Miles v. St. Louis, Iron Mountain & Southern Railway Co.
119 S.W. 837
Ark.
1909
Check Treatment
Wood, J.,

(after stating ifche facts). First. The court refused to allow the wife of the appellant to testify, on the express ground that she was not a competent witness. The question therefore as to whether her testimony, if allowed, would have been material and prejudicial is not presented. “Where a witness is rejected on the ground of incompetency, it must be presumed that the witness would have been rejected, no matter how material the evidence might have been.” Rickerstricker v. State, 31 Ark. 208. Moreover, if, as the record shows, her testimony would have tended to prove that Mary Ellen Miles was injured and killed in the manner alleged in the complaint, then the exclusion of it was highly prejudicial. For no one can divine what weight the jury might have given it. Her situation at the’time enabled her to have perhaps a more accurate and comprehensive knowledge of the facts than any other witness. No matter if the testimony of other witnesses tended to prove the same facts, her testimony no doubt would have greatly fortified that of her husband or any other witness, and the jury may have regarded it as more important than any other. It must be presumed that prejudice resulted in the exclusion of a witness who possessed such excellent opportunities for knowing the facts.

At the common law, on the grounds both of identity of interest and public policy, the husband and wife were incompetent to testify for or against each other. 2 Kent’s Com. § 179; 1 Greenleaf, Ev. § 334. But.since the adoption of the Constitution, which provides that “no witness shall be excluded because he is a party to the suit or interested in the .issue to be tried” (Const. 1874, schedule, § 2), the statute which now renders the husband and wife incompetent to testify “for or against each other, or concerning any communication made by the one to the other during marriage” is not grounded upon any identity of pecuniary interest that the one may have in the result of a suit by the other. But the reason for the rule that now excludes them from testifying for or against each other is the “anxious solicitude which the law discovers to preserve domestic tranquillity.” In other words, it is the wise public policy of .conserving and promoting domestic peace and happiness, which has been embodied in the statute. Kirby’s Digest, § 3095; Collins v. Mack, 31 Ark. 684.

This court ihas 'often held that the husband and wife were incompetent to testify for or'against each other in suits where the one or the other was a party in his or her own right, and not in some fiduciary or representative capacity. Phipps v. Martin, 33 Ark. 207; Little Rock & Ft. S. Ry. Co. v. Payne, 33 Ark. 816; Casey v. State, 37 Ark. 67; Miss. River, H. & W. R. Co. v. Ford, 71 Ark. 192; St. Louis, I. M. & S. Ry. v. Courtney, 77 Ark. 431; Mahoney v. Roberts, 86 Ark. 130; Taylor v. McClintock, 87 Ark. 243. To have held otherwise in those cases would have been contrary to the statute supra.

And, so long as identity of pecuniary interest was recognized as one of the basic principles for the rule of exclusion, it would necessarily operate in collateral suits where the husband or wife were not parties to the record, but directly interested in the outcome of the litigation. 1 Greenleaf, Ev. 341. See also Leach v. Fowler, 22 Ark. 143.

But, since interest is not longer to be considered as the reason for the statutory rule, it should not be extended to compass cases that do not come strictly within its terms. As was said by the Supreme Court of Kansas concerning a statute similar to the provision of our Constitution supra: “As our statute has opened wide the door to all persons to be witnesses without regard to their interest in the suit, except as affecting their credibility, we ought not to keep up the disqualification as to the wife being a witness on account of the interest of the husband unless the plain provision of the law forbids any other conclusion.” Van Fleet v. Stout, 44 Kan. 526; Higbee v. McMillan, 18 Kan. 133. Since the old rule disqualifying because of pecuniary interest has passed away, the trend of decisions is to turn on all the light possible in the admission of evidence, leaving the question of credibility for the jury. Schouler’s Dom. Rel. § 53, pp. 53, 54; Rodgers, Dom. Rel. § 290, p. 212 and cases cited. See Railway Co. v. Amos, 54 Ark. 159; Klenk v. Knoble, 37 Ark. 298; Board v. Moore’s Adm’r, 66 S. W. 417; Mitchell v. Brady, 124 Ky. 411.

In Nolen v. Harden, 43 Ark. 307, it is held (quoting syllabus) : “The public policy which forbids a husband or wife from testifying for or against each other does not extend to collateral suits between third parties. In these a wife may testify as to transactions of her husband, where she can do so without breach of matrimonial confidence.”

And in Railway Co. v. Rexroad, 59 Ark. 180, we said (quoting syllabus) : “In an action by a husband as next friend for the sole benefit of an infant child, his wife is a competent witness, as he is merely the manager or conductor of the suit; and the fact that he is liable for costs does not disqualify her, under Mansfield’s Digest, § 2859, providing that husband and wife shall be incompetent to testify for or against each other.”

So here the husband is acting in his fiducial capacity. He is suing for the sole benefit of the estate. If he should recover, and should receive a part of the fund recovered as a distributee of his daughter’s estate, still that would not make the present suit one in his own name and right.

We are of the opinion that when the husband sues, not in his individual but representative capacity, the suit is not by and for him, and therefore the wife in such case is not a witness for him in the meaning of statute.

Second. This being a suit by the administrator for the benfit of the estate, the court should have given appellant’s prayer number three. St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. 7; Air Line Ry. Co.v. Gravitt, 93 Ga. 369 at p. 383; Norfolk & W. Rd. Co. v. Groseclose, 88 Va. 267, s. c. Am. St. Rep. 718; Wymore v. Mahaska County, 78 Ia. 396, s. c. 6 L. R. A. 545, 16 Am. St. Rep. 449; Beach, Contributory Neg. § 131a. As to whether appellant was entitled to a distributive share, should there be a recovery, was not presented in this case. The only issue under the pleadings was whether or not appellant should recover, not for his own benefit, but for the benefit of the estate. There is no count in the complaint seeking to recover for his own benefit as next of ki-n, as there was in the Dawson case supra.

The court also erred in giving prayers numbered two and four.

Instruction number three at the instance of appellee virtually told the jury that the jerking of the train was not negligence, and that if such jerking caused the injury appellee was not liable. This was error. The question should have been submitted to the jury to determine whether the jerking of the train under the cir-stances was negligence.

Instruction number six at the request of appellee placed the burden upon the appellant to prove that appellee was guilty of negligence. ■ At least the instruction was fairly susceptible of that meaning, and was therefore misleading and prejudicial. Appellant 'having shown that his intestate was injured by the operation of the train while she was attempting to board same as a passenger, a prima facie case of negligence against the company was thereby established, and it then devolved upon appellee to prove that it was not negligent. St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 275; Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 552; St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636.

The court erred in modifying appellant’s prayers for instructions numbered one and two. The modification allowed the defense of contributory negligence on the part of the mother of the child, and placed the burden on appellant to prove that the mother was free from contributory negligence. Even if contributory negligence were a defense in such cases, the burden would be upon the one pleading it to prove it. Little Rock & Ft. S. R. Co. v. Eubanks, 48 Ark. 475.

We find no other reversible errors in the record. Eor those indicated the judgment is reversed, and the cause is remanded for new trial.