Kirban v. Johnston , 5 Mich. App. 85 ( 1966 )

Burns, J.

The plaintiffs appeal from an order of the circuit court permitting the defendant as administratrix of her husband’s estate to take discovery depositions of the plaintiffs without waiving plaintiffs’ disqualifications under the dead man’s statute.^*

These actions were commenced as separate suits on July 23, 1962, against Harvy IT. Johnston and Marjorie Johnston, his wife, as the result- of injuries sustained by plaintiffs in an automobile collision which occurred on February 11, 1962. The Kirban vehicle was owned by plaintiff Eleanor Kirban. At the time of the accident it was operated by Harry N. Kirban and occupied by Eleanor Kirban, plaintiffs’ 13-year-old daughter, Elaine Kirban, and Mary Beth Walsh, Mrs. Kirban’s 12-year-old niece.

Defendant Marjorie Johnston owned the automobile which at the time of the accident was being driven by Harvey H. Johnston. Biding with Mr. Johnston were his 3 children who were 2, 3, and 5 years of age.

So far as is known there were no witnesses to the collision other than the occupants of the two automobiles. The Johnston children, because of their tender ages at the time of the collision, remember nothing about it.

On January 17, 1963, Harvey H. Johnston committed suicide. Mrs. Johnston was made a defendant in each of these cases in her capacity as special administratrix of her husband’s estate, and by virtue of being the owner of the Johnston automobile.

The 2 cases were ordered tried separately and as the trial of Mrs. Kirban’s case drew near, defense counsel arranged to take the depositions of Mrs. Johnston, Dr. and Mrs. Kirban, Elaine Kirban and Mary Beth Walsh. Mrs. Johnston’s deposition was taken and the Kirbans were sworn, but their depositions were not taken nor were those of Elaine Kirban or Mary Beth Walsh, because plaintiffs’ counsel would uot consent to defendant’s inquiry into matters equally within the knowledge of the deceased Harvey H. Johnston without waiver of the. dead man’s statute. , ■ ■;

Defense counsel indicated he did not wish to waive the dead man’s statute, and then sought a court ruling on the matter. In each case defense counsel obtained a court order which stated:

“It is hereby ordered that the defendants be .allowed to take the discovery deposition of the plaintiff as well as any other parties covering matters which may he equally within the knowledge of the deceased, Harvey H. Johnston, as set forth-in CLS 1961, § 600.2160 (Stat Ann 1962 Rev’§ 27A.2160) and that the taking of such depositions shall not waive thfe rights of the defendants to. object to testimony tif the plaintiff or other parties .from whom such depositions are taken which may he equally within the knowledge of the deceased at the time of the trial of this case.” '

From these orders the plaintiffs appeal.

Plaintiffs first claim that the dead man’s statute cannot be invoked by the representative of one who .commits suicide. A reading of the statute, however, makes no distinction -as to the cause of death, and if the legislature had intended such a differentiation, we feel it would have so provided.

The second issue, whether the opposite party may be 'required to submit to discovery without defendant waiving the disqualification under the dead man’s statute, has been disposed of in Banaszkiewicz v. Baun (1960), 359 Mich 109. Although there was no suicide involved in that case, Mr. Chief Justice Pethmers stated at pages 115 and 116:

“Court Rule No 35, § 6 (1945), in.providing for pretrial depositions and discovery, permits examination of the deponent only ‘regarding any matter, not privileged and admissible under the rules of evidence governing trials, which is relevant to the subject matter involved in the pending action.’ It is suggested that this limitation of the examination to matters admissible under the rules of evidence governing trials, denies to the protected party the right to examine the opposite party on discovery as to matters equally within the knowledge of the deceased concerning which the latter is prohibited by statute from testifying at trial. It will be noted, however, that, at least so far as matters not privileged are concerned, the limitation pertains not to the identity, qualifications, or competence of a witness but to the competency of the evidence and its relevance to the subject matter of the litigation. This limitation was intended to prevent fishing expeditions into areas unrelated to the cause of action, not to impede a party in discovering from any person, whether competent as a witness or not, all facts and information, not privileged, which are relevant to that cause of action. Indeed, it is the gaining of such information, from whatever source, that the rule was designed to facilitate.”

GCR. 1963, 302.2(1) provides:

“Persons taking depositions unless for good cause otherwise shown as provided by sub-rules 306.2 and 306.4, shall be permitted to examine the deponent regarding any matter not privileged which is admissible under the rules of evidence governing trials and relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party.”

Nothing in the court rules adopted subsequent to the Banaszkiewicz Case, supra, changes the scope of the discovery process. See Koenig v. Lake Shore, Inc. (1965), 376 Mich 131.

In the present case there were apparently no witnesses to the accident other than the occupants of the Kirban automobile. Mr. Johnston is dead, and the Johnston children, because of their tender ages, remember nothing. Basic fairness requires an order such as was issued by the circuit judge.

Judgment affirmed. Costs may be taxed to the plaintiffs.

McGregor, P. J., and Quinn, J., concurred.

* CLS 1961, § 600.2160 (Stat Ann 1962 Rev § 27A.2160).