Parker v. Parker

Knowlton, J.

The only exception argued in this case relates to the exclusion of a deposition offered by the appellant. The deposition taken was that of Dr. E. T. Shepard, of New Orleans, but the interrogatories and cross-interrogatories were addressed to “ E. S. Shepard,” and the commissioner was directed to take the deposition of “E. S. Shepard.”-- In this Commonwealth a middle name or initial is held to be a part of the name of a person, and cannot be disregarded. Commonwealth v. Shearman, 11 Cush. 546 . Terry v. Sisson, 125 Mass. 560 . The name E. T. Shepard imported a different person from E. S. Shepard. Commonwealth v. Buckley, 145 Mass. 181 . The deposition was therefore on its face inadmissible.

But the appellant might show by any competent evidence that E. T. Shepard was the person whose deposition was intended to be taken, and that the appellees were not misled by the name used in the direct interrogatories, and that they intended to interrogate E. T. Shepard in their cross-interrogatories. Such facts may often be found by the presiding judge upon slight evidence, and this is sometimes contained in whole or in part in the papers themselves; but mere opinions of witnesses cannot be received to establish them. And in the case at bar, testimony of the intention of the witness Carmichael, when he wrote the name in the direct interrogatories, to make a T when in fact he made an S, was not competent upon the question whether the appellees were misled by the name as he wrote it. For they had no means of knowing who was meant, or what he intended, except from what appeared on the paper.

Without considering more particularly the other questions in the case, we must sustain these exceptions, on account of error in the ruling in relation to the use of the deposition at the *322 former trial. Tlie appellant offered to show that at that time it war read without objection, and contended that the appellees, by their conduct then, had waived their right to make objection afterward. It was proved and admitted that the appellees’ counsel did not discover the discrepancy in names until after the trial, and thereupon the court ruled that there was no waiver, and that the evidence was immaterial.

It is a general rule, that one cannot be held to waive that of which he has no knowledge; but there are cases in which one’s action is important as affecting the situation or conduct of another, when it is his duty to ascertain facts, and act promptly if he desires to avail himself of his legal rights. In such a case, by failure to act he may waive a right of whose existence he is ignorant.

It was decided in Gould v. Hawkes, 1 Allen, 170 , that a party who permitted depositions to be read without objection at a hearing before an auditor thereby waived his right to object to them afterward on account of formal defects at the trial. It is said in the opinion, that “fairness of dealing required that the plaintiff should object to the depositions as soon as they were offered in evidence, if he then was aware of a cause for objection ; and if he did not discover the alleged defect in them until after the hearing before the auditor, it was an oversight which cannot be allowed to injure the defendant.” The case at- bar is within this decision. Exceptions sustained.