Edgerley v. Appleyard

• Decision Date: 31 March 1913
• Citation: 86 A. 244,110 Me. 337
• Parties: EDGERLEY v. APPLEYARD.
• Court: Maine Supreme Court

86 A. 244

110 Me. 337

EDGERLEY

v. APPLEYARD.

Supreme Judicial Court of Maine.

March 31, 1913.

Case Reserved from Supreme Judicial Court, Piscataquis County, at Law.

Action by Charles E. Edgerley, as administrator, against Addie A. Appleyard. On reserved questions. Plaintiff nonsuited.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, KING, BIRD, and HANSON, JJ.

John S. Williams, of Guilford, for plaintiff.

Hudson & Hudson, of Guilford, for defendant.

CORNISH, J. The single question argued and presented in this case is whether the testimony of a witness given at a coroner's inquest upon the death of the plaintiff's intestate was admissible in this action, when offered by the plaintiff, the witness having deceased after the inquest and before the trial. If not, the nonsuit ordered by the court is to stand.

We think it was inadmissible, and that its exclusion by the presiding justice was without error.

The common-law rule is well settled in this state that the testimony of a witness, since deceased, given at a previous trial may be received in evidence at a subsequent trial of the same case. (Watson v. Props, of Lisbon Bridge, 14 Me. 201, 31 Am. Dec. 49), and the precise words are not required, but the substance of the whole testimony (Emery v. Fowler, 39 Me. 326, 63 Am. Dec. 627; Lime Rock Bank v. Hewett, 52 Me. 51). This rule is applicable in criminal as well as civil cases, if the previous testimony was given, as in a civil case, at a trial in which the witness was cross-examined by the opposite party, or where there was an opportunity for such cross-examination. State v. Herlihy, 102 Me. 310, 66 Atl. 643. Under the existing system of stenographic reporting, the exact words can be reproduced and the certified copy of the stenographer's notes is made admissible by R. S. c. 84, § 162. State v. Frederic, 69 Me. 400.

This is as far as the decisions have gone in this state; but in well-considered cases in other jurisdictions, and by learned text-writers, the scope of the rule has been somewhat broadened, so as to include the evidence of a deceased witness given, not only on a former trial of the same action, but in a former action involving substantially the same Issues between the same parties, and a mere nominal change of parties is of no consequence, provided the parties in the second action are so privy in interest with those in the former trial that the same motive and need for cross-examination existed. Orr v. Hadley, 36 N. H. 575; Yale v. Comstock, 112 Mass. 267; McInturff v. Insurance Co., 248 Ill. 92, 93 N. E. 369, 140 Am. St. Rep. 153, 21 Ann. Cas. 176; Smith v. Keyser, 115 Ala. 455, 22 South. 149; Green on Ev. ([16th Ed.] enlarged and annotated by Prof. Wigmore) § 163; 2 Chamberlayne, Modern Law of Ev. § 1652 et seq.

"The rules regulating the admissibility of this species of evidence are careful to provide that the party against whom the evidence is now offered, or some one sufficiently identified with his interest to make these rights effective, should on the former trial have confronted the witness whose testimony is now offered, and have had an adequate opportunity for an efficient cross-examination upon the point covered by the testimony which it is now sought to prove by secondary evidence." 2 Chamberlayne, § 1656.

Whether the issue in the two cases is the same or substantially the same is a preliminary question to be decided by the presiding justice, and his ruling thereon is conclusive unless it is based upon some error in law, or is deemed to be an abuse of judicial discretion. Chase v. Springvale Mills Co., 75 Me. 156.

Applying the broadest test above given, we have no hesitation in saying that the testimony of the plaintiff's intestate given at the coroner's inquest was not admissible in the present action, brought against the defendant for alleged negligence.

R. S. c. 140, provides for the holding of coroner's inquests "on dead bodies of such persons only as appear or are supposed to have come to their death by violence, and not when it is believed their death was caused by casualty" (section 1), and then follow the steps to be taken. These proceedings are designed primarily to aid in the detection of crime. The inquest is ordinarily held immediately after the event has happened, and oftentimes before the perpetrator is known or even suspected. They are initiated by a public...