70 Ark. 541 | Ark. | 1902
(after stating the facts.) First. A widow is a competent witness against the executor of her deceased husband, unless her knowledge of the facts was obtained through confidential communications from her husband. The statute is declaratory of the common-law rule. The statute provides: “ The following persons shall be incompetent to testify:
“Fourth. Husband and wife, for and against each other, or concerning any communication made by the one to the other during the marriage, whether called as a witness while that relation subsists or afterwards; but either shall be allowed to testify for the other in regard to any business transacted by the one for the other in the capacity of agent.” Sand & H. Dig., § 2916.
“The great object of the rule,” says Mr. Greenleaf, “is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires cannot be afterwards divulged in testimony, even though the other party be no longer living.” 1 Greenl. Ev. § 337.
The facts proved by the widow were in no sense confidential communications, and, death having ended the marriage tie, she was not excluded by either the letter or spirit of the statute. Pratt v. Delavan, 17 Ia. 307; Denbo v. Wright, 53 Ind. 226; Floyd v. Miller, 61 Ind. 224; Griffin v. Smith, 45 Ind. 366; Mercer v. Patterson, 41 Ind. 440; Beveridge v. Minter, 1 C. & P. 364; Jackson v. Barron, 37 N. H. 494; Smith v. Potter, 27 Vt. 304; French v. Ware, 65 Vt. 338; Stuhlmuller v. Ewing, 39 Miss. 447; 1 Greenl. Ev. § 338; Stein v. Weidman, 20 Mo. 17; Cornell v. Vanartsdalen, 4 Pa. St. 364; Saunders v. Hendrix, 5 Ala. 224; McGuire v. Maloney, 1 B. Mon. 224; Caldwell v. Stuart, 2 Bailey, 574.
In the Missouri and Mississippi cases cited supra the witness was called for the estate of her deceased husband. But under our decisions that could not lessen their authority. Collins v. Mack, 31 Ark. 684; Watkins v. Turner, 34 Ark. 663.
Mr. Rodgers, in his excellent work on Domestic Relations, at section 285, under the title “When Survivor May Testify,” correctly announces the law as follows: “It is no invasion of the policy of the law protecting confidential information possessed by husband and wife for him or her to testify" as to any facts which may have come under observation during the marriage, where the information sought to be elicited by such evidence comes to the knowledge of one or the other, not by reason of the confidential relation, but from observation or otherwise, not as a family secret or in mutual confidence.
Second. The testimony of Mrs. Graves shows that her husband promised plaintiff (appellee) that he would hire a hand to work in plaintiff’s crop while the plaintiff was nursing him; but it does not show that the amount to be paid such farm hand was fixed as the measure of plaintiff’s compensation. There was, therefore, no error in appellant’s request for instruction.
Third. The declarations of deceased were against interest and admissible. 1 Greenl. Ev. § 147.
Affirmed.
