Metropolitan St. Ry. Co. v. Gumby

• Decision Date: 05 January 1900
• Docket Number: 38
• Citation: 99 F. 192
• Parties: METROPOLITAN ST. RY. CO. v. GUMBY.
• Court: U.S. Court of Appeals — Second Circuit

99 F. 192

METROPOLITAN ST. RY. CO. v. GUMBY.

No. 38

United States Court of Appeals, Second Circuit.

January 5, 1900

Charles P. Brown, for plaintiff in error.

M. P O'Connor, for defendant in error.

Before LACOMBE and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

All assignments of error, save one, were abandoned by plaintiff in error upon the argument and that one only need be discussed. One of the eyewitnesses of the accident was Macon Lyons. He was dead at the time of the trial of the cause at bar, but had testified with great fullness to what he saw of the accident, upon the trial of an action brought by Elizabeth Clayton, grandmother of George Gumby, as guardian ad litem, against the same defendant, to recover for pain and suffering, and for any permanent loss of ability to work caused by the accident. After introducing some testimony which is not expecially persuasive, plaintiff's counsel offered to read the testimony of Lyons taken in the son's action. It would appear from the record that the attention of the trial judge was not at the time called to the circumstance that the guardian ad litem who prosecuted the former action was not the infant's mother (the present plaintiff), but his grandmother. Defendant objected that he knew of no rule of law that made it competent testimony. The objection was overruled, and the testimony read defendant reserving an exception. The objection is not formulated in specific terms, to the effect that what was offered was hearsay, and not within any of the exceptions which are recognized to the rule that hearsay is incompetent. Nevertheless, since the objection urged here is of such sort that nothing could have been done by the party offering the evidence to overcome such objection, we may with entire propriety dispose of the question raised here.

The statutes of New York (section 830, Code Cov. Proc.) provide that:

'Where a part or a witness has died or become insane since the trial of an action * * * the testimony of the deceased or insane person * * * taken or read in evidence at the former trial * * * may be given or read in evidence at a new trial * * * subject to any other legal objections to the competency of the witness, or to any legal objection to testimony or any question put to him.'

It is manifest that this does not touch the point at issue. It provides only for a new trials of the same action in which the deceased witness testified. We find no other section of the Code authorizing the admission of such testimony, and the question raised here will have to be disposed of under the principles of the common law.

The entire reliance of the plaintiff seems to be upon a paragraph in the sixteenth edition of Greenleaf on Evidence, enlarged and annotated by Prof. Wigmore, published in 1899. The paragraph (which is the annotator's) is section 163a, and reads as follows 'As to the parties, all that is essential is that the present opponent should have had a fair opportunity of cross-examination. Consequently a change of parties which does not effect such a loss does not prevent the use of the testimony,-- as, for example, a change by which one of the opponents is omitted, or by which a merely nominal party is added. And the principle also admits the testimony where the parties, though not the same, are so privy in interest-- as where one was an executor, or perhaps a grantor-- that the same motive and need for cross-examination existed.'

A very large number of cases are cited by the annotator, all of which have been examined by the court. If the propositions above quoted are read with the qualifications which are indicated by the illustrative examples given in the paragraph, they are sound, and abundantly supported by authority. If they are to be read, however, as plaintiff reads them, namely, as asserting that evidence of a deceased witness may be read in any subsequent suit when it appears that the same issue is involved, that the witness testified under the sanction of an oath, that he was confronted with the person against whom the testimony is offered, and that the latter had the opportunity of cross-examination, then it is not supported by the authorities to which our attention has been called, or which we have been able to discover. Stated thus badly, the proposition imports that when, for example, the derailment of a train because of a misplaced switch has caused injury to a score of passengers, and a witness has testified to the circumstances of the accident in an action brought by A. to recover for his injuries, and has since died, the evidence of such witness may be read by any other injured passenger upon the subsequent trail of his action for damages. No case has been found which lends the slightest support to any such proposition. In all of them it is postulated that the parties must be substantially the same, or, if they are not, that the newcomer must be a privy with the former party in blood, in estate, or in law. There seems to have been some relaxation of the rule in criminal causes. Thus, in Charlesworth v. Tinker, 18 Wis. 633, the deceased witness had testified on a prosecution of defendant for assault, and the testimony was read upon the trial of a civil action against the same defendant for the same assault. The court places its decision on the ground that under the statutes of Wisconsin the complainant in a criminal prosecution for an assault and battery has control of the prosecution, and may examine all witnesses sworn at the trial. In Reg. v. Beeston, 29 Eng.Law & Eq. 529, the deposition of a wounded person, taken before the magistrate in presence of the prisoner (charged with assault with intent, etc.), and where the prisoner has the opportunity of cross-examination, was held admissible on the trial of an indictment for murder, the assaulted person having died. Here the real question is as to identity of the issue. The parties were the same,-- the queen and the prisoner. See, also, Summons v. State, 5 Ohio St. 343. A case which seems to lend some support to plaintiff's contention is Kreuger v. Sylvester, 100 Iowa, 647, 69 N.W. 1059, where, upon the trial of a civil action for assault, the evidence of a deceased witness given on the trial of an indictment for the assault was held admissible. The opinion is very brief. There is no discussion of the subject, and the only citations given are Greenl. Ev. Sec. 164, which sustains no such proposition, and Charlesworth v. Tinker, supra. The decision is so opposed to the almost universal body of authority as to be entirely unpersuasive. A few citations from reported opinions in civil causes will indicate the firmness with which the rule is adhered to that the parties must be substantially the same, or privies, in blood, in law, or in estate. The testimony is either held to be competent because such privity is found to exist, or is held incompetent because no privity is established.

In McDonald v. Cutter (Cal.) 52 P. 120, Melone brought an action against Meyers to foreclose a lien on certain bonds. McDonald, who had bought the bonds at a sale by Meyer's assignee in insolvency, was substituted as defendant. Robinson, to whom Meyers had transferred the bonds before petition in insolvency was filed, and who claimed to own them, paid plaintiff's claim, and secured a dismissal of that action. Held, that Robinson was not subrogated to plaintiff's (Melone's) rights, so as to render a deposition of deceased witness taken in Melone's suit admissible in a subsequent action between McDonald and Robinson's executor.

In Railroad Co. v. Atkins, 2 Lea, 248, it is held that judgment in favor of defendant in a suit brought by husband and wife is ordinarily no bar to a suit brought by the husband alone, nor are depositions taken in the first suit admissible as evidence in the other. Wharton, in his work on Evidence (section 177), states the rule thus:

'Whenever a judgment in one cause would be evidence in the other cause, there evidence of the deceased witness may be reproduced, the witness having been open to cross-examination.'

Several authorities support his proposition that the test to be applied is the same as that used when a prior adjudication is offered as evidence

In Goodlett v. Kelly, 74 Ala. 220, the court, admitting the testimony, says:

'The subject of the controversy in the two suits is the same, involving the title to the same tract of realty; and the parties are the same, excepting only one, who claims title through privity with the plaintiffs in the former suit.'

To the same effect is Wells v. Mortgage Co., 109 Ala. 430, 20 So. 136.

In Smith v. Keyser, 115 Ala. 455, 22 So. 149, the first suit was an action of ejectment brought by plaintiff in her individual capacity against a tenant in possession. The second suit was an action in ejectment brought by the same plaintiff, as executrix, against the same defendant and his landlord, for recovery of the same lands. Held competent:

'The matters in issue and the parties are essentially the same in both actions,-- 'parties,' as thus used, comprehending privies in blood, in law, or in estate.'

Hulin v. Powell, 3 Car.&K. 323, was an action of ejectment against Powell. Vaughan Williams, J., says 'I understand the facts to be that, a former ejectment having been commenced against Mr. Richards, he agreed with Mr. Powell to defend for Powell, the latter allowing him his expenses, so that Powell was substantially defendant in that action. The admissibility of depositions in cases of this kind does not depend upon technical grounds, and one question is, had the lessor of the plaintiff an opportunity of cross-examining the witness? He certainly had, and I see no fair reason for supposing that the cross-examination would have been to a...