Soebel v. Boston Elevated Railway Co.

197 Mass. 46 | Mass. | 1907

Knowlton, C. J.

The defendant has filed two bills of exceptions, one founded on instructions to the jury at the trial, and the other on a ruling of the judge at a hearing of certain motions of the defendant for a new trial. The only question argued upon the first bill relates to the judge’s instructions upon the burden of proof. The instructions on this point were quite full, given in part in the original charge, and in part after a question had been raised at its close by the defendant’s counsel. In explaining the term “ burden of proof,” the judge said that the jury could not find in accordance with a particular contention, unless it was “ proved that it was so.” He added: “ By proved that it was so I mean a balance of proof in favor of that theory. . . . The plaintiff must make his side heavier, stronger, in favor of the proposition, to your minds, than that of the defendant, because if your minds remain balanced, you will have to give a verdict for the defendant.” In another place he said, “ Such damages as are proved by a fair preponderance of the evidence she is entitled to recover for, and those which she has not so proved she is not entitled to recover for.” There was considerable of explanation and elaboration, some of which, taken alone, was not expressed in the most felicitous terms; but we think the jury must have understood the law on this subject, the general statement of which was correct. The use of the word “ probable ” in different parts of these instructions was not such as to call for a new trial under the criticism of the charge contained in Haskins v. Haskins, 9 Gray, 390. These exceptions must be overruled.

One of the two motions for a new trial was on the ground of newly discovered evidence. In support of this motion affidavits of different witnesses were filed, setting forth what other persons had said, showing their knowledge of important facts which were not known to the defendant and were not introduced at the trial. One of these persons, from whom very important statements were presented in this way, was out of the State, and it appeared that an affidavit could not be obtained from her. At the hearing the plaintiffs requested that these affidavits be excluded from consideration. In his memorandum accompanying the statement of his decision not to grant the motion, the judge said, “ I decline to receive or consider hearsay statements on either side.” The defendant excepted to this as a ruling, and its bill of exceptions, which was allowed by the judge, contains this statement: “ which ruling was made as a matter of law and not of discretion.” We understand, therefore, that, in dealing with these motions, the judge ruled as matter of law that he could not receive or consider any affidavits, so far as they were statements of hearsay. He also refused, to hear oral testimony upon the motions. He found that the defendant was not chargeable with want of diligence in procuring the testimony disclosed in its. affidavits. We therefore must consider the question whether, at a hearing upon a motion for a new trial on the ground of newly discovered evidence, the moving party is precluded, under all circumstances, from using any affidavits to show the existence of such evidence, other than those of the witnesses themselves who would give the testimony if the new trial was granted.

It is to be noticed at the outset that the primary question before the judge in such a case is not what the truth is, as to the matter to which the newly discovered evidence is directed, but whether there is such evidence. A secondary question is whether it is reliable and important. As a practical consideration we all know that persons who can give important testimony often will not volunteer it, and sometimes decline to give it in any form unless they are forced to. They cannot be compelled to make affidavits, and often the only practicable way of informing a court of the existence of such evidence is by an affidavit of some one to whom they have made oral disclosures. Where the judge declines to hear oral testimony upon the motion, and especially where, as in this case, the witness is out of the Com-* monwealth and declines to make an affidavit, the only practicable way of presenting the fact as to such evidence is by an affidavit which is in part hearsay.

Under Rule 31 of the Superior Court, as construed in Borley v. Allison, 181 Mass. 246, a hearing cannot be obtained on such a motion without a verification of it by affidavit. For such a purpose, an affidavit of the party that he has discovered the evidence, setting forth what it is, and that a credible witness says he has knowledge of the facts as set forth, ought to be enough, if it is shown that the affidavits of the witnesses who know the facts cannot be obtained with reasonable effort. Courts often have refused to grant new trials upon affidavits of what persons have told the affiant about the facts, on the ground that they did not show that the evidence would be of sufficient importance to warrant an order for a new trial. Sheppard v. Sheppard, 5 Halst. 250, 254. Jenny Lind Co. v. Bowyer & Co. 11 Cal. 194, 199. Shumway v. Fowler, 4 Johns. 425. Cardell v. Lawton, 16 Vt. 606. Atkinson v. Saltsman, 3 Ind. App. 139. But the better doctrine is that, while the party ought not to be permitted to prevail unless he furnishes the most convincing evidence that he can readily command, affidavits founded on hearsay should be received on a question of this kind if no better ones can be obtained. Dunbar v. Hollinshead, 10 Wis. 505, 508, 509. Smith v. Cushing, 18 Wis. 295. McLeod v. Shelly Manuf. Co. 108 Ala. 81, 83. Reed v. Staton, 3 Hayw. (Tenn.) 159, 164. White v. Wallen, 17 Ga. 106. Upon the hearing of a motion under this rule of the court, an affidavit of the witness himself, who knows the facts, should be presented if possible. But if the affidavit of what the witness said about it is to be received as a verification of the statement of the motion, for the purpose of entitling the mover to a hearing, it is illogical to say that it could not be received nor considered upon the hearing itself, when better evidence cannot be obtained, and when the fundamental question is not as to the truth of the new evidence, but as to the existence of it. In Lansky v. West End Street Railway, 173 Mass. 20, it was decided that an affidavit of hearsay of this kind is competent, not merely as a foundation for a motion for a continuance, but as a ground for action by the court at the hearing. The principle embodied in this case is decisive of the case at bar. Ex necessitate, in a ease of this bind such affidavits should be received and given such weight as they are entitled to.

This exception must be sustained, and the defendant given a further hearing upon the motion. The relation of the witness to the transaction in which she is said to have taken the principal part, and her statement that she would not give her testimony without the payment of $5,000 may lead the judge to think the evidence of little importance; or, in connection with the other newly discovered evidence, he may think it valuable. This branch of the case is for him alone. But it was his duty to receive and consider the affidavits.

Exceptions sustained.