Parker v. Parker

• Decision Date: 03 March 1888
• Citation: 146 Mass. 320,15 N.E. 902
• Parties: PARKER et al. v. PARKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 320

15 N.E. 902

PARKER et al. v. PARKER.

Supreme Judicial Court of Massachusetts, Worcester.

March 3, 1888

COUNSEL

C.H. Conant, J.H. Carmichael, and Geo. H. Stevens for respondent.

The presumption is that the party to whom the interrogatories and commission were addressed, and the party whose deposition is taken under such commission, are one and the same person; and the mere fact that the deponent signs the deposition by a name whose middle initial is different from that given in the commission, does not rebut this presumption. Reeder v Holcomb, 105 Mass. 96; Curtiss v. Martin, 20 Ill. 557; Whitaker v. Wheeler, 44 Ill. 440. Respondent offered to show by the testimony of Mr Carmichael, one of respondent's counsel, "that the middle initial of Dr. Shepard's name, as written in such interrogatories, was made for a 'T,' and not an 'S,' as written and intended by him." This testimony should have been admitted. Smith v. Castles, 1 Gray, 108; Keene v. Meade, 3 Pet. 1; Van Voorhis v. Budd, 39 Barb. 479; Hopkinson v. Watson, 17 Vt. 91; Railroad Co. v. Kindred, 57 Tex. 499; Ellis v. Spaulding, 39 Mich. 366; Kent v. Buck, 45 Vt. 18; Monteeth v. Caldwell, 7 Humph. 13. The objection to the deposition of Dr. Shepard, being a formal one merely, came too late. It should have been made when it was first offered in evidence at the former trial. Not having been so made, the petitioners must be held to have waived such objection. The fact that petitioners' counsel did not notice the discrepancy in the name of Dr. Shepard at the former trial, is immaterial. It was an oversight on their part, which cannot be allowed to injure the respondent. Between the two trials the respondent might have retaken the deposition, and cured any mere formal defect. Gould v. Hawkes, 1 Allen, 170; Tyng v. Thayer, 8 Allen, 396; Doane v. Glenn, 21 Wall. 33; Shutte v. Thompson, 15 Wall. 160; Bartlett v. Hoyt, 33 N.H. 151; Johnson v. Rankin, 3 Bibb. 86; Sewing-Machine Co. v. Lewis, 10 Bradw. 191; McMillan v. Railroad Co., 56 Iowa, 421, 9 N.W. 347; Stowell v. Moore, 89 Ill. 563; York Co. v. Railroad Co., 3 Wall. 113.

J.D. Rouse, for respondent.

The exclusion of the deposition of Dr. E.T. Shepard was error. Failure to make the objection to it at the former trial was a waiver of it, and it could not afterwards be legally made. Gould v. Hawkes, 1 Allen, 170; Bartlett v. Hoyt, 33 N.H. 151; Hogendobler v. Lyon, 12 Kan. 276; Evans v. Hettich, 7 Wheat. 453; Robinson v. Railroad Corp., 7 Allen, 393; Buddicum v. Kirk, 3 Cranch. 293; Wright v. Cabot, 89 N.Y. 577; Holman v. Bachus, 73 Mo. 49; Edwards v. Heuer, 46 Mich. 95, 8 N.W. 717; Spence v. Mitchell, 9 Ala. 744; Transportation Co. v. Leysor, 89 Ill. 43; Stowell v. Moore, Id. 563; Winans v. Railroad Co., 21 How. 88; Blackburn v. Crawford, 3 Wall. 191. The court erred in excluding evidence to show that the interrogatories filed were addressed to Dr. E.T. Shepard and not to E.S. Shepard. Keene v. Meade, 3 Pet. 2; Co. Lit. 3a; Rex v. Newman, 1 Ld.Raym. 562; Franklin v. Talmadge, 5 Johns. 84; Reid v. Lord, 4 Johns. 118, note a; Games v. Stiles, 14 Pet. 322; Bratton v. Seymour, 4 Watts, 329; Roosevelt v. Gardinier, 2 Cow. 463; Edmundson v. State, 17 Ala. 179; State v. Martin, 10 Mo. 391; Kent v. Buck, 45 Vt. 18; Reeder v. Holcomb, 105 Mass. 93.

E.M. Johnson and Prentiss Webster, for petitioners.

The admission of a question put on cross-examination is within the discretion of the presiding judge and is not the subject of exception. Com. v. Shaw, 4 Cush. 593; Prescott v. Ward, 10 Allen, 203; Blackington v. Johnson, 126 Mass. 21. In this state experts only and subscribing witnesses to wills have been permitted to give opinions upon questions of insanity or of mental condition and capacity, and only persons of scientific training upon the subject have been regarded as experts. Com. v. Wilson, 1 Gray, 337; Com. v. Brayman, 136 Mass. 438. As matter of law, Dr. E.T. Shepard and Dr. E.S. Shepard are not the same person. Com. v. Buckley, 145 Mass. 181, 13 N.E. 368. In Massachusetts, the middle name or initial is part of the name of the person, and cannot be disregarded. Com. v. Shearman, 11 Cush. 546; Com. v. Hall, 3 Pick. 262; Terry v. Sisson, 125 Mass. 560. The deposition being that of a foreign witness, if admissible at all, was so at the discretion of the presiding justice. Pub.St. c. 169, § 43; Allen v. Perkins, 17 Pick. 372. And to the exercise of that discretion no exception could be taken. Woods v. Clark, 24 Pick. 35; Stiles v. Allen, 5 Allen, 320. No exception lies to the exclusion of the evidence of James H. Carmichael and Dr. Newman, or to the exclusion of the testimony as to the deposition having been read without objection at the former trial. The statute allowing the testimony of foreign witnesses to be given by deposition, being in derogation of the common law, has always been construed strictly. STORY, J., in Bell v. Morrison, 1 Pet. 355.

OPINION

KNOWLTON J.

The only exception argued in this case relates to the exclusion of a deposition offered by the respondent. The deposition taken was that of Dr. E.T. Shepard, of New Orleans, but the interrogatories and cross-interrogatories were addressed to "E.S. Shepard," and the commissioner was directed to take the deposition of "E.S. Shepard." In this commonwealth a middle name or initial is held to be a part of the name of a person and cannot be disregarded. Com. v Shearman, 11 Cush. 546; Terry v. Sisson, 125 Mass. 560. The name "E.T. Shepard" imported a different person from "E.S. Shepard." Com. v. Buckley, 145 Mass. 181, 13 N.E. 368. The deposition was therefore on its face inadmissible. But the respondent might show by any competent evidence that E.T. Shepard was the person whose deposition was intended to be taken, and that the petitioners were not misled by the name used in the direct interrogatories, and that they intended to interrogate E.T. Shepard in their cross-interrogatories. Such facts may often be found by the presiding judge upon slight evidence, and this is sometimes contained, in whole or in part, in the papers themselves; but mere opinions of witnesses cannot be received to establish them. And in the case at bar, testimony of the intention of the witness Carmichael, when he wrote the name in the direct interrogatories, to make a "T," when in fact he made an "S," was not competent upon the question whether the petitioners were misled by the name as he wrote it, for they had no means of knowing who was meant or what he intended except from what appeared on the paper. Without considering more particularly the other questions in the case, we must sustain these exceptions on account of error in the ruling in relation to the use of the deposition at a former trial. The respondent offered to show that at that time it was read without objection, and contended that the petitioners, by their conduct then, had waived their right to make objection afterwards. It was proved and admitted that the petitioners' counsel did not discover the discrepancy in names until after the trial, and thereupon the court ruled that there was no waiver, and that the evidence was immaterial. It is a general rule that one cannot be held to waive that of which he has no knowledge, but there are cases in which one's action is important as affecting the situation or conduct of...