Dod v. Grimes

123 A. 894, 46 R.I. 9

• Court: Supreme Court of Rhode Island
• Decided: April 4, 1924
• Status: Published

Opinions

Vincent, J.

These are three separate actions brought in behalf of the plaintiffs against Joseph W. Grimes as administrator d. b. n., c. t. a. of the estate of Elizabeth Sanderson to recover the amount alleged to be severally due to them for services rendered to the said Elizabeth Sanderson during her lifetime. The cases were originally brought in the District Court of the Fourth Judicial District, where jury trials were claimed on the entry day. All three cases were tried in the Superior Court before a justice thereof sitting with a jury. Verdicts were rendered, for Helen Dod in the sum of $376.26, for Sarah Dod in the sum of $275, and for Sally Dod in the sum of $402.50. The defendant filed a motion for a new trial in each case, said motions were heard and denied by the trial judge.

The cases are now before us upon the exceptions of each of the defendants and they are identical.

These exceptions relate to the refusal of the trial justice to grant the motion of the defendants for a continuance of the cases; to the overruling of the objection of the defendants to certain testimony.; to the refusal of the trial court to direct a verdict for the defendants and to the denial of the motion of the defendants for- a new trial.

Before proceeding to trial counsel for the defendants moved for a continuance of the cases on the ground that a material witness, one William H. Tripp, was ill and unable to attend court, he having recently figured in an automobile accident and was suffering from injuries resulting therefrom. The defendants produced the certificate of a doctor to the effect that he first saw Mr. Tripp on November 4, 1922. A comparison of dates shows that the doctor saw Mr. Tripp on the day following the accident and five days prior to the date set for the trial of the cases, the latter being November 9, 1922. This certificate sets forth the then present physical condition of Mr. Tripp which, in the opinion of the doctor, would not permit him to travel and would demand that he be kept quiet.

In addition to the certificate of the doctor above mentioned counsel for the defendants presented an affidavit setting forth various material facts to which Mr. Tripp would testify if present and to nearly all of which he would be the sole witness.

This affidavit was received and placed on file with the papers in the case. It was not, however, put in evidence, the counsel for the plaintiffs refusing to admit that the witness would, if present, testify to the matters contained therein.

We learn from the transcript of the testimony that the trial court saw the certificate and affidavit, heard the arguments of counsel in relation thereto, and denied the motion for a continuance. Further than this the record furnishes no information and we are not informed upon what grounds .the trial court made its ruling.

In cases of this character, that is, claims against the estates of deceased persons, it seems to us that every reasonable latitude should be allowed in bringing before the court and jury all the circumstances and facts which would aid the latter in coming to a just and proper conclusion. In the cases which we are now considering it would seem to be particularly unfortunate if the defendant should be deprived of the benefit of material testimony solely within the knowledge of Tripp and which if presented to the jury might lead them to a different conclusion from that to which they arrived. The certificate of the physician, in terms, refers to the then «present condition of the witness Tripp and his inability at that time to attend court, or depose. It can be reasonably deduced, however, from such a certificate that the incapacity of the witness was temporary rather than permanent or likely to continue for a long period.

The affidavit fully and explicitly states the facts to which the witness would testify. While it fails to give in precise words the grounds of such expectation, it may be reasonably inferred from it, taken as a whole, that such facts must have been obtained from the witness himself and could not have originated in the mind of the affiant.

There is no specific statement either in the certificate of the physician, or in the affidavit, as to the expectation of procuring the attendance of the witness at a future time, but there again the incapacity appearing to be temporary, any. determination as to its duration could be as easily reached or estimated by the plaintiff as by the defendant.

Although neither the certificate of the physician nor the affidavit are in perfect form we think that they substantially comply with the rules governing such matters.

At the hearing before us it was not claimed either in brief or in argument that the absent witness was in a condition to attend court or to give his deposition.

We think the first exception of the defendant must be sustained. Having reached this conclusion the other exceptions need not be considered.

The first exception of each of the defendants is sustained, and the cases are remitted to the Superior Court, with direction to give the defendants a new trial.