(dissenting). In this case the Court affirms an order which collides directly with Court Rule No 31, § 1, and Court Rule No 35, § 6, subd (d) (1945).1 What is more, today’s decision renders a time-tried rule of evidence one of discretionary application rather than one of rightful use.
First: The Court makes of a statutory rule, the design of which is a shield for “protected parties,” a sword each such party may employ whenever the pretrial judge assumes to forge the claymore for him.2 Thus, in any circuit where the pretrial judge chooses not to arm the protected party as was done here, the latter’s act of taking — before trial or at trial — the opposite party’s otherwise objectionable testimony will, as before, open .the evidentiary door. Elsewhere, judicial discretion at pretrial being inclined the other way, the same act will open the door when and only when the deposition taker, weighing advan*119tage against disadvantage before or during trial, chooses to unlock it. This, to me, is the injustice of unequal justice. Under law? Why of course. Look at the majority opinion handed down this day.
Today’s ruling opinion emasculates in part, for no justifiable reason, that which properly has attended the dead man’s statute for at least 60 years. And, so far as “traps and surprises” are concerned, it provides quite a supply of such tactical weapons for the protected party. His adversary will never know (until it happens if it happens during trial) whether he—the deposition taker—will elect to use or withhold the deposition so taken. The over-protected party may read or prevent its reading in evidence, but the other may do neither. This is quite a whip hand for one and a handicap for the other, as veteran trial lawyers will at once recognize. The reason is that one party is given exclusive control over possibly decisive evidence and the right to offer or withhold it as strategy may dictate. Incredibly, too, he is given the elective right to object, at the trial, to his own depositional questions and the testimony elicited thereby. Thus the deposition he has taken is not a deposition according to historic and present day understanding of the noun, that is, a means of replacing the viva voce testimony of a witness. It has become a sort of pretrial approved means of taking a statement from witness or party, the admissibility of which is to be up to the taker and not the presiding judicial officer.
Second: Turning now to our quoted rules of court. From as far back as old Court Buie No 41 a deposition, once it is validly taken and filed, has constituted evidence either party may read into the trial record. Beferring to what is now Court Buie No 31, § 1 *120(1945), this Court said (Chicago College of Osteopathy v. Littlejohn, 234 Mich 528, 538):
“This rule was referred to with approval in McDonald v. Smith, 139 Mich 211, 220. It was doubtless adopted in view of the holding by Shaw, C. J., in Dana v. Underwood, 19 Pick (36 Mass) 99, 104, that a deposition taken by a party who failed to offer it might not be read by the opposite party except by consent.
“The plaintiff was under no obligation to offer the deposition as a part of its case. It could not withdraw it from the files. Unless suppressed by the court, the defendants were at liberty to use it.”
' From here on, however, section 1 of Court Rule No 31 (likewise quoted section 6 of Court Rule No 35 ) no longer means what it says. The unconditional right to offer a properly taken deposition in evidence, attested as it is by such rules, is to be taken away when and if the pretrial judge happens to be of such will. What, perforce, is to prevent expansion of this case-made practice beyond the evidentiary realm of the dead man’s statute? May not the pretrial judge authorize the depositional taking of hearsay testimony, incompetent testimony, privileged testimony, and all such like in all manner of cases, much as is now permitted in some of the Federal circuits under the Federal rules of practice? Have we not arrived, by today’s decision, at open repudiation of that which was twice avowed to the profession when the 1952 and 1958 amendments of Court Rule No 35 were successively drafted for and considered by this Court, namely, that said section 6 was designed to provide a much narrower scope of deposition practice than corresponding Federal practice and that it restricted examination of the deponent to such matters as are “admissible under the rules of evidence *121governing trials” (quotation from section 6[b] of Court Rule No 35) ? Examine, in such connection, Mr. Honigman’s comment upon the “basic differences” between Michigan pretrial practice and Federal pretrial practice, particularly this:
“Secondly, under the Federal rules, testimony in a discovery proceeding need merely be' relevant to the subject matter, whereas under the Michigan rule, the evidence must be of a nature which wotild be admissible at the trial.” (Honigman, Michigan Court Rules Annotated, 1959 pocket supplement, page 78.)
Finally, and with regard to said Court Rule No 31, this conclusion of the author appears on page 79 of the same pocket supplement:
“No specific reference is made in this rule to Court Rule No 31, or to the statutes covering the taking of depositions, CL 1948, §§ 617.6-617.13 (Stat' Ann §§ 27.854-27.861). It would seem, therefore, that neither Court Rule No 31, nor the deposition statutes are automatically overridden by the provisions of the new rule.”
Our majority having made up its collective mind, there is no meaningful occasion for elaboration of these convictions beyond noting that the starry-eyed theories of pretrial practice have; grown to quite monstrous proportions in some quarters, so much so that the trial lawyer of the 1970’s may well expect— if such growth continues — outright limitation of his professional function to a meeting with the pretrial judge for the purpose of receiving binding instructions respecting the work he is to do upon the case, and the way he is to do it, between such meeting and final judgment. And I must add, for this case of Banaszkiewicz, that if alteration of any of our rules of evidence has become judicially desirable, such alteration should be accomplished by adoption of uniformly effective and precedently published new court *122rules. The profession has a right to expect no less. I would reverse.
Kelly and Kavanagh, JJ., concurred with Black, J. Souris, J., took no part in the decision of this case.(Rule No 31, § 1.)
“When a deposition has been taken by either party, it may at any time be read by the other party on the trial.”
(Rule No 35, § 6, subd [d].)
“(d) At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used, against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:
“(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
“(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party may be used by an adverse party for any purpose."
This sword-from-a-shield expression comes from Fox v. Barrett’s Estate, 117 Mich 162, 164, 165, wherein the Court declared in detail the purpose of our rule that the protected party may employ the shield of the statute yet may not make of it “a sword in his hands.”