103 Mich. 272 | Mich. | 1894
1. The principal question in this case arises upon the following instruction of the court to the jury:
“I allowed this testimony to be introduced as to the mental condition of this woman for the purpose of showing you, or allowing you to judge, as to how long her husband might be deprived of her society, or of her labor as a wife, in the discharge of her domestic duties in the household, and for no other purpose. You are at liberty to investigate all the proof in this case that has been offered to you as to whether this woman is sane or insane. I charge you that, if you shall find that now this woman is without sufficient mental capacity to understand what is going on, you are not at liberty then to consider her testimony in this case at all, for you are only at liberty to consider the testimony of a person who is compos mentis, or of sound mind; for a person who is without sound mind, capable of remembering or giving testimony in a case, is not to be allowed in a court of justice. One of the physicians here testified that she was insane now. If you shall come to that conclusion, then you are not at liberty to regard her testimony at all in this controversy; but if you shall have arrived at the conclusion that she is sane now and capable
No question was raised as to the competency of this witness at the time she was sworn, nor at any time during the giving of her testimony. One of the grounds upon which recovery was sought by the declaration is that she had become “ completely and permanently insane.” If such preliminary question had been raised, it would then have been the duty of the court to examine her, and such testimony as was proper in regard to her condition, and determine whether she was competent to be sworn. Some authorities have said that the preliminary question in such cases is, “Is the witness capable when sworn of understanding the nature of an oath?” To this some authorities add that he must be able to understand the subject with respect to which he is required to testify. When this preliminary question is passed, and the court has determined that the witness is competent to testify, the entire controversy is then transferred to the jury. The court may not say to the jury that the witness is or is not entitled to credence. The jury may reject the testimony entirely or may attach whatever weight to it they choose. We are cited to no authority which holds that it is incorrect to instruct the jury that, if they shall determine from the evidence that a witness is so insane as not to comprehend or be able to understand what she is doing and saying, and to remember what has transpired in regard to the subject about which she is testifying, they should reject her testimony altogether. Such holding, in
It is entirely clear that one clause of the instruction, standing alone, would be error, viz.:
“ One of the physicians here testified that she was insane now. If you shall come to that conclusion, then you are not at liberty to regard her testimony at all in this controversy.”
The language following, however, restricts the above, and clearly conveys the meaning of the learned circuit judge, viz., that if she was then capable of knowing what she was doing and saying, and remembering what transpired at the time of the accident, then the jury were to consider her testimony. In determining the question the jury were further very properly told that they must consider all the testimony in the case, and, if they found that she was capable of understanding, they should give her testimony due weight; if they found, on the contrary, that she was not, then they should reject it. I think this states the true rule.
In Reg. v. Hill, 5 Eng. Law & Eq. 547, speaking upon this precise question, the court said:
“If his evidence had, in the course of the trial, been so tainted with insanity as to be unworthy of credit, it
This is quoted in Coleman v. Com., 25 Grat. 876, and is recognized as the sound and reasonable rule. This is the rule to be deduced from the language of the court in Reg. v. Hill, 5 Cox, Cr. Cas. 259. In that case Lord Campbell, O. J., says:
“ The lunatic may be examined himself that his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he actually is; still, if he can stand the test proposed, -the jury must determine all the rest.”
To the same effect are City of Gainesville v. Caldwell, 81 Ga. 76, and Worthington v. Mencer, 96 Ala. 310.
The case of Mead v. Harris, 101 Mich. 585, is not in conflict with this rule. In that case the preliminary question was raised before the witness was sworn, and the court said that he would instruct the jury that, if they found that the witness was mentally incompetent, they should consider her testimony of no value; and the decision went no further than to hold that it was the duty of the court to determine, in the first instance, whether the witness was competent to testify, before the question could be submitted to the jury. I -do not wish to be understood as holding that it is competent to introduce testimony of insanity to impeach the credibility of a witness. That question is not involved. I find no error in this instruction of the court.
2. Two grounds of negligence were alleged:
(1) That the car was negligently started while plaintiff's wife was standing on the last step.
(2) That the chain with a hook at the end was negligently permitted to hang from' the platform near the steps.
Upon the other questions involved we agree with the Chief Justice.
For this error the judgment must be reversed, and a new trial ordered.
A husband sues for loss of his wife’s, services, by reason of an injury received April 1, 1891, while alighting from one of defendant’s cars, and for expenses incurred by him in her treatment and care. In his declaration he avers that, solely because of the injuries, received by his said wife as aforesaid, he has continually, since said accident up to the present time, been deprived, and will for all future time during the life of his said wife be deprived, of the comfort, fellowship, society, aid, and assistance of his said wife in his domestic affairs, which he, said plaintiff, during all that time ought to have-had, and ought to have and otherwise might have had and should have.
“ Q. Did you see her on the stand this morning?
“A. I saw her about three minutes.
“ Q. Did you think that she was insane this morning ?
“A. I did, most certainly.
“ Q. You would not believe her testimony?
“A. I would not.”
Complaint is made of that portion of the charge to the jury wherein the court said:
“You are at liberty to consider the permanent character of this injury or its lack of permanency. I allowed this testimony to be introduced as to the mental condition of this woman for the purpose of showing you, or allowing you to judge, as to how long her husband might be deprived of her society, or of her labor as a wife, in the discharge of her domestic duties in the household, and for no other purpose. You are at liberty to investigate all the proof in this case that has been offered to you as to whether
This was error. We held in Mead v. Harris, 101 Mich. 585, that the question of the competency of a witness is one for the court, and also that, if a witness who is mentally weak can give lucid, connected testimony, the question of the weight of such evidence is for the jury, under proper instructions. The witness in the present case was examined at length, and told when she boarded the car, who accompanied her, how she notified the conductor where she wanted to get off, and gave a lucid and connected story. Indeed, she is corroborated in her story throughout, except as to the sudden starting of the car before she had reached the ground. The rule laid down in Mead v. Harris, supra, is sustained by a conclusive array of authority. Tayl. Ev. (8th Eng. ed.) §§ 23, 1375; 1 Rice, Ev. p. 532; Coleman v. Com., 25 Grat. 865; District of Columbia v. Armes, 107 U. S. 519. Mr. Wharton says:
“It is now settled that in all cases either lunatic or idiot may be received, if, in the discretion of the court, he appears to have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a ■correct answer to the questions put. The question of ■competency is to be determined by the judge trying the case, upon the examination of the witness himself, or upon the testimony of third persons.” 1 Whart. Crim. Law (5th ed.) § 752, cited in Coleman’s case, supra. See, also, 1 Whart. & S. Med. Jur. § 242.
The subject is ably discussed, in the last case cited, by
In Hartford Ins. Co. v. Reynolds, 36 Mich. 502, the inadmissibility of the testimony was predicated upon professional relationship. The fact of the relationship was disputed. The trial court excluded some matters and received others. This Court held that while, on an intricate question of fact, the jury might properly be consulted, there was room for the claim that all of the intercourse was not confidential, and that too large a range of exclusion was left for the jury. In the present case the question was not an intricate one. The rule is that the person affected with insanity is admissible as a witness if he have sufficient understanding to comprehend the obligation of an oath, and be capable of giving a lucid account of such matters as are in dispute. This question is to be determined in the main upon an examination of the witness when produced.
The court was, we think, right in limiting the recovery to the value of such services as the wife would be likely to have rendered in the discharge of her domestic duties. The declaration covered such services only.
The court erred in instructing .the jury that—
“The jury must take into consideration the domestic relations of the plaintijf and his wife, and the fact that he is not able to support her, and that he does not live with her. The reason assigned that he does not live with her is that he cannot support her; and that is all the evidence on that subject that I know of. She said that, if he could support her, she would live with him; but they had not lived together for a certain time.”
There was some testimony tending to show that, for a short time after the marriage of plaintiff and his wife, he was in Colorado, but there was nothing to show that this separation was because of any domestic infelicity. It seems
“Q. After the injury you stayed and lived with your mother. How long was he away from you after the injury, —after this accident?
“A. I don't know, I am sure. I guess he came to see-me when I was sick. I can't say.
“Q. Are you living together now?
“A. If he could support me; but he is sick, and not. able to support me.
“Q. So you are not living in the same house?
“A. No, sir; he was away trying to get work. There is. no work in Detroit for him, and he cannot get it to do.
“Q. This was in 1891. Have you lived with him at all since that time in the same house?
“A. He came up to my house — my mother's house— when I was sick, so they tell me.
“Q. But as a matter of fact you have not lived together in the same house since 1891?
“A. I believe not; not since they took me from him to-their home. He came there. That was his home as well as mine. We boarded there.”
If because of the injury the plaintiff was not able to-support his wife in her then condition, the fact would not-defeat recovery for loss of her services. If he was sick and unable to support her, and she had been well and assisted in his care and support, that fact certainly would not take away the right to recover. Their separation, so-far as this record shows, was hot the result of domestic-troubles, nor was it an abandonment.
The court gave the following instruction:
“If the jury believe that the hook was in the proper place when the car left the hity hall, and that it was displaced either by Mrs. Bowdle or by some other passenger, and by hanging caught Mrs. Bowdle's dress, then the plaintiff cannot recover, and your verdict must be for the defendant; that is, if this was done without any negligence on the part of the street-railway company, or any contributory negligence on the part of.Mrs. Bowdle.”
This instruction, and other portions of the charge,.
The judgment should be reversed, and a new trial ordered.
The precise language quoted is from the case as reported in 20 L. J. (N. S.) 226.