Molloy v. United States Express Co. , 22 Pa. Super. 173 ( 1903 )

Opinion by

Oklady, J.,

When.this case was on its second trial in the court below, the absence of the plaintiff was accounted for by a physician’s certificate as follows: “ To whom it may concern: Alice Malloy, age 73, by reason of physical infirmities and an acute attack of illness which confines her to her bed, is unable at this time to leave the hospital,” and it was admitted by counsel for the defendant that the facts stated in the physician’s certificate were true. Then plaintiff’s counsel proposed to read the testimony of Alice Malloy, taken on a former trial in this same cause, and the official stenographer, who took the notes of testimony, was called and sworn. The testimony which had been filed in the court at the time of the first trial had been lost or mislaid, and the plaintiff offered as a substitute therefor, a duplicate or carbon copy of tbe original, in regard to which the official stenographer testified that he had examined it and that to the best of his knowledge it was an absolutely correct copy and accurate report of the testimony taken on this first trial, and that the original copy filed was merely a transcript of the short notes taken at the time of trial. The evidence was received under objection, and forms the subject of the first assignment of error. As stated by Greenleaf in his work on Evidence (section 163) : “ The chief reasons for the exclusion of hearsay evidence are the want of the sanction of an oath and of any opportunity to cross-examine the witness. But where the testimony was given under oath in a judicial proceeding, in which the adverse litigant was a party, and where he had the power of cross-examination and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony thus given was admitted after the decease of the witness in any subsequent suit between the same parties. It is also received if the witness,- though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane or sick and unable to testify, or has been summoned and appears to have been kept away by the adverse party.” In a note to this section the learned commentator adds, “If the witness is merely out of the jurisdiction, but the place is known and his testimony can be taken under a commission, it is a proper case for the judge to decide in his discretion and upon all the circumstances, whether the purposes of justice will be best served by issuing such commission or by admitting the proof of what he formerly testified.”

By section 9 of the Act of May 23, 1887, it is provided, “Wherever any person has been examined as a witness in any civil proceeding before any tribunal of this commonwealth, .... if such witness afterwards died, .... or if he became incompetent to testify for any legally sufficient reason, and if the party against him had actual or constructive notice of the examination and an opportunity to be present and examine or cross-examine, properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination. ...”

Long before the act of 1887, such testimony was received under proper circumstances. In Emig v. Diehl, 76 Pa. 359, Judge Sharswood said: “ Though we have no express decision upon the subject, it seems to be clear upon principle that the deposition or testimony of a witness formerly taken in the same cause can be read in evidence on showing that he .is sick and unable to attend, insane, or in such a state of senility as to have lost his memory of the past, equally as where he is dead or out of jurisdiction.” This testimony was not offered as.a deposition, but as properly proven notes of the testimony of the witness who had been examined and cross-examined in a former trial of the same cause. It was not suggested that any additional facts had arisen to require further examination of this witness. She was seventy-three years old, in a hospital, and too ill to leave her bed. No request was made to take her testimony under a short rule or to continue the cause. It was a matter specially appealing to the discretion of the court to receive it under the circumstances. The transcript of the short notes made by the official stenographer was as definitely proven as the first copy, which had been filed at the time of the trial, as the one was an exact duplicate of the other. The best evidence of course is the testimony of the witness given in the presence of the jury. Both parties are entitled to have the witness before the jury in propria personae, if that be practicable, but whether it is practicable or not, must be determined by the trial judge, and is largely within his discretion. If the witness, though living and within the jurisdiction of the court, be old, or infirm, or sick, to a degree th'at renders his attendance in court dangerous or unduly burdensome to himself, or impracticable for other reasons, then his deposition may always be substituted for his bodily presence and the determination of this question in each case, as it arises, rests largely in the discretion of the court: Thornton v. Britton, 144 Pa. 126. In Rothrock v. Gallaher, 91 Pa. 108, Judge Mercur states-: “ We cannot see any substantial reason why the testimony of a witness once duly taken in a pending cause, may not afterwards be read in evidence in another causé between the same parties in regard to the same subject-matter, when in the interval the witness has lost his memory by reason of old age and ill health. The justice and propriety of receiving the evidence are as strong as if the witness were dead, insane, out of jurisdiction of the court, or unable to attend by reason of sickness. Although bodily present, yet if shown to have become so bereft of memory by senility or sickness that he is unable to recall a past transaction to -which, he had once testified and has forgotten that he ever testified in regard to it, he may be considered as practically absent, and bis former testimony, if otherwise admissible, may be read in evidence.” The question was clearly decided in Perrin v. Wells, 155 Pa. 299, in which case the plaintiff testified that owing to the wife’s illness she could not be present in court, but offered her testimony taken on a former trial, which was received under objection. The Supreme Court said: “ Under the circumstances there was no error in admitting in evidence the testimony of Mrs. Perrin given at the previous trial,” and the judgment was affirmed. See also Evans v. Reed, 78 Pa. 415; Jack v. Woods, 29 Pa. 375; Knights of Pythias v. Leadbeter, 2 Pa. Superior Ct. 461.

The case of Smith v. Hine, 179 Pa. 203, does not apply here for the reason that the notes of testimony in that case were received in evidence on the ground that they were a deposition, and in regard to which the Supreme Court says : “ They were not a deposition and as the stenographer was not sworn, they were not properly proven notes of the, examination as required by the 9th section of the act of 1887.” Nor does Brennan v. Jacobs, 22 W. N. C. 453, affect the general rule, as the testimony that was excluded was held by the Supreme Court to be either irrelevant or incompetent, and the reason for excluding the testimony does not clearly appear.

The remaining five assignments of error relate to the refusal of the court to give binding instructions to find for the defendant. As they involve questions of fact depending on the interpretations to be given by the jury of disputed facts and inferences, they were properly referred to that tribunal which the law has wisely confided for their determination.

The assignments of error are overruled and the judgment is affirmed.