Metropolitan St. Railway v. Gumby

United States Court of Appeals for the Second Circuit · 1900 · Evidence

99 F. 192 (2d Cir. 1900)

Updated August 22, 2026

Evidenceformer testimonydeceased witnesshearsayprivitysame partiessame issuecross-examination

Facts

An eyewitness, Macon Lyons, testified fully about the accident in an earlier action brought by Elizabeth Clayton, as guardian ad litem of the injured child George Gumby, against the same defendant. Lyons had died by the time of the present trial, in which Anne Gumby, the child's mother, sued for loss of the child's services. The trial court allowed plaintiff's counsel to read Lyons's prior testimony over the defendant's objection. The earlier action had been prosecuted by the child's grandmother as guardian ad litem, not by the mother who was the plaintiff in the present suit.

Issue

May testimony given by a now-deceased witness in a prior action be read in a subsequent civil action involving the same accident and defendant when the present plaintiff is not the same party as in the earlier action and is not a privy in blood, estate, or law to that earlier party's claim?

Rule

At common law, testimony of a deceased witness from a former trial is admissible in a subsequent suit only when the point in issue is the same and the parties are substantially the same, or the later party is a privy in blood, in estate, or in law to the former party. The test parallels the one used when a prior adjudication is offered as evidence, and the testimony cannot be admissible for one side unless it would also be admissible against that side in the later action.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A tour bus overturned outside Albany, New York, injuring several riders. In a later suit by Nina Patel against Hudson Crest Transit, Nina seeks to read the trial testimony of Omar Bell, now deceased, who had testified in an earlier suit brought by a different injured rider arising from the same crash; Hudson Crest had cross-examined Omar in that earlier case.

Is Omar's former testimony admissible in Nina's suit?

Explanation. The majority rule requires more than identity of issue and a prior opportunity to cross-examine. In a later civil action, former testimony of a deceased witness is admissible only when the point in issue is the same and the parties are substantially the same, or the later party is a privy in blood, estate, or law to the former party. Separate injured riders are not privies merely because they were hurt in the same accident.