Lansky v. West End Street Railway Co.

53 N.E. 129, 173 Mass. 20, 1899 Mass. LEXIS 1009

Opinion

Holmes, J.

This is an action for personal injuries. At the trial, the plaintiff’s evidence was that she was run over at a particular crossing, and necessarily the rest of the evidence was more or less inwoven with that as to the place. The defendant then put in evidence that the accident happened at a different place. The plaintiff offered in rebuttal evidence corroborative of her statement, which was rejected, and the plaintiff excepted. It is argued that the evidence for the defendant made a fresh case, which the plaintiff was entitled to meet. But the evidence as to a different place was no more a fresh case than was the evidence of a contract in Phipps v. Mahon, 141 Mass. 471, and Starratt v. Mullen, 148 Mass. 570. It was merely a practical and vivid way of denying and breaking down the plaintiff’s statement of the place, in order to bring the other and more material parts of her case down with it. It follows that the admission or exclusion of the evidence rested in the discretion of the presiding justice. Corey v. Janes, 15 Gray, 543. Eames v. Whittaker, 123 Mass. 342, 345. Howes v. Colburn, 165 Mass. 385, 388.

Before the case was opened, the defendant’s attorney filed his affidavit, under Rule 34 of the Superior Court,

* that he believed that a certain witness, if present, would give certain material testimony as stated. The attorney added that his belief was founded upon the statement of a third person, to whom the absent witness had made his statement. The affidavit was objected to on the ground that the affidavit of the person to whom the witness spoke should be produced, or its absence accounted for. The court ruled that the plaintiff either must submit to a continuance, or must admit that the witness would testify as alleged. The rule of the Superior Court does not require the strictness suggested by the exception, and neither law nor good sense warrants our reading such a requirement into the rule. What is needed to ground the motion is not formal proof that proof will be forthcoming, but simply reasonable ground to believe that it will be. The motion often has to be made unexpectedly and in haste, and it would be unreasonable to exclude hearsay, or hearsay of hearsay, by an absolute rule of law.

Exceptions overruled.

The material part of this rule is as follows: “No motion for a continuance, grounded on the want of material testimony, will be sustained, unless supported by an affidavit, which shall state the name of the witness, if known, whose testimony is wanted; the particular testimony which he is expected to give, with the grounds of such expectation, and the endeavors and means that have been used to procure his attendance or deposition; to the end that the court may judge whether due diligence has been used for that purpose.”