Lyon v. Rhode Island Co.

• Decision Date: 09 July 1915
• Docket Number: No. 4862.,4862.
• Parties: LYON v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

94 A. 893

LYON

v. RHODE ISLAND CO.

No. 4862.

Supreme Court of Rhode Island.

July 9, 1915.

Exceptions from Superior Court, Providence and Bristol Counties; John Doran, Judge.

Action by Harry Lyon against the Rhode Island Company. Verdict for plaintiff, motion for new trial denied, and defendant excepts. Exceptions overruled in part and sustained in part, and case remitted for new trial.

John F. Collins and Waterman & Greenlaw, all of Providence, for plaintiff. Clifford Whipple, Alonzo R. Williams, and Albert N. Peterson, all of Providence, for defendant.

PARKHURST, J. This is an action of trespass on the case brought by Harry Lyon against the Rhode Island Company to recover damages for injuries received by him on the 24th day of July, 1911, through a car of the defendant running into his buggy, thereby throwing him out onto the ground. The case was tried before a justice of the superior court and a jury in December, 1914, and resulted in a verdict for the plaintiff for $3,000. The defendant filed a motion for a new trial for the usual reasons, which motion was denied by the trial justice. Thereupon, it took the required procedure to bring its exceptions before this court

On the date above mentioned, the plaintiff drove, in the course of his business, with his horse and buggy to a point near the entrance of the Rhode Island Hospital Trust Company building on Westminster street. There he hitched and left his horse and buggy standing next to the curbstone, with his daughter sitting in the buggy, on the right side of Westminster street, facing up the street, and went into the Waldorf Lunch to get his breakfast. About 9 o'clock he came out, walked over to where his horse was standing, unhitched it, looked to see if a car was coming, and says that he saw none; he said there was none then in sight; got into his buggy, started to turn around to go toward South Main street, and, as he started to turn, he says he looked again to see if a car was approaching, and he saw a car standing at Reiner's drug store. He proceeded to turn around, and had proceeded partly across the track when this car came along and collided with his buggy, throwing the plaintiff out and injuring him.

Much testimony was taken by both parties, and numerous exceptions were taken by the defendant; but it will only be necessary at the present time to consider in detail a few of the exceptions, in view of the disposition which we shall make of the case in its present aspect.

Defendant's exceptions 3 and 5 were taken to rulings excluding the testimony of George Harrop, given at a former trial. Harrop was the motorman of the car which came in collision with the buggy, and had died prior to the trial of the case at bar. His testimony had been taken and transcribed in the case of Ella Lyon, the minor daughter of this plaintiff, which had been previously tried. It appears that this suit of Ella Lyon v. The Rhode Island Company, was brought in her name by her father (this plaintiff) as her next friend, for recovery for injuries alleged to have been received by her in the same accident, she being the same child spoken of above who was in the buggy with her father at the time of the collision. It further appears that said George Harrop had died after the trial of the Ella Lyon case and prior to the trial of this case; and the defendant offered to prove and read in evidence a transcript of his testimony taken at the former trial. This was objected to by the plaintiff's counsel on various grounds, but his main legal objection was that the former suit was not between the same parties, since the plaintiffs were not the same, Ella Lyon suing for injuries caused to her, and her father (the plaintiff in this suit) suing for injuries caused to him. And on this ground it was excluded by the trial justice, who ruled, with great reluctance, that it was not admissible.

After a careful consideration of the authorities cited on behalf of both parties, we are of the opinion that this ruling was erroneous. While it is obvious that the plaintiffs in the two cases are not the same, it is to be noted that the case of Ella Lyon, who was eight years old at the time of the accident, was brought by her father (this plaintiff), in her name, as her next friend. He was her father, obliged to maintain her and care for her, and it was as much to his interest as to hers that she should recover compensation for her injuries, which would be of material assistance to him in so maintaining and caring for her. He had the full management and control of her suit, subject only to the order and control of the court itself in the interest of the minor child; he employed counsel to act in the case for her, and actually employed the same counsel to bring this suit for himself. The same counsel who appeared for him in the bringing of this suit appeared for his daughter in her case, and it was manifestly for his interest as well as for hers that her case, which was tried first, should be carefully tried, as it might fully develop the facts regarding the alleged negligence of the defendant which would, on that issue, be the same in both cases. It is a fact disclosed by the record that the witness Harrop was fully cross-examined by counsel for this plaintiff, to the extent of upwards of 200 questions, following upon a direct examination of only 38 questions. Under all these circumstances, we are of the opinion that the record discloses such evidence of the substantial identity of interest as between this plaintiff in his suit and the said Ella Lyon as represented by him as her next friend and father in her suit, that it would be the merest technicality to say that the testimony offered was inadmissible by reason of lack of identity of parties or their interests in the two suits. That justice be done to the parties is the first consideration of the court; and, while it is conceded that the general rule regarding the admission of the sworn testimony of a deceased witness taken at a former trial requires that the parties to the suit in which the testimony was given be the same as the parties in the suit in which it is offered or that they be privies in interest at least, yet we find a number of cases in which, in the interests of justice, the strictness of the rule regarding identity of the parties has been relaxed, where the right of cross-examination was had and exercised by the opponent, so that it appears that the witness was subjected to such examination as to deprive his testimony of any ex parte character.

The basis of the rule relating to the admission or exclusion of former testimony of a deceased witness is well stated in 2 Wigmore on Evidence, § 1388, viz.:

"Parties or privies the same. It is commonly said that the parties to the litigation in which the testimony was first given must have been the same as in the litigation in which it is now offered. But this limitation suffers in practice many modifications; and properly so, for it is not a strict and necessary deduction from the principle. At first sight, indeed, it seems fair enough to argue even that a person against whom former testimony is now offered should have to be satisfied with such cross-examination as any other person whatever, in another suit, may have chosen to employ. It is entirely settled that in some such cases he must be satisfied, namely, in cases where the other person was a privy in interest with the present party. The reason for such cases is that there the interest to sift the testimony thoroughly was the same for the other person as for the present person. The principle, then, is that where the interest of the person was calculated to induce equally as thorough a testing by cross-examination, then the present opponent has had adequate protection for the same end. Thus the requirement of identity of parties is, after all, only an incident or corollary of the requirement as to identity of issue. It ought, then, to be sufficient to inquire whether the former testimony was given upon such an issue that the party opponent in that case had the same interest and motive in his cross-examination that the present opponent has; and the determination of this ought to be left entirely to the trial judge. Nevertheless the courts have not, in name at least, often gone so far as to accept so broad a principle."

The author then proceeds to state in detail the main restrictions under which the courts act in admitting such evidence, but throughout the discussion it is evident that the test of admissibility is whether the opposing party has had and exercised the right of cross-examination; e. g., he says, in relation to the introduction of such testimony where the party opponent in the present suit is a privy in interest with the party in the former suit, "That question is merely whether a thorough and adequate cross-examination has been had."

The right of cross-examinution has frequently been held to be the true test of admissibility. Thus in the case of In re Harold R. Durant, 80 Conn. 140, 67 Atl. 497, 10 Ann. Cas. 539. In this case a woman who was opposed to a divorce, but insisted that her husband should furnish her adequate support, applied to the respondent, an attorney at law, for that purpose, who induced her to permit him to engage a detective to secure evidence of her husband's infidelity, upon his representation that the procurement of such evidence would lead to an advantageous settlement of her suit for support. The detective, however, obtained no evidence, and the attorney then suggested to him a Mrs. D., that the latter should solicit and entice the husband to commit adultery with her under such circumstances as would make the detective a witness of the act; but this scheme proved futile. Thereupon the detective and Mrs. D. were persuaded by the respondent to represent to his client that her husband had been criminally intimate with Mrs. D., and the client believed the representations so made....