Tom Reed Gold Mines Company, Corp. v. Moore

• Decision Date: 05 May 1932
• Docket Number: Civil 3137
• Citation: 40 Ariz. 174,11 P.2d 347
• Parties: TOM REED GOLD MINES COMPANY, a Corporation, Appellant, v. JOSEPHINE BERD MOORE, as Administratrix of the Estate of JOE BERD, Deceased, Appellee
• Court: Arizona Supreme Court

11 P.2d 347

40 Ariz. 174

TOM REED GOLD MINES COMPANY, a Corporation, Appellant, v. JOSEPHINE BERD MOORE, as Administratrix of the Estate of JOE BERD, Deceased, Appellee

Civil No. 3137

Supreme Court of Arizona

May 5, 1932

APPEAL from a judgment of the Superior Court of the County of Mohave. D. A. Bridges, Judge. Reversed and remanded, with directions to dismiss complaint.

Mr Louis L. Wallace and Mr. Carl D. Hammond, for Appellant.

Mr S.D. Stewart, for Appellee.

OPINION

ROSS, J.

The plaintiff, Josephine Berd Moore, as administratrix, brought this action under the Employer's Liability Act (article 4, chap. 24, §§ 1384-1390, Rev. Code 1928) against the defendant mining company to recover damages for the death of her husband. She alleges that on August 9, 1924, the decedent, while working in defendant's mine, was injured in an accident due to the condition or conditions of his occupation as a mine driller, and that thereafter, on February 8, 1928, he died as a result of such injuries leaving as his survivors the plaintiff and four minor children. Complaint was filed September 7, 1929.

The only defense in the answer worthy of notice was a general denial.

The case was tried before a jury, and resulted in a verdict and judgment against the defendant. The defendant has appealed from the judgment and an order overruling its motion for a new trial.

The questions we are asked to consider and decide are: (1) Whether or not the plaintiff was entitled to read the stenographic transcript of the testimony of the decedent and three others given on a former trial; and (2) whether or not the proximate cause of death was the accident and injury of August 9, 1924.

For the injury the decedent claimed to have sustained in said accident he himself brought an action for damages, and on the trial thereof he testified and in his testimony related the circumstances of his injury and the result thereof upon his health and ability to work. Tom Reed Gold Mines Co v. Berd, 32 Ariz. 479, 57 A.L.R. 55, 260, Pac. 191. This testimony, and the testimony of three other witnesses bearing upon the decedent's health, appearance, and ability to work before and after the alleged injury, was stenographically taken down and transcribed and read on the present trial. If the testimony of witnesses at the former trial, now dead or out of the jurisdiction of the court, can be read from the transcript into another case, even between the same parties or privies, it is because it is authorized by statute, for such a procedure is not in accordance with the rules of the common law. Without statutory sanction such a transcript, like any other memorandum of what the witnesses testified, might be used to refresh the witnesses' recollection, but it could not be used as original evidence. 22 C.J. 440, § 530; Duffy v. Blake, 91 Wash. 140, 157 P. 480.

While the actions are different, they grow out of the same accident. For the injuries the employee (Joe Berd) suffered he was entitled to recover damages. The right and remedy were personal to him. When he died, they died. But, if his personal representative is able to trace his death to the accident in which she claims he was injured and for which he sued defendant, she may recover damages for the benefit of the surviving widow and children (section 1387, Rev. Code 1928), a new and distinct right of action. Atchison, T. & S. F. Ry. Co. v. Hopkins, 24 Ariz. 103, 207 P. 66. The difference in the two actions is that the plaintiffs are not the same and the measure of damages is different.

The best evidence rule would not permit the proving in the last action what the witness testified to in the first, not even if the parties and issues were identical. But the rule has long been, and it has its origin in the necessities of the case, that, if the witness in the meantime has died or is not available, his testimony given in an earlier trial of the same case is admissible. The rule is often stated to be that the parties and issues in the two actions or proceedings must be the same, yet it is well settled that it is only necessary that they be essentially the same; the word "parties" comprehending privies in blood, in law, or in state. McInturff v. Insurance Co., 248 Ill. 92, 140 Am. St. Rep. 153, 21 Ann. Cas. 176, and note at page 179, 93 N.E. 369; 22 C.J. 428, §§ 513, 514. Neither is it necessary to entitle the evidence on the former trial to be admitted in a subsequent one that the causes of action be identical. If the subject matter to which the evidence relates is the same, it is admissible. Cohen v. Long Island R. Co., 154 A.D. 603, 139 C.J. 430, § 515. Of course, there must have been, in addition to the two essentials above enumerated, a showing that the party against whom such evidence is offered either cross-examined, or had the opportunity to cross-examine, such deceased or inaccessible witness in the previous trial. 22 C.J. 431, § 516.

Under the common law, the method of proving the former evidence of a witness, since deceased or unavailable, was by a person who heard him testify. 22 C.J. 442, § 532; Atchison etc. Ry. Co. v. Osborn, 64 Kan. 187, 91 Am. St. Rep. 189, and note at page 206, 67 P. 547.

In many jurisdictions this rule has been modified by statute expressly authorizing the reading of the testimony of such witness from a transcription of the court reporter's shorthand notes taken upon the former trial, if the conditions as to parties and issues and opportunity to cross-examine required under the common-law rule are present. In other words, such statutes, as interpreted, simply provide a substitute or another method of proving such testimony, but leave the rule as to its admissibility the same. Typical of such statutes is New York's section 830, Code of Civil Procedure (now Civil Practice Act, § 348), reading as follows:

"Where a party or witness has died . . . since the trial of an action . . . the testimony of the decedent . . . taken or read in evidence at the former trial . . . may be given or read in evidence at a new trial . . . of the same subject-matter in the same or another action or . . . proceeding between the same parties to such former action or proceeding."

Under this statute it was held, in Cohen v. Long Island R. Co., supra, that the testimony of a witness who saw the accident in which a brother and a sister were killed, given in an action by the administrator for the death of one of them, could be read in an action by the same administrator for the death of the other, it appearing that said witness had died in the meantime. The court there said:

"The defendants are the same in both actions. The 'subject-matter' to which the evidence relates, to wit, the negligence or lack of negligence of defendants' servant, is the same in both actions, and it is worthy of note that to entitle evidence on a former trial to be read in a subsequent one it is not necessary that the causes of action shall be identical, but only that the subject-matter to which the evidence relates shall be the same. This leaves only open for consideration therefore the question whether in this particular instance both actions were prosecuted by the same person. In a literal sense the same person, to wit, Zipe Cohen, is plaintiff in both actions, although her qualification is different, and it is therefore claimed that Zipe Cohen as administratrix, etc., of Ida Cohen, deceased, is a different person in the eye of the law from Zipe Cohen, as administratrix, etc., of Jacob Cohen, deceased. The distinction is, I think, for the purposes of the question now under consideration rather apparent than real."

The rule here stated seems to be the one generally followed under similar statutes. Our statute, section 4415 of the Revised Code of 1928, is as follows:

"Whenever in any court of record the testimony of any witness in any civil action shall be phonographically reported by an official court reporter and certified by him to be correct, and thereafter said witness shall die or be beyond the jurisdiction of the court in which the action is pending, and his absence is not procured by the party offering the evidence, either party may read in evidence the testimony of said witness in any subsequent trial of or proceeding had in the same action, subject only to the same objection that might be made if said witness were upon the stand and testifying in open court."

It is seen that this statute is materially different from the New York statute. However, under the rule in the Cohen case we think we could reasonably hold that Joe Berd, suing in his own right for personal injuries, and his personal representative, suing for his death growing out of the same accident, were in privy sufficiently to authorize the reading of the former's testimony in the latter's action. But our statute, unlike that of New York, requires that it be in a "trial of or proceeding had in the same action" before "either party may read in evidence the testimony of said witness." As we have seen, the action by the administratrix is not the same as that in which the deceased witness testified. It is not enough under our statute that the litigation in the two actions or proceedings be concerning "the same subject matter"; that is, the same accident. The litigation, it appears, must be in the same action.

Our statute permitting the transcript of the testimony of a deceased witness or one beyond the jurisdiction of the court to be read in evidence in a subsequent trial is somewhat exceptional in its terms. Although it was frist adopted as paragraph 2537 of the Revised Statutes of 1901, it has received no direct interpretation by the courts of this state. A somewhat thorough search has not disclosed to our entire satisfaction its source, but it is so...