned.

1-3. Appellant first contends that the evidence does not show that appellee was the real party in interest. But, as appellant failed to raise this question in the trial court, it is waived. It cannot be first raised in this court. Over the objection of appellant, appellee was permitted to answer, from twenty-five years experience, as to the average period of time required for shipment by express from Shoals, Indiana, to Newark, New Jersey and to answer the same question as to shipments to New York. These answers were made with reference to the time of the trial which was in November, 1920, while the shipments complained of were in December, 1917. The question should have been confined to the time that the shipments were made, as conditions were substantially different at that time from what they were at the time of the trial. The court takes judicial notice of the fact that the war with Germany was in progress at the time the shipments were made, and generally of its interferences with railroad traffic. 17 Am. Ency. 407. ■ This condition, however, might have been developed on cross-examination of appellee.

4. Appellant made its motion to suppress the depositions of each of two witnesses taken March 17, 1920, which were read in evidence. These depositions were taken without leave of court first had and obtained, and while other depositions of the same witnesses taken by the same party in this case were on file and in effect. It is the law that a second deposition of the same witness cannot be taken while the first is on file and in full force and effect, without leave of court. Kirby v. Cannon (1857), 9 Ind. 371; Addleman v. Swartz (1864), 22 Ind. 249; Woodruff v. Garner (1872), 39 Ind. 246; Scott v. Scott (1890), 124 Ind. 66, 24 N. E. 666; Elliott, Evidence §1164. Authorities from other states on this question are cited in 18 C. J. p. 730. It follows that it was error to permit appellee to read in evidence depositions that should have been suppressed. For these errors the judgment must be reversed. Appellant presents error as to the amount of recovery, but we do not need to discuss this question. The same error is not likely to occur again.

The judgment is reversed, with instructions to grant a new trial, and to sustain appellant’s motion to suppress the second depositions, which were taken without leave of court.