Cole v. Hall

131 Mass. 88, 1881 Mass. LEXIS 191

• Court: Massachusetts Supreme Judicial Court
• Decided: April 6, 1881
• Status: Published

Opinion

Gray, C. J.

The statutes of the Commonwealth authorize depositions to be taken by either party to a civil action, upon giving notice to the adverse party or his attorney of not less than twenty-four hours, with additional time at the rate of one day for every twenty miles’ travel. Gen. Sts. c. 181, §§ 17, 20-22. The manifest design of the Legislature is that the adverse party shall have opportunity to attend in person, or at least by his attorney duly instructed in the cause, to cross-examine the witnesses. It is inconsistent with the spirit and purpose of the statutes to allow one party without restriction to take depositions of witnesses at different places at the same time, or so nearly at the same time that the adverse party or his attorney cannot attend at each place. And we can have no doubt that, if depositions are taken at different places at or near the same time, it is within the power of the court, when the depositions are offered in evidence, to suppress the depositions of those witnesses whom the adverse party has thereby been deprived of reasonable opportunity to cross-examine. Hankinson v. Lombard, 25 Ill. 572. Waters v. Harrison, 4 Bibb, 87. Fant v. Miller, 17 Gratt. 187, 226, 227. Blair v. Bank of Tennessee, 11 Humph. 84. Scammon v. Scammon, 33 N. H. 52, 60. Kimpton v. Glover, 41 Vt. 283.

In this, as in many other matters concerning the introduction of evidence, much must be left to the discretion of the judge presiding at the trial. In the case before us, depositions were taken at places about twenty miles apart at different hours of the same day. If, upon the evidence offered at the trial, the presiding judge had either rejected the depositions taken at Northampton because he found as matter of fact that it was impracticable for the plaintiff or his attorney to attend at both places, or had admitted all the depositions because he found as matter of fact that the failure of the plaintiff to reach Northampton at the time appointed was owing to unreasonable delay on his part in beginning or proceeding with the examination of the witnesses at Greenfield, the decision might not have been subject to exception. But the learned judge having, without considering the evidence offered, erroneously ruled as matter of law that, the provisions of the statutes having been complied with, he could not reject the depositions taken at Northampton, the plaintiff’s exception to that ruling must be sustained. Dix v. Atkins, 128 Mass. 43. Wamesit Power Co. v. Lowell & Andover Railroad, 130 Mass. 455. Kimpton v. Glover, 41 Vt. 287.

The suggestion made by the defendant’s counsel at the argument, that the depositions, the introduction of which he had pressed against the plaintiff’s objection, were immaterial to the issue, is quite unfounded. The alleged libel upon the plaintiff was not limited to a charge of whipping his wife, but included general charges of abusing her; and evidence of her sanity or insanity was, as it was treated by the judge and by both parties at the trial, competent upon the question whether he had used excessive force for her restraint. Exceptions mstamed.