This is an action brought by the appellee against the appellant to recover damages for the death of appellee’s decedent caused by a collision between an automobile operated by the appellee’s deeedent and a truck operated by an agent of the appellant.
Originally filed in the Superior Court of Vigo. County the case:was venued to the Sullivan Circuit Court, where it was tried to a jury. The jury returned a verdict for the appellee against appellant, awarding appellee the sum of $60,000.00. Judgment was rendered accordingly. The overruling of appellant’s motion for a new trial is the only error assigned on appeal. Appellant’s brief discusses many of the eighteen grounds stated in its motion for néw trial but Argument; is . devoted largely to alleged ..error in, admitting into evidence, over appellant’s objection, parts of the conditional oral examination of one Meredith Lee. The witness Lee never was a party to this action. He was riding in decedent’s automobile at the time of the collision. His conditional examination had been taken by appellant in Lee’s separate action against appellant in which Lee sought recovery of damages for his own injuries. That case was compromised and settled prior to the trial of this case.
One of appellant’s grounds of objection to the admission of this conditional examination was that its use by appellee, without appellant’s-consent, is prohibited by Ind. Acts 1881 *691(Spec. Sess.) ch. 38, § 348, being Burns’ Ind. Stat. Ann. § 2-1730. Which, in pertinent part, reads:
“... [t]he examination ... may be read by the party taking it, at Ms option; but, if not read, the party causing the examination, shall pay the costs thereof.” (Emphasis added).
The appellant argues that this statute makes the examination admissible, if at all, solely at appellant’s option. The very fact that the language of the statute seems to be so clear as to permit of no other interpretation may account for the fact that there is no case law in point. We see no room for construction. We are constrained to hold that, if this provision of the statute has not been repealed or modified by other legislation in effect at the time of trial, it was error to deny appellant this option.
By Chapter 292, Acts of 1961, the General Assembly of Indiana made Rule 26, Rules of Civil Procedure for the United States District Courts (as therein modified), a part of the law of Indiana. (Burns Ind. Stat. Ann. §2-1533 — §'2-1540 inclusive). This act provides that a party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories, for discovery, for evidence, or for both. Nothing in the Act purports to limit to. the party taking it, the option to decide whether an adverse party’s deposition shall be offered and admitted into evidence. On the contrary, section 4 (Burns § 2-1536) by its sub-paragraph (c) (3) provides “ [t] he deposition of ... a party, may be used by any party for any purpose if the court finds . . . [t]hat the witness is unable to attend or testify because of . . . sickness ... or imprisonment.”1
*692If, by thus adopting Rule 26, the Legislature has repealed the conditional examination provisions of the 1881 Civil Practice Act, a part of which we have quoted, then it may be that what has been referred to as the conditional examination of Meredith Lee was, in fact, his deposition and appellant owns no option to exclude it from evidence.
The Indiana Act does not contain the language found in paragraph (a) of Federal Rule 26 which says that “ [depositions shall be taken only in accordance with these rules”.2 Neither does the Indiana Act contain any repealing clause. Instead it contains this disclaimer of repeal: “This act shall not be construed as a repeal of any law not directly in conflict herewith, but rather as supplemental to any other law governing depositions and to that effect this law shall be given a liberal interpretation.”3
We see no reason for considering the conditional examination statute to be “directly in conflict” with the Indiana statutory version of Rule 26. In fact, it is highly doubtful if a conditional examination of a party, as provided for in the 1881 (Spec. Sess.) statutes is a deposition at all. We regard the conditional examination provided for by the 1881 (Spec. Sess.) Civil Practice Act, particularly the option provision, to be a highly desirable discovery tool. It tends to promote settlement of civil litigation thereby relieving courts of the burden of unnecessary trials. It does so by permitting either party to learn what the other party knows about the case, under oath, and with an authenticated record for impeachment purposes if needed, yet without the risk of creating evidence against the examiner. Quite obviously there may be many instances in which alert and wary counsel would not interrogate an adverse party under oath, prior to trial if the only way it could be done were by deposi*693tion. Lee’s case could well have been one in which opposing counsel would not have wished to preserve and perpetuate Lee’s testimony for any purpose or any use except at their election. Appellee’s counsel, who was also Lee’s attorney, was quite candid in oral argument in alluding to facts which could have given rise to a higher than average chance that Lee would not be available as a witness at any given time. It is also possible that failure to take the examination could have resulted in failure to agree upon a settlement.
We hold that an examination of an adverse party taken prior to trial pursuant to the 1881 statutes (Burns Ind. Stat. Ann. § § 2-1728, et seq.) providing for conditional examinations, when otherwise admissible, is admissible only at the option of the party taking it.
Appellant has advanced many other arguments for the exclusion of Lee’s examination in the case at bar, but the conclusion we reach on the option provision of the statute makes it unnecessary to discuss them. No inference should be drawn as to the admissibility of Lee’s conditional examination if it had been offered by the appellant. Nor should any inference be drawn as to admissibility in this case of Lee’s deposition, if his deposition (not his conditional examination) had been taken in his case and not in this case.
We do not believe the other errors alleged are likely to arise on a retrial of this cause and, therefore, they do not require discussion in this opinion.
The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Pursuant to statute, costs are assessed against the appellee.
Judgment reversed.
Pfaff, C. J., and Hoffman, J., concur; Sharp, J., dissents with opinion.
. Appellant produced evidence, before offering the conditional examination of Lee, that Lee was then confined to the isolation ward of a Terre Haute hospital with severe pulmonary tuberculosis which was highly contagious and that his doctor advised that his deposition should not be taken.
. Burns § 2-1533 is the Indiana counterpart of the federal paragraph (a).
. Bums § 2-1540.