Taylor v. Thomas

• Decision Date: 01 December 1914
• Citation: 92 A. 740,77 N.H. 410
• Parties: TAYLOR v. THOMAS.
• Court: New Hampshire Supreme Court

92 A. 740

77 N.H. 410

TAYLOR

v. THOMAS.

Supreme Court of New Hampshire. Merrimack.

Dec. 1, 1914.

Transferred from Superior Court, Merrimack County; Branch, Judge.

Case for negligence by James Taylor against Eliza C. Thomas, executrix. There was a verdict for defendant, and cause transferred on plaintiff's exceptions to the admission of evidence and to instructions to the jury. Exceptions overruled.

The controversy is over responsibility for a collision between an automobile driven by the defendant's testator and a bicycle upon which the plaintiff was riding. Both vehicles were moving in the same direction upon a public street in Concord, when the automobile overtook and struck the bicycle. Further facts appear in the opinion.

Niles & Upton, of Concord, for plaintiff.

Martin & Howe, of Concord, for defendant.

PEASLEE, J. The deposition of a witness had been taken in behalf of the plaintiff. The defendant showed that the witness was ill and unable to be present in court, and offered the deposition in evidence. The plaintiff excepted to the admission of the deposition, because it was taken in his behalf, and therefore could not be used as evidence, except at his election. George v. Fisk, 32 N. H. 32, is relied upon to sustain this contention. Such a rule is there laid down. "Until it was used, it was a piece of evidence belonging to the plaintiff, which he had taken, and over which the defendant had no control. * * * He who takes the depositions uses them or not as he may please, and the other side has no right to them, nor will a court order them to be used or given up for the benefit of the other party." Id. 47, 48.

The theory upon which that case was decided is clearly unsound. The decision is put upon the ground that the deposition was the property of the party who took it. But, as the law is now administered, there is no such thing as property in a piece of evidence. It is now universally recognized that the object of a trial is to ascertain the truth by rational means. The sporting theory—the theory that a judicial trial is a game to be played according to certain rules—has no more place in the present conception of the administration of justice than has the wager of battle. The theory of the case is denied in Carr v. Adams, 70 N. H. 622, 45 Atl. 1084. In the latter case the taker of a deposition objected to filing the same when ordered to do so by the court upon motion of the adverse party, and relied upon the proposition that the deposition was his property, and that so long as he did not elect to use it he could do with it as he pleased. The decision that the court had power to make the order is wholly inconsistent with the theory of a property right in the evidence. If the deposition was otherwise admissible, its use could not be prevented upon the theory that the evidence contained therein was the property of some particular party. Gordon v. Little, 8 Serg. & R. (Pa.) 533, 11 Am. Dec. 632. The deposition came into existence by the exercise of the judicial power of the state. Its taking was permitted to promote the discovery of the truth in the controversy between the parties. When so taken, it became, at common law, evidence to be used by either party under certain circumstances. 2 Wig. Ev. § 1389.

While the power to take depositions is mainly of statutory origin, it is one which has often been conferred, and the nature and admissibility of depositions so taken has been discussed and decided as a common-law question. "So far as the statute confers a judicial power to order the taking of a deposition, the power exists only so far as specified by the statute, because the power did not exist at common law. But where a deposition has been lawfully taken—before a common-law judge in person, or before a master in chancery—the conditions on which it could be used in a common-law court were a simple question of the admissibility of evidence, and were constantly dealt with by the common-law courts, as the rulings in the foregoing sections indicate; hence the principles already established for this purpose at common law remain in force, unless expressly changed by statute. Those principles have nothing to do with the lack of judicial power to initiate the taking of a deposition. It would be unfortunate if the patchwork legislation of the statutes on this subject should be thought to alter the already well-established principles of the common law." 2 Wig. Ev. § 1411.

At the common law, a deposition stands like the testimony of a witness at a former trial. "There is on principle not the slightest ground for failing to recognize all the dispensing circumstances as equally sufficient for both kinds of testimony." 2 Wig. Ev. § 1401. It was formerly held in this state that testimony at a former trial could only be used after the death of the witness (State v. Staples, 47 N. H. 113, 90 Am. Dec. 565), but this case was overruled. "This limitation of the rule is not well founded. The reasons for admitting this class of secondary evidence in the case of a deceased witness apply with equal force in the case of a witness mentally dead, or incapacitated by insanity, or loss of mind from any other cause." Whitaker v. Marsh, 62 N. H. 477, 478. The logic of this decision leads to the conclusion that such evidence should be admitted in any case where it is shown that the physical or mental presence of the witness cannot be had. In the present case it appeared that the witness was sick and unable to attend court. This was a sufficient foundation to permit the introduction of the less highly esteemed class of evidence; that is, her former testimony by way of deposition, upon the same subject and in the same cause.

Much stress has been laid upon the proposition that the statute which provides for the admission of depositions under certain circumstances (P. S. c. 225, § 1) does not cover the present situation. Conceding that this is the correct interpretation of the statute, it by no means follows that the deposition may not be admissible independently of a statutory provision to that effect. The statute does not purport to exclude depositions in any event. No prohibitive language is used. "Presumably, the statutory enumeration will not be treated as intended to exclude other causes unenumerated; this ought to be the construction." 2 Wig. Ev. § 1401. The provisions in the statute permitting the use of depositions under certain conditions are all plainly extensions of the common-law rule as to the admissibility of this class of evidence. They do not purport to limit its use.

In George v. Fisk, 32 N. H. 32, the deposition was taken under statutory provisions. The question presented was whether the deposition could be used in evidence by the party who did not take it. Whatever can be urged concerning the present statute, the one then in force was entirely silent upon this subject. The court evidently so understood the situation, for the question was considered wholly from a common-law viewpoint, and the statute under which the deposition was taken was not cited or referred to. The argument that the case should not be overruled because it places a construction upon a statute which has been re-enacted since the decision was announced (Parsons v. Durham, 70 N. H. 44, 47 Atl. 600) is not well founded. The opinion is not an interpretation of the statute, but the enunciation of a supposed rule of the common law. The question discussed is the common-law value of a deposition legally taken.

The change in the statute introduced by the commissioners in 1867 (Comm'rs' Rep. G. S., c. 211, § 1) merely enlarges the admissibility. Before that time a reason for the absence of the witness was required. Thereafter it was enough that he was not produced in court. This statute was not understood to limit the rule theretofore adopted: That regularly taken depositions were admissible in evidence not merely on the trial of the particular case provided for by the statute, but also in any other case where the same matter was in controversy between the same parties. Leviston v. French, 45 N. H. 21; Bundy v. Hyde, 50 N. H. 116, 119.

The later statute (Laws 1885, c. 27), providing that the deposition of a party might be used by either party, was to that extent a legislative repeal of the supposed rule of the common law, as declared in George v. Fisk, supra, that a deposition was the property of the taker thereof. Neither statute limits or purports to limit the common-law attributes of a deposition as evidence. "The statute merely secures admissibility in certain instances, and is not intended to forbid admission in other instances." 2 Wig. Ev. § 1387.

It is also urged that the ruling here complained of deprived the plaintiff of his right to...